State Consumer Disputes Redressal Commission
M/S Raja Agro Industries G.T. Road, Moga vs M/S Om Carrying Corporation, on 22 November, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1621 of 2006
Date of institution : 29.12.2006
Date of Decision : 22.11.2011
M/s Raja Agro Industries G.T. Road, Moga through its sole Prop. Dev Karan s/o
Sh. Nauharia Mal
....Appellant.
Versus
1. M/s Om Carrying Corporation, 43, Transport Nagar, Ludhiana - 144
601 through its Branch Manager.
2. M/s Om Carrying Corporation, 11098-B, East Park Road, New Delhi -
110 005 through its Prop.
...Respondents.
First Appeal against the order dated 15.11.2006 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. J.M. Aggarwal, Advocate
For the respondents : Sh. Gurmukh Singh, Advocate
PIARE LAL GARG, MEMBER:
This is an appeal filed by the appellant/complainant-M/s Raja Agro Ind. (hereinafter called 'the appellant') against the order dated 15.11.2006 of the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called the 'District Forum') by which the complaint of the appellant was partly accepted by the District Forum.
2. Brief facts of the case are that the Devkaran was sole proprietor of the appellant firm, which is a seasoned industry First Appeal no. 1621 of 2006 2 manufacturing Thresher with Rehree and Parnala. The respondents are running carrier business and the appellant delivered 20 thrashers with Rehree and Parnala at Ludhