National Consumer Disputes Redressal
K-Star Rural Farmer Warehouse vs N. Anki Reddy & Anr. on 22 October, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 706 OF 2021 (Against the Order dated 30/04/2021 in Appeal No. 117/2018 of the State Commission Andhra Pradesh) 1. K-STAR RURAL FARMER WAREHOUSE ...........Petitioner(s) Versus 1. N. ANKI REDDY & ANR. ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER For the Petitioner : Mr. Osama Suhail, Advocate For the Respondent :
Dated : 22 Oct 2021 ORDER JUSTICE DEEPA SHARMA, PRESIDING MEMBER
1. The present revision petition has been filed against the complainant and DENA Bank, respondent nos.1 & 2 respectively. The complainant had since expired and is now represented through his legal heirs. The present revision petition has arisen out of the order of the Andhra Pradesh State Consumer Disputes Redressal Commission ( for short, the State Commission) dated 30.04.2021 in Appeal No. 117 of 2018, whereby the appeal of the petitioner was dismissed and order of the District Consumer Disputes Redressal Forum Kurnool ( in short, the District Forum) dated 28.12.2017 was confirmed. The District Forum vide its order dated 28.12.2017 in CC No. 110 of 2016 had directed the petitioner and respondent no.2 jointly and severally liable to release 95.760 Mt./1260 bags of paddy commodity of the complainant or to pay price value of commodity per quintal Rs.1500/- in total of Rs.14,36,400/- with interest at 9% per annum from the date of discharge of loan dated 30.01.2016 to till the date of realization and further directed to pay Rs.20,000/- towards mental agony and Rs.2000/- as a costs of the case to the complainant. The complainant was directed to pay the warehouse charges to opposite party No.1 from the date of deposit to till the date of delivery of paddy commodity.
2. The brief facts of the case are that deceased/complainant had stored the paddy and maize in the petitioner's warehouse. He took the loan from respondent no.2 and pledged his paddy and maize lying in the warehouse of the petitioner with the bank. At the time when the paddy was stored in the warehouse of the petitioner, who is in the ware house business, he had issued a receipt acknowledging such storage. At the time of sanction of loan by respondent no.2, the original receipt / ware house bond was pledged with the bank. The complainant cleared the loan amount with the bank on 24.06.2015. On repayment of the loan, the complainant asked the bank to release his commodity and bank informed the complainant that it would send the original stock receipt and lien lifting letter to the petitioner. When he approached the petitioner, he was informed that bank had not sent any information regarding release of the stored goods of the complainant. He again approached the bank and the bank officials again informed the complainant that they had already sent receipt and lifting letter. The bank, thereafter, on 31.05.2016, issued a statement of account and a letter dated 31.05.2016 containing the statement that the commodities were lifted by the petitioner and was delivered to them in their presence and the original bonds were destroyed. Despite the fact that the complainant approached the petitioner and the bank several times for the release of his stored goods with the petitioner, same were not released to him and with these allegations he had filed the complaint.
3. The stand of the petitioner before the District Forum in its written statement was that the complaint had been filed on behest of some advocate and that a criminal complaint was also got registered by the petitioner on 24.03.2016 in Atmakur Police Station and was registered as Crime No. 55/2016. His stand was that complainant had taken away the stock on 24.06.2015 through a lorry vehicle bearing no. AP21 W 1659, AP21 X 3114, AP21 TT 1499, AP21 V 9599, AP04 V 9975, AP21 W 3188 and again on 25.06.2015 through lorry bearing no. AP21 TT 7479. On these contentions, it had been contended by the present petitioner that there was no deficiency in service and the goods of the complainant had been released to him on the above dates.
4. The bank had also filed its written version. The bank had admitted the deposit of the original storage receipt by the complainant at the time when the loan was released to him towards pledge of his goods lying in the godown of the petitioner. It is also admitted that on 24.06.2015, the complainant had partially made payment towards the loan and the bank, thereafter, had issued lien lifting letter / release of the pledge on stocks dated 24.06.2015 and issued a letter to petitioner informing that the pledge had been removed from those goods. Subsequently also, on 08.03.2016 and 16.03.2016, the bank wrote the letters to the petitioner regarding release of stock and the petitioner informed them vide letter dated 27.04.2016 that complainant had lifted the commodity.
5. Beside parties before us, there were other opposite parties before the District Forum. The District Forum vide its order dated 28.12.2017 discharged the other opposite parties and put the liabilities on the bank and the present petitioner.
6. The parties herein had filed their evidences by affidavit before the District Forum and the District Forum after assessing the evidences on record, has held as under:
"9. The dispute arises in the present case on hand is with regard to delivery of 95,760 Mt./1260 bags of paddy commodity to the complainant after the discharge of entire loan amount. Opposite Party No.1 mentioned certain lorry numbers in written version and sworn affidavit through which the goods were lifted to complainant. According to opposite party no.1 the commodity was delivered to complainant on two days 24.06.2015 lorry bearing no.AP21 W 1659 and AP21 X 3114 and AP21 TT 1499 and AP21 V 9599 and AP04 V 9975 and AP21 W 3188 and again on 25.06.2015 through lorry bearing no. AP21 TT 7479. But opposite party no.1 did not choose to file even an affidavits of lorry owners to substantiate opposite party no.1 contention. As per the opposite No.2 bank statement (Ex. A-1 and Ex.A2) the loan account is closed on 30.01.2016. As per Ex.B2 the Master Collateral Management Agreement of opposite party no.2 condition No.8 ( 6) the collateral Manager shall endorse the details of release goods on stock receipt/warehouse receipt and in case of partial delivery, endorse the details of balance goods lien but in the stock receipt (Ex.B5) the released column is kept blank without mentioning any delivery details. According to condition No.8 (9) of Master Collateral Management Agreement of opposite party No.2 ( Ex.B2) without gate pass issued by the Collateral Manager the goods shall not be removed out of the storage area. Opposite party No. 1 did not file any gate pass issued by Collateral Manager or any weighbridge bill or challan to establish their contention. The complainant has to issue legal notice to opposite party No.1 before filing the complaint is not mandatory under Consumer Protection Act, 1986. Opposite party No.1 gave a reply letter dated 27.04.2016 by referring the letters 08.03.2016, 16.03.2016 from opposite party No.2 asking about the details of release of stock itself is sufficient to establish that the complainant approach to opposite party No.1 and opposite party No.2 for release of stock and warehouse bonds and opposite party No.2 sent original bonds directly to opposite party No.1. According to opposite party No.2 that the Collateral Manager and opposite party No.1 is sole responsible for release of commodity, the opposite party No.2 is only a facilitator. The Star Argi Warehousing and Collateral Management is not added as a party to the proceeding. On perusal of agreement it is clear that the Master Collateral Management Agreement is between the Argi Warehousing and Collateral Management and Dena Bank. Under condition No. 12(1) the Collateral Manager is responsible to the bank and agree to indemnify the bank if any loss or damage suffered by bank as a result of negligence, default oh the part of Collateral Manager, its officers, or employee or agent in rendering the service as. provided in the agreement. Therefore the complainant is the stranger to the said agreement and Collateral Manager is not a necessary party to the proceedings. As opposite party No.1 is in physical possession of commodity and opposite party No.2 is in constructive possession of commodity hence they are responsible for release of commodity. As per their agreement Ex.B2 the Collateral Manager is responsible to the opposite party No.2 bank only not to the complainant. Opposite party No.2 filed attested copy of stock receipt (Ex.B5) wherein, the release for delivery details column is kept blank and the report of Collateral Manager is not filed. The opposite party No.2 is under obligation on the pledge goods to look after whether the lien was released and stock was delivered to farmer/complainant after the repayment of loan amount but fails to prove the same. Opposite party. No.1 insured the stock with opposite party No.3 for loss or damage caused due to STFI (Storm Tempest Flood Innundation) which are covered under the policy. But events mentioned in complaint is not covered under the above policy. Hence opposite party No.3 is not liable, the complainant is not Consumer to opposite parties 4 to 7. The complaint against opposite parties 3 to 7 is not maintainable.
