State Consumer Disputes Redressal Commission
Umeed Co-Operation Producer Co. Ltd. & ... vs Sh. Tilak Raj. on 8 June, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 308/2018
Date of Presentation : 06.11.2018
Order Reserved on : 20.11.2019
Date of Order : 08.06.2020
......
1. Umeed Co-operation Producer Company Ltd. Corporation Office B-
1345/46 IInd Phase G.D. Colony Mayur Vihar Phase-III Delhi-
110096 through its General Manager Shri Parduman Rana s/o Sh.
Krishan Singh R/O Village Niyadi PO Gurchal Tehsil Nurpur Distt.
Kangra- Himachal Pradesh.
2. Sh. Kewal Rana s/o Sh. Krishan Singh R/O Village Niyadi P.O.
Gurchal Tehsil Nurpur Distt. Kangra H.P Branch Manager cum
authorised signatory Branch Chowari Tehsil Battiyat Distt. Chamba
HP of Umeed Co-operation Producer Company Ltd. Corporation
Office B-1345/46 IInd Phase G.D. Colony Mayur Vihar Phase-III
Delhi-110096.
...... Appellants/Opposite Parties
Versus
Tilak Raj aged 70 years son of Shri Khushiya Ram resident of Village
Jatroon Tehsil Bhattiyat District Chamba Himachal Pradesh.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes.
For Appellants : Mr. Vinay Soni Advocate.
For Respondent : Mr. Rajesh Arora vice Mr. Sat Prakash
Advocate.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj
F.A. No.308/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 08.10.2018 passed by Learned District Consumer Forum/ Commission in consumer complaint No.72/2018 titled Tilak Raj Versus Umeed Co-operation Producer Co. Ltd. & Anr. Brief facts of consumer complaint:
2. Complainant Shri Tilak Raj Senior Citizen aged 70 years filed consumer complaint under Consumer Protection Act pleaded therein that Shri Parduman Rana and Sh. Kewal Rana are real brothers and both are residents of Village Niyadi P.O. Gurchal Tehsil Nurpur District Kangra (H.P). It is pleaded that Shri Parduman Rana and Sh. Kewal Rana opened office in Nagar Panchayat Chowari Tehsil Bhattiyat District Chamba (H.P) in the name and style of RDPL Landmark & Infrastructure Ltd. and after some time changed its name to Umeed Co-operation Producer Co. Ltd.
and appointed cashier, agents and other staff and convince the people of area that they have opened financial institution and they would pay handsome rate of interest on maturity in different scheme. It is further pleaded that Shri Parduman Rana and Sh. Kewal Rana informed general public that they are Incharge and owner of RDPL Land Mark & Infrastructure 2 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 Ltd. and Umeed Co-operation Producer Co. Ltd. and they are having their head office at Delhi and they have also other branches all over India. It is further pleaded that complainant deposited an amount of Rs.100000/-(One lac) in FD issued by Umeed Co-operation Producer Co. Ltd. Annexure-A1. It is pleaded that Sh. Parduman and Kewal Rana issued receipt Annexure-A1 after receiving consideration amount of Rs.100000/-(One lac) and assured payment of Rs.111000/-(One lac eleven thousand) after one year on maturity date i.e. 31.08.2017. It is further pleaded that complainant deposited another amount of Rs.100000/-(One lac) with Umeed Co-operation Producer Co. Ltd. vide FD Annexure-A2. It is pleaded that maturity amount was Rs.150000/-(One lac fifty thousand) and maturity date was 03.06.2019. It is pleaded that opposite parties did not pay amount on maturity date and closed the office. It is further pleaded that FIR No.70 dated 14.07.2017 was also registered under section 420, 467 & 468 of IPC in police station Chowari District Chamba (H.P). It is pleaded that opposite parties committed deficiency in service and committed unfair trade practice.
3. Complainant sought relief to the effect that opposite parties be directed to pay an amount of Rs.111000/- (One lac eleven thousand) as maturity amount alongwith 3 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 interest @ 18% per annum w.e.f. 01.09.2017 till actual payment. In addition complainant sought relief to the effect that opposite parties be directed to pay principal amount of Rs.100000/-(One lac) alongwith interest @ 18% per annum w.e.f. 03.12.2015 till actual payment. In addition complainant sought relief of payment of litigation costs and compensation. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite parties pleaded therein that consumer complaint is not maintainable. It is pleaded that learned DCF/DCC has no jurisdiction to entertain and dispose of consumer complaint. It is further pleaded that complainant has suppressed material facts and consumer complaint is bad for non-joinder of necessary parties. It is further pleaded that office was open by company which is registered with office of Deputy Registrar of companies National Capital Territory of Delhi and Haryana and later on registered with Registrar of companies Bihar. It is pleaded that owner of company is Sh. Praveen Kumar S/o Sh. Hawa Singh. It is pleaded that Shri Kewal Rana was appointed as CSC Incharge w.e.f. 01.10.2013 on salary of Rs.10000/-(Ten thousand) per month. It is pleaded that Sh. Parduman and Kewal Rana have acted as employees of company.
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Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018
5. It is further pleaded that FDRs issued under the employment of Proprietor of company. It is pleaded that proprietor of both companies i.e. Umeed Co-operation Producer Co. Ltd. and RDPL Land Mark & Infrastructure Ltd. is one person. It is further pleaded that M.D of company fled away and all branches of company which were more than 250 (Two hundred fifty) were closed. It is pleaded that FIR was lodged and M.D of company was arrested. It is pleaded that no case was filed in criminal court of law against M.D of company. It is further pleaded that Sh. Parduman and Sh. Kewal Rana are not personally liable to pay the amount because they have acted as employees of the company and they have deposited the amount with the company. It is pleaded that opposite parties have not committed unfair trade practice and have not committed any deficiency in service. Prayer for dismissal of consumer complaint sought.
6. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned DCF/DCC ordered opposite parties to pay jointly and severally a sum of Rs.111000/-(One lac eleven thousand) alongwith interest @ 9% per annum from date of filing of complaint till actual payment. Learned DCF/DCC further ordered opposite parties to pay jointly and severally principal sum of Rs.100000/-(One lac) alongwith interest @ 9% per 5 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 annum from date of deposit i.e. 03.12.2015 till actual payment. In addition learned DCF/DCC ordered that opposite parties would jointly and severally pay compensation to complainant to the tune of Rs.7500/-(Seven thousand five hundred) for mental pain and agony. In addition learned DCF/DCC ordered that opposite parties would jointly and severally pay a sum of Rs.5000/-(Five thousand) to complainant as litigation costs. Feeling aggrieved against order passed by learned DCF/DCC opposite parties filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant Sh. Tilak Raj aged 70 (Seventy) years filed affidavit Ext.CW-1 in evidence. There is recital in affidavit that deponent deposited an amount of Rs.100000/-
(One lac) in FDR for a period of one year on dated 31.08.2016. 6
Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 There is recital in affidavit that deponent deposited another amount of Rs.100000/-(One lac) in FDR for a period of 42 months on dated 03.12.2015. There is recital in affidavit that opposite parties also issued FD certificates Annexure-A1 & Annexure-A2 in favour of deponent.
10. There is recital in affidavit that after expiry of maturity date of FD certificate Annexure-A-I complainant approached for maturity payment of FD amount but opposite parties did not pay FD maturity amount to deponent. There is recital in affidavit that some of depositors have also filed FIR No.70 dated 14.07.2017. There is recital in affidavit that opposite parties have committed deficiency in service and unfair trade practice.
11. Complainant also filed corroborative affidavit of Sh. Sham Singh Ext.CW-2 in evidence. There is recital in affidavit that Shri Parduman Rana and Sh. Kewal Rana S/o Krishan Singh R/o Vill. Niyadi P.O. Gurchal Tehsil Nurpur District Kangra (H.P) came to deponent in the month of February 2014 and told that they would open office of financial institution. There is recital in affidavit that Shri Parduman Rana and Sh. Kewal Rana also told that they would pay more interest than banks. There is recital in affidavit that Shri Parduman Rana and Sh. Kewal Rana told that they are proprietor of financial institution. 7
Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018
12. There is further recital in affidavit that Shri Parduman Rana and Sh. Kewal Rana took shop on rent basis from deponent and executed rent agreement @ Rs.2000/-(Two thousand) per month. There is recital in affidavit that people started depositing the amount in F.D. There is recital in affidavit that Shri Parduman Rana and Sh. Kewal Rana after receiving huge amount from general public did not pay FD amount to the general public on maturity date. There is recital in affidavit that thereafter FIR was also registered. State Commission has carefully perused all annexures filed by complainant.
13. Opposite parties filed affidavit of Shri Parduman Rana Ext.OPW1-1 in evidence. There is recital in affidavit that deponent is permanent resident of Village Niyadi P.O. Gurchal Tehsil Nurpur District Kangra (H.P). There is recital in affidavit that opposite parties did not open office in Nagar Panchayat Chowari Tehsil Bhattiyat District Chamba (H.P). There is recital in affidavit that factually office was opened by Umeed Co-operation Producer Co. Ltd. which is registered with office of Deputy Registrar of Companies in National Capital Delhi and Haryana. There is recital in affidavit that later on office was registered with Registrar of companies Bihar. There is recital in affidavit that owner of company is Sh. Praveen Kumar S/o Sh. Hawa Singh. There is recital in 8 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 affidavit that deponent and Sh. Kewal Rana were appointed as CSC (Common Service Centre) Incharge on salary of Rs.10000/-(Ten thousand) per month.
14. There is further recital in affidavit that deponent and Sh. Kewal Rana have acted under employment of Proprietor company. There is recital in affidavit that deponent and Sh. Kewal Rana have informed customers regarding fraud committed by Umeed Co-operation Producer Co. Ltd. There is recital in affidavit that M.D of company fled away and all branches of company which were more than 250 (Two hundred fifty) were closed. There is recital in affidavit that FIR was lodged by depositors which was investigated by Criminal Investigating Agency and M.D of company was also arrested by Criminal Investigating Agency. There is recital in affidavit that deponent and Sh. Kewal Rana could not release the amount because deponent and Sh. Kewal Rana have deposited amount with company not in personal capacity but as employees/agents of the company.
15. Shri Kewal Rana also filed affidavit Ext.OPW2-1 in evidence. There is recital in affidavit that deponent was employee of the company and deponent was not proprietor of the company. There is recital in affidavit that M.D of company fled away and all branches of company which were more than 250 (Two hundred fifty) were closed. There is 9 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 recital in affidavit that FIR was lodged and M.D of company was also arrested by Criminal Investigating Agency. There is recital in affidavit that FDR amounts in question already stood deposited with the company not in personal capacity of deponent but as employee/agent of company. State Commission has carefully perused all annexures filed by opposite parties.
16. Submission of learned Advocate appearing on behalf of appellants that Sh. Parduman Rana was General Manager and Sh. Kewal Rana was Branch Manager of company and they were employees of the company and principal is liable for act of agents in due course of business and on this ground appeal filed by appellants be allowed is decided accordingly. It is proved on record that FDRs annexure-A1 & Annexure-A2 were executed by Umeed Co- operation Producer Co. Ltd. in favour of complainant who is senior citizen of India. It is also proved on record that opposite parties received consideration amount of Rs.100000/-(One lac) each for FDRs from complainant and thereafter issued FDRs in question. It is also proved on record that maturity dates of FDRs Annexure-A1 & Annexure- A2 were 31.08.2017 & 03.06.2019. It is also proved on record that after expiry of maturity date of one FDR Annexure-A1 complainant demanded FD maturity amount to the tune of 10 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 Rs.111000/-(One lac eleven thousand) but opposite parties did not pay amount.
17. In the present matter consideration amount was directly personally received by Sh. Parduman & Sh. Kewal Rana on behalf of Umeed Co-operation Producer Co. Ltd. as employees/agents of company. State Commission is of the opinion that Sh. Parduman and Sh. Kewal have played active role in receiving consideration amount of FDRs in question from complainant directly. It is not expedient in the ends of justice and on the principles of natural justice to exonerate Sh. Parduman and Sh. Kewal Rana from liability.
18. It is proved on record that FDRs receipts annexure-A1 & Annexure-A2 were issued by Umeed Co- operation Producer Co. Ltd. in favour of complainant after receiving amount of Rs.100000/-(One lac) each from complainant. State Commission is of the opinion that Umeed Co-operation Producer Co. Ltd. is under legal obligation to pay maturity amounts to the tune of Rs.111000/-(One lac eleven thousand). It is proved on record that maturity date of one FDR expired on dated 31.08.2017. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to exonerate Umeed Co-operation Producer Co. Ltd. from liability. 11
Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018
19. Submission of learned Advocate appearing on behalf of appellants that maturity date of FDR annexure-A2 has not expired at the time of filing consumer complaint and maturity date of FDR had expired on 03.06.2019 during the pendency of appeal and Umeed Co-operation Producer Co. Ltd. is not liable to pay the amount of Rs.100000/-(One lac) alongwith interest @ 9% per annum prior to maturity date is decided accordingly. It is proved on record that offices of Umeed Co-operation Producer Co. Ltd. have been closed as of today. It is admitted by Sh. Parduman Rana and Sh. Kewal Rana that office of Umeed Co-operation Producer Co. Ltd. stood closed as of today. It is also admitted by them that M.D of company i.e. Umeed Co-operation Producer Co. Ltd. has fled away and later on arrested in criminal case. In view of the fact that all offices of Umeed Co-operation Producer Co. Ltd. stood closed as of today and in view of fact that M.D of Umeed Co-operation Producer Co. Ltd. fled away and FIR was registered State Commission is of the opinion that Sh. Tilak Raj is legally entitled for refund of principal amount of Rs.100000/-(One lac) alongwith interest @ 9% per annum prior to maturity date mentioned in FD annexure-A-2.
20. Submission of learned Advocate appearing on behalf of appellants that FIR was registered and in Criminal Investigation no criminal case was registered against M.D of 12 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 Umeed Co-operation Producer Co. Ltd. by Criminal Investigating Agency and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission is of the opinion that liabilities are of two kinds (1) Civil liability (2) Criminal liability. State Commission is of the opinion that after issuance of FDRs Receipts Annexure-A1 & Annexure-A 2 by Umeed Co-operation Producer Co. Ltd. in favour of complainant with undertaking to pay amount of Rs.111000/-(One lac eleven thousand) and Rs.150000/-(One lac fifty thousand) it is not expedient in the ends of justice and on the principles of natural justice to exonerate appellants from liability. Admittedly proceedings under Consumer Protection Act are civil in nature and not criminal in nature qua consumer complaint. Even as per section 162 of Code of Criminal Procedure 1973 any proceedings of Criminal Investigating Agency if reduced into writing then same could not be used for any purpose except for contradicting witness as provided under section 145 of Indian Evidence Act 1872. See AIR 1999 Apex Court 1969 titled Ram Prasad Versus State of Maharashtra.
21. Submission of learned Advocate appearing on behalf of appellants that learned DCF/DCC has not properly appreciated evidence adduced by the parties and has not properly appreciated laws involved in present matter and on this ground appeal filed by appellants be allowed is decided 13 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 accordingly. State Commission is of the opinion that privity of contract proved inter se complainant and Umeed Co- operation Producer Co. Ltd. vide FDRs Annexure-A1 & Annexure-A2 issued in favour of complainant. State Commission is of the opinion that Umeed Co-operation Producer Co. Ltd. is under legal obligation to pay an amount of Rs.111000/-(One lac eleven hundred) to complainant on maturity date of FDR dated 31.08.2016 issued in favour of complainant and liable to pay principal amount of Rs.100000/-(One lac) alongwith interest in view of closure of all offices of Umeed Co-operation Producer Co. Ltd. as of today.
22. It is well settled law that parties could not approbate and reprobate at the same time. See AIR 1993 SC 352 R.N. Gosain Versus Yashpal Dhir. See AIR 1993 (P&H) 172 titled Shri Mahender Singh Versus Sh. Hukam Singh and other. Even opposite parties in version have admitted issuance of FDRs in question in favour of complainant. It is well settled law that facts admitted need not to be proved.
23. Submission of learned Advocate appearing on behalf of appellants that learned DCF/DCC Kangra (H.P) has no territorial jurisdiction to entertain and dispose of consumer complaint and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission has carefully perused memo of parties. 14
Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 Complainant has impleaded Umeed Co-operation Producer Co. Ltd. through its General Manager Sh. Parduman Rana S/o Sh. Krishan Singh R/o Vill. Niyadi P.O. Gurchal Tehsil Nurpur District Kangra (H.P) and complainant has also impleaded Umeed Co-operation Producer Co. Ltd. through Sh. Kewal Rana son of Sh. Krishan Singh R/o Vill. Niyadi P.O. Gurchal Tehsil Nurpur District Kangra (H.P) in the capacity of Branch Manager of Umeed Co-operation Producer Co. Ltd.
24. As per Consumer Protection Act consumer complaint could be filed where opposite party resides. Admittedly in the present matter address of both Sh. Parduman and Sh. Kewal Rana have been mentioned as R/o Vill. Niyadi P.O. Gurchal Tehsil Nurpur District Kangra (H.P) which falls within territorial jurisdiction of learned DCF/DCC Kangra (H.P). In view of above stated facts it is held that learned DCF/DCC Kangra (H.P) has territorial jurisdiction to entertain and dispose of present consumer complaint.
25. Submission of learned Advocate appearing on behalf of appellants that there is no relation of consumer between complainant and opposite parties and on this ground appeal filed by appellants be allowed is decided accordingly. It is proved on record that Umeed Co-operation Producer Co. Ltd. issued FDRs receipts Annexure-A1 & Annexure-A2 in favour of complainant through Sh. Parduman and Sh. Kewal who have acted as General Manager and Branch Manager on 15 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 behalf of Umeed Co-operation Producer Co. Ltd. and both have received consideration amount from complainant directly on behalf of Umeed Co-operation Producer Co. Ltd. In view of fact that Sh. Parduman and Sh. Kewal have received consideration amount personally directly from complainant on behalf of Umeed Co-operation Producer Co. Ltd. and played active role it is not expedient in the ends of justice and on the principles of natural justice to exonerate them from liability.
26. Submission of learned Advocate appearing on behalf of appellants that present consumer complaint is bad for non-joinder of necessary parties and on this ground appeal filed by appellants be allowed is decided accordingly. Complainant has impleaded Umeed Co-operation Producer Co. Ltd. through its General Manager namely Sh. Parduman Rana and complainant has impleaded Sh. Kewal Rana as co- party as Branch Manager of Umeed Co-operation Producer Co. Ltd. It is well settled law that consumer complaint could be filed against institution through its General Manger cum Authorised Signatory and could be filed through Branch Manager cum Authorised Signatory.
27. Submission of learned Advocate appearing on behalf of appellants that complainant did not approach learned DCF/DCC with clean hands and suppressed material facts and on this ground appeal filed by appellants be allowed 16 Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 is decided accordingly. Complainant has filed consumer complaint on the basis of FDR receipts Annexure-A1 and Annexure-A2 issued by Umeed Co-operation Producer Co. Ltd. in favour of complainant wherein Umeed Co-operation Producer Co. Ltd. received consideration amount of Rs.100000/-(One lac) for each FDRs from complainant and promised to pay an amount of Rs.111000/-(One lac eleven thousand) and Rs.150000/-(One lac fifty thousand) respectively on maturity dates of FDRs but despite expiry of maturity date of FDR Annexure-A1 Umeed Co-operation Producer Co. Ltd. did not refund maturity amount to complainant and M.D of company fled away and closed all offices of Umeed Co-operation Producer Co. Ltd. It is held that complainant has cause of action against Umeed Co- operation Producer Co. Ltd.
28. Submission of learned Advocate appearing on behalf of complainant that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of learned DCF/DCC and it is held that order of learned DCF/DCC is strictly in accordance with laws and in accordance with proved facts. Point No.1 is decided accordingly. 17
Umeed Co-operation Producer Company Ltd. & Anr. Versus Tilak Raj F.A. No.308/2018 Point No.2: Final Order
29. In view of findings upon point No.1 above appeal filed by appellants is dismissed. Order of learned DCF/DCC is affirmed. FDR receipt No.50054 dated 31.08.2016 Annexure-A1 and FDR receipt No.50013 dated 03.12.2015 Annexure-A2 issued by Umeed Co-operation Producer Co. Ltd. in favour of complainant shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
30. Certified copy of order be sent to learned DCF/DCC for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Due to winter vacation of State Commission w.e.f. 11.01.2020 to 23.02.2020 and due to country wide lockdown on account of Corona virus appeal is decided today. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K. Verma Member 08.06.2020 K.D 18