State Consumer Disputes Redressal Commission
Mittu M. Mujawar vs Rakesh Rameshwarprasad Goyal on 12 November, 2015
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
FA No. 60/2015
Mr. Mittu M. Mujawar,
s/o late Mr. Mehboob Mujawar,
aged 40 years, businessman,
Indian National, resident of
CG-1, Block C, situated at
Tamarind Enclave Khorlim -
Mapusa Goa. ... Appellant
v/s.
Shri. Rakesh Rameshwarprasad
Goyal, son of
Rameshwarprasad Goyal, of
major in age, married, Indian
National, Businessman, H.No.
2079, near Ganpati Temple,
Desainagar, Sankhali Taluka,
Bichokim, Goa. ... Respondent
FA No. 61/2015
Mr. Mittu M. Mujawar,
s/o late Mr. Mehboob Mujawar,
aged 40 years, businessman,
Indian National, resident of
CG-1, Block C, situated at
Tamarind Enclave Khorlim -
Mapusa Goa. ... Appellant
v/s.
Shri. Shriram Prabhakar Bakre,
House No 80-B, Vithalpur,
Karapur, Sankhali,
Bicholim, Goa, 403505. ...Respondent
Appellant/O.P. is represented by Adv. Shri. Matlock D'Souza.
Respondents/Complainants are represented by Adv. Ms. Karuna Bakre.
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Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 12/11/2015
ORDER
[Per Shri Justice N.A. Britto, President] These appeals can be conveniently disposed off by this common order.
2. The appeals have been filed by the OP/JD against separate but identical orders dated 10/8/15 in EA Nos. 9 and 10/14 filed by Complainant/DH Shri. Bakre and Complainant/DH Shri. Goyal, respectively.
3. Some facts are required to be stated to disposed off the appeals.
4. The OP/JD and the respective complainants/DHs filed compromise terms before the Hon. National Commission on 7/5/15. The compromise term filed in the revision petitions filed by the OP are identical except that the sums payable differ. We may reproduce the consent terms filed in the case of complainant Goyal. They read as follows:
1. That the Petitioner shall pay a sum of Rs. 10,66,000/- (Rupees Ten Lakh Sixty Six Thousand only) to the Respondent on or before the 1st June 2015.
2. That the parties have agreed to make and accept the payment by cheque before the District Forum, North-Goa at Porvorim in the execution proceedings which is pending before the District Forum and bearing Execution Application No. 10 of 2014.
3. That the Execution Application shall be withdrawn by the Respondent after realisation of the cheque amount.3
5. The terms were accepted by Order of the National Commission of the same date and the revision petitions were disposed off accordingly.
6. Back home, on 8/6/15 the complainants filed applications styled as applications for restitution, stating that the amount of Rs. 5,33,000/- (in the case of complainant Shri. Bakre) and Rs. 10,66,000/- (in the case of complainant Goyal) were not paid. On the same day, the OP also filed applications (but dated 1/7/15) stating that the said amounts of Rs. 5,33,000/-, in case of complainant Bakre, and Rs. 10,66,000/- in case of complainant Goyal, were paid to them on 1/6/15 by cash and therefore the amount of Rs. 5,11,500/- (deposited in each of the cases) be released to the OP and the execution applications be disposed off.
7. The execution applications were taken up on 22/6/15 pursuant to the notices issued on complainants' applications dated 8/6/15 and the OP on that day requested for time to produce the receipts by which the payment was made to the complainants and proceedings were adjourned to 24/6/15.
8. On 24/6/15 the respective complainants were represented by Adv. Ms. Bakre while the OP was represented by Adv. Shri. M. D'Souza and the latter filed applications to produce the receipts and alongwith the said applications produced Xerox notarized copies of six receipts ( in the case of complainant Bakre) and eleven receipts (in the case of complainant Goyal). The OP was directed by the Lr. Forum to produce the original of the said receipts and the proceedings were adjourned to 30/6/15.
9. On 30/6/15, on behalf of the complainants, a reply was filed (in respective proceedings) stating that the OP had forged the signatures 4 of the complainants on the said receipts in order to misrepresent the Court (Forum) and to play fraud upon the complainants. It was also stated that the complainants had decided to file a separate criminal complaints before the police against the OP. It was also stated that the OP was required to be criminally prosecuted for the fraud committed by him. The complainants also stated that they had not met the OP on 01/06/15 and that the receipts were fraudulently created by the OP. The complainants also prayed that the applications filed by the OP for production of the said receipts be dismissed. The OP sought time on this day for arguments and the cases were adjourned to 9/7/15.
10. On 9/7/15 the OP was represented by Adv. Shri. D'Souza and filed an application to call for the records from the BSNL of the call records on mobile No. 9423820866 of the OP for the period from May 7 to June 7, 2015. The OP also produced a CD of a conversation recorded between the OP and complainant Shri. Goyal; and the case was adjourned to 17/7/15, on which day, the complainants filed a reply, and, arguments were heard on the said application dated 24/6/15 filed by the OP for production of receipts and the case was posted for orders on 24/7/15.
11. On 23/7/15 the OP approached this State Commission in TA Nos. 2/15 and 3/15 and exparte stay was granted in favour of the OP, staying further proceedings in the said execution applications, untill the next date and the next date happened to be 30/7/15.
12. On 24/7/15 Lr. advs. Ms. K. Bakre and Mr. M. D'Souza were present before the Lr. District Forum and execution proceedings were adjourned to 3/8/15 for orders and from 3/8/15 to 10/8/15. The records would show that on 3/8/15 as well as on 10/8/15 the OP 5 remained absent nor was represented. The Order was pronounced on 10/8/15 and the OP's applications dated 24/6/15 in respective cases were dismissed.
13. On 19/8/15, by consent of parties, this State Commission, without going into the merits of the averments made in the transfer applications, directed that the applications for executions filed by the complainants be heard by the two members without the President being a party to the same and accordingly the execution applications were taken up by the two Lr. Members on 21/8/15 and adjourned to 11/09/15.
14. The Lr. District Forum (in the impugned orders dated 10/8/15) has observed that the JD failed to produce the original receipt as directed on 24/4/15 and the Lr. District Forum has further held that upon the perusal of the receipts placed on record (notarized Xerox copies) by the OP they have come to the conclusion that the signatures of complainants on the said receipts are forged and fabricated and they differ from the signatures on the execution applications filed by the complainants.
15. We have heard Shri. D'Souza and Ms. Bakre, the learned advocates of the OP and the complainants.
16. Shri. D'Souza would submit that the Lr. Forum ought to have conducted an enquiry into the fact of payment of the decretal amount to the complainants. We wonder what enquiry was really required to be conducted? A consumer dispute is decided summarily, and is required to be decided speedily, on the basis of 'evidence' which may not even meet the test of 'evidence' under the Indian Evidence Act, 1872, and by following the procedure as laid down in Section 12 and 13 of the C.P. Act, 1986 and the Rules framed thereunder and by 6 following the principles of natural justice. A Forum under the C.P. Act, is not required to follow any other procedure notwithstanding the fact that the proceedings before a Forum are judicial proceedings. A Forum is not a Civil Court within the meaning of the provisions of C.P.C although it has the trapping of the Civil Court (see Malay Kumar Ganguly vs. Dr. Suku Kumar Mukherji, 2009 CTJ 1064). It is also well settled that the Evidence Act is not applicable to the proceedings under the C.P. Act and the "evidence" produced in a consumer dispute, as already stated, may not even be strictly admissible under the Evidence Act.
17. Any enquiry, therefore, had to be restricted to the examining the material produced by the complainants on one hand, and the OP on the other hand to come to the conclusion whether the consent orders were complied with by the OP, as alleged by him, by making the payments in cash.
18. Lr. Adv. Shri. D'Souza then submits that the application dated 24/6/15 could not have been decided piecemeal, and it ought to have been taken for consideration by the Lr. District Forum alongwith the application dated 9/7/15 filed by the OP for production of the CD. We are in agreement with the lr. advocate, in principle. However, lr. advocate does not explain as to why application dated 9/7/15 was not filed alongwith application dated 24/6/15. Lr. advocate also does not explain as to why such an application was filed in the case of complainant Bakre when it is not the case of OP that he also had a talk with complainant Bakre over the phone. Filing of this application dated 9/7/15 is sought to be justified by the OP because the complainants had stated that there was no communication between the complainants and the OP. This is far from truth. All that the complainants had stated is that they saw the OP for the first time before the Forum at Porvorim on 22/6/15, after the Order of the National Commission. Both the statements do not mean one and the 7 same thing. As far as the CD is concerned both the parties have given their own transcription of the CD and we have perused the same. Since the CD was produced by the OP to prove that the OP had a talk with complainant Goyal there would have been no need to summon any details of the calls made by the OP from his own mobile from BSNL. We shall endeavour to consider the said application dated 9/7/15 in case of complainant Goyal in relation to the impugned order which has been passed in dismissing OP's application dated 24/6/15. What we can see from the conversation between complainant Goyal and the OP is that complainant Goyal told the OP that he could give cash or deposit the amount in the bank and to that the OP told the complainant Goyal that he will get cash only to which complainant Goyal told him come with cash in the morning. It is nobody's case that the OP had any talk with complainant Bakre.
19. Lr. Adv. Shri. D'Souza would next submit that the Lr. Forum could not have compared the signatures of the OP from Xerox notarized copies produced by the OP. Lr. Adv. Shri. D'Souza would submit that the originals are still with him. Lr. advocate would submit that the Lr. Forum ought to have appointed a hand writing expert to carry out the comparison. Lr. advocate submits that the OP will not be in a position to cross examine the lr. members of the Forum. We have recorded the submissions of the lr. advocate only to be rejected. We are not inclined to accept the said submissions. It is not the case of the OP that the OP had made any request to the lr. Forum for a handwriting expert to be appointed to compare the signatures. This submission is made for the first time before this Commission. We have already noted that the Lr. Forum had directed the OP on 24/6/15 to produce the original receipts and the OP did not produce the same. Even before this Commission Lr. Adv. Shri. 8 D'Souza only showed us the receipts but did not produce the same. The OP cannot be allowed to take advantage of his own wrong. First of all, the lr. District Forum should have ignored the copies of the receipts, on the failure of the OP to comply with the Order dated 24/6/15 to produce the original receipts. Alternatively, we are of the view that on the failure of the OP to produce the original receipts no fault can be found in case the Lr. Forum compared the signatures of the OP appearing on the said notarized Xerox copies with those on the applications for execution to come to the conclusion that the signatures on the receipts are not of the complainants. The lr. Forum could have done the said comparison under its implied or incidental powers which a Forum has for due administration of justice. The High Court of Bombay in the case of Aires Rodrigues vs. State (unreported judgment dated 12/4/2010 in Cr. Rev. No. 17/2010) has held that "Rules of procedure, whether criminal or Civil must serve higher purpose of justice (see AIR 1958 SC 376). Every Court, from the very nature of its organization cannot be denied certain powers which from the very nature of its organization are essential to its existence and protection and due administration of justice. Nearer home, in State of Karnataka vs. Vishwabarati House Bldg., Cooperative Society, 2003 (2) SCC 412, the Apex Court has held that "the C.P. Act is a self-contained code, and even if it has not been specifically spelt out, must be deemed to have conferred on the Tribunal all powers in Order to make its orders effective". We can only infer that the OP has not produced the originals of the receipts inspite of the said direction given by the lr. District Forum because the OP must still be having some tricks up his sleeves.
20. Lr. advocate would then submit that the police complaints were filed by the complainants only after the President of the Lr. Forum 9 made a statement that the receipts are a fraud. We need not enter into the said controversy at present, after the transfer order was made in the said transfer applications, apart from the fact that it is only a bare self-serving statement of the OP, without any corroboration. However, the fact remains that the complainants have filed police complaints on 3/7/15, which are pending investigation and have also now filed affidavits before this Commission stating that the OP has not paid them a single pie till date and that they have immediately filed police complaints after realizing the fraud committed by the OP.
21. Lr. advocate would also submit that the impugned order dated 10/8/15 was passed behind the back of the OP. We are not inclined to accept this submission, either. On 24/7/15 both the parties were duly represented before the Forum through their respective advocates Ms. K. Bakre and Shri. M. D'Souza. Ms. K. Bakre, lr. advocate would submit that the order dated 23/7/15 in TA No. 2/15 was placed only in EA No. 10/14. However, there is no dispute that both the cases were being taken up simultaneously and the cases were fixed from 24/7/15 to 3/8/15 when Adv. Ms. Bakre appeared before the Forum but the OP as well as his advocate remained absent and the proceedings were adjourned to 10/8/15 for orders on application for production of documents. On 10/8/15 the complainants were present but the OP remained absent and the impugned order was pronounced. How did adv. Ms. Bakre appear on 3/8/15 if no date was given on 24/7/15 ? and if adv. Ms. Bakre could appear on 3/8/15, we see no reason why the OP and/or his advocate could not appear on that day inspite of the fact that on 24/7/15 the advocate of the OP was very much present before the Lr. Forum when the proceedings were adjourned to 3/8/15. We have stated elsewhere, (MA 49/15) that it is quite probable that the order dated 10/8/15 10 dismissing the application dated 24/6/15 was pronounced without the same being dictated or reduced to writing. In our view, the fact that the Lr. Forum chose to cancel the NBW issued against the OP on 21/08/15 has nothing to do about the knowledge of the OP and/or his advocate of the proceedings having been adjourned to 3/8/15 and then again to 10/8/15. In our view, the OP is unnecessarily making capital of his absence, out his own volition, before the Lr. Forum on 3/8/15 and 10/8/15.
22. On the other hand, Lr. Adv. Ms. K. Bakre would submit that complainant Goyal might have stated to the OP on phone that the OP could come with cash in the morning, but lr. advocate submits that there has been no talk about the payment in cash between complainant Bakre and the OP and there is no explanation as to why the OP should have paid cash to complainant Bakre as alleged by the OP when the OP had agreed before the National Commission to make the payment by cheque. Lr. advocate would submit that the complainants are not the authors of the receipts produced by the OP. Lr. advocate would submit that the Forum was within its jurisdiction to compare the signatures of the OPs with those available on record and come to its own conclusion. Lr. Adv. Ms. Bakre would submit that the complainants are from Sankhali while the OP is from Mapusa and the receipts show that they have been executed at Porvorim when it is not the case of the OP that the OP had told atleast the complainant Goyal that he would come with cash to Porvorim. Lr. advocate would submit that the OP is a tech-savy person and chose to record the conversation on the mobile with complainant Goyal but chose not to record the transaction of payment either in the presence of a witness or on the same mobile recorder and therefore it is obvious that the receipts have been fabricated by the OP. Lr. advocate submits that 11 there is no order dated 15/5/15 as mentioned on the receipts and the Order of the National Commission is dated 7/5/15. Lr. advocate submits that in the process of fabrication of the receipts the OP missed the said date and the place of execution of the said receipts. Lr. advocate would submit that till date the complainants have not received a single pie inspite of the compromise arrived at before the National Commission on 7/5/15.
23. The submissions of Lr. Adv. Ms. Bakre, on behalf of the complainants, are impressive indeed, and need to be accepted and they make the case of the OP sound improbable. We asked Lr. Adv. Shri. D'Souza as to why the OP paid the complainants in cash when it was agreed before the National Commission that the payment would be made in cheques. Lr. Adv. Shri. D'Souza submits in reply that the OP deals in cash only and complainant Goyal had told him that the OP could come with cash. And what about complainant Bakre? We are constrained to ask. We are not impressed with this submission of Lr. advocate. The OP was required by consent terms approved by the National Commission to pay the amounts by cheques and it is also otherwise well known that under the relevant provisions of Income Tax Act, 1961, as amended, that when a payment is required to be made of an amount of Rs. 20,000/- the same has to be made by a crossed cheque or a crossed bank draft. And if the OP deals in cash only, how is it that the OP deposited in each case Rs. 5,11,500/- by D.D.? And if OP deals in cash only, why did the OP solemnly agree before the Hon. National Commission to pay by cheque and that too before the District Forum? We again asked the lr. advocate as to why there was need of obtaining so many receipts, namely 5 of Rs. 1 lac and 1 of Rs. 33,000/- in the case complainant Bakre, and 10 receipts of Rs. 1 lac and 1 receipt of Rs. 66,000/- in the case of complainant Goyal? Lr. advocate submits that the 12 complainant thought that he should obtain the receipts in that manner. We are not impressed with this submission, either. Moreover, from where does the OP get cash of Rs. 15,99,000/- at one stretch? A party is expected to produce the best evidence available. Did the OP withdraw this amount from his bank account? or who is the person from whom the OP collected the same? No evidence has been produced by the OP to corroborate the fact of payment of such a large amount in cash.
24. For the above reasons, the claim of the OP that the OP paid to complainant Shri. Goyal Rs. 10,66,000/- and to complainant Shri. Bakre Rs. 5,11,500/- on 1/6/15 needs to be rejected. Consequently, the claim of the complainants that they have not received a pie from the OP and the said receipts are fabricated needs to be accepted. Viewed thus, no fault can be found with the impugned order. The appeals fail and are hereby dismissed with costs of Rs. 5000/- to be paid to each of the complainants.
25. Parties to appear before the Lr. Forum on 18th instant at 10.30 a.m. [Smt. Vidhya R. Gurav] [Shri Justice N.A. Britto] MEMBER PRESIDENT sp/-