We consider all the material available on record, facts and circumstances of the case, we found that there is a deficiency of service on the part of opposite parties 1 and 2 and caused mental agony to the complainant. Hence the complainant is entitled for 95.760 Mt./1260 bags of paddy Commodity or price value of commodity per quintal Rs.1,500/- in total of Rs.14,36,400/- and caused mental agony to the complainant. Admittedly, the complainant not paid the warehouse charges to opposite party No.1. Hence complainant under obligation to pay warehouse charges to opposite party No.1 at the time of delivery of commodity. The complaint against opposite parties 3 to 7 is not maintainable."
7. This order was impugned before the State Commission. The State Commission after re-assessing and re-appreciating the entire evidences on record, has held as under:
"23) POINT NO.2:- The following admitted facts can be culled out from the pleadings of the parties. The 1st opposite party has been carrying on warehousing business in the name and style of K-Star Rural Farmer Warehouse at Karivana village, Atmakuru Mandal of Kurnool District. The farmers of vicinity used to store their paddy and maize in the 1st opposite party ware house till they get remunerative market price. The concerned official of warehouse would issue a receipt acknowledging the deposit of paddy stock by the farmers. The Nationalized as well as other banks used to sanction loan to the farmers on pledging the ware house bond/receipt issued by the ware house authority. In the month of April, 2015, the complainant deposited 1260 bags of paddy in the 1" opposite party ware housing godown. The 2nd opposite party sanctioned loan of Rs.5,00,000/- to the complainant basing on the ware house bond/receipt issued by the 1st opposite party. The 2nd opposite party entered into an agreement with Star Agri Ware Housing And Collateral Management Limited on 18.06.2013. Ex.B-1 is the copy of agreement. On 09.10.2015, the 2nd opposite party renewed the Master Collateral Management Agreement with Star Agri Ware Housing And Collateral' Management Limited, vide Ex.B-2. On 24.06.2015, the complainant paid loan amount to the 2nd opposite party. On 31.05.2016, the 2nd opposite party issued a letter, Ex.A-1, to the complainant. Ex.A-2 is the statement of account issued by the 2nd opposite party in favour of the complainant. On 27.04.2016, the 1st opposite party addressed a letter, Ex.B-3 to the 2nd opposite party. Ex.B-4 is the Lien Lifting Letter, dated 24.06.2015, issued by the 2nd opposite party. Ex.B-5 is the storage receipt, dated 14.04.2015, issued by the Collateral Manager. The 3rd opposite party issued Ex.B-6, policy bearing No. 0511021115P111240418, in the name of the 1st opposite party, covering the risk of the stock stored in the ware house godown.
24) The crucial question that falls for consideration is whether the 1st opposite party had released the stock to the complainant? The 2nd opposite party in its written version, in unequivocal terms admitted that the complainant paid the loan amount on 24.06.2015. Even as per the version put forth by the 1st opposite party, the complainant paid the loan amount to the 2nd opposite party. It is a matter of common knowledge that immediately after payment of the loan amount by the farmer, the bank has to hand over the ware house bond to him/her, who in turn submit the same to the concerned officials of the ware house, for release of the stock. The complainant has taken a specific stand in the complaint that he personally pledge the ware house bond/receipt issued by the 1st opposite party with the 2nd opposite party and obtained loan. This fact is not specifically denied by the 2nd opposite party. The lst opposite party has taken a specific plea in the written version that the complainant lifted part of the stock on 24.06.2015 and remaining stock on 25.06.2015. The 1st opposite party maintains stock register showing the deposit and release of the stock to the concerned farmers. Apart from retaining original bonds, the lst opposite party will make necessary and corresponding entries in the release register. It is not the case of the 1st opposite party that it is not maintaining the stock register indicating the date of deposit and the date of delivery of the stock to the concerned farmers. For one reason or the other, the 1st opposite party did not evince any interest to produce such vital document (stock register) to nullify the stand taken by the complainant. The 1st opposite party has taken a stand that the present complaint is filed by the complainant at the instance of the Advocate by name, Ajmathulla and two others. The 1st opposite party did not produce the final report in Crime No. 55 of 2016 to substantiate its stand. The 1st opposite party did not file single scrap of paper to establish that it intimated the release of stock to the concerned Market Committee or the 2nd opposite party. The burden of proof lies on the 1st opposite party to establish that it delivered the paddy stock to the complainant having admitted the deposit of paddy by the complainant. The 1st opposite party did not produce material much less cogent and convincing material to establish that it released the paddy stock to the complainant under proper identification and acknowledgement.
26) The record reveals that the 2nd opposite party has not followed the procedure as contemplated under Exs.B-1 and B-2. Admittedly, the 2nd opposite party did not hand over the ware house bond/receipt to the complainant immediately after payment of the loan amount. If the version of the 2nd opposite party is taken into consideration, the stand of the 1st opposite party that it released paddy to the complainant on receipt of original ware house bond is far away from truth. The 2nd opposite party did not evince any interest to verify from the concerned Collateral Manager whether the stock was released to the complainant.
27) Another interesting aspect is that the opposite parties 1 and 2 have taken mutually self destructive stand so far as release of the stock deposited by the complainant/farmer is concerned. A duty is cast on the opposite parties 1 and 2 to release the paddy deposited by the complainant immediately after payment of loan amount. Non-delivery of the paddy to the complainant amounts to deficiency in service on the part of the opposite parties 1 and 2 as contemplated under Section 2(1)(g) of the Consumer Protection Act, 1986. Hence, this point is answered in favour of the complainant and against the opposite parties 1 and 2."
8. This order is impugned before us. It is argued by learned counsel for the petitioner that impugned order is perverse order since the entire burden to prove that the goods have been released by the petitioner to the complainant has been put upon it. It is also argued that findings are contrary to the evidences on record.
9. We have heard the arguments and have perused the record. This Commission has a limited revisional jurisdiction. It is not required to re-assess and re-appreciate the evidences and substitute the findings of the facts with its own findings. The findings of the Fora below can be disturbed only when t is perverse and without jurisdiction. The findings can be said to be perverse only when it based either on no evidence or material evidence has been ignored. It has been so held by the Hon'ble Supreme Court in "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269" as under:
"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".
10. Again in "Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286," the Hon'ble Supreme Court has reiterated the same principle and has held as under:
"17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
11. In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon'ble Supreme Court has held as under:
"12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction."
12. It is clear that findings on the facts which are concurrent in nature cannot be disturbed unless it is shown that impugned order is perverse, illegal or against settled proposition of law. It is argued by learned counsel that impugned order is against settled proposition of law since the entire burden to prove that the complainant had collected his stored goods from the ware house of the petitioner cannot be solely put upon it and, therefore, the impugned order suffers with perversity. It is settled proposition of law of evidences that party who alleges a fact is duty bond to prove that fact by producing the evidences on record. Positive facts needs to be proved. In this case the contentions which the petitioner had taken is that it had released the stored goods to the complainant on presenting the deposit receipt. The petitioner had also disclosed the lorry number in its written version on which the petitioner had loaded the goods and taken it away. These are the positive facts which the petitioner has contended and, therefore, the burden squarely lies upon the petitioner under the law to prove these positive facts. It was only after he discharges his burden of proving the positive facts that the burden shifts upon the complainant to prove otherwise. Counsel for the petitioner has failed to bring to our notice any evidence on record which could prove these facts. The Fora below have observed that petitioner has not produced any substantive evidence to prove the contentions raised by it. It is also clear that complainant had deposited the original receipt against the goods lying in the petitioner's warehouse with the bank while taking the loan. The bank has nowhere stated that it had handed over the said receipt to the complainant after it cleared the loan. Rather, had taken the plea that it had undertaken the task of sending the bond receipt to the petitioner's ware house for release of the stock to the complainant. If the bank itself states that it had not released the receipt to the complainant, there was no occasion for the complainant to present the receipt to the petitioner and take away his stocks.
13. In view of the above facts, it cannot be said that Fora below have committed any illegality by placing the burden of proof upon the petitioner of those facts which it had contended in its written version.
14. We find no illegality or perversity in the impugned order. The present revision petition has no merit and same is dismissed in limine.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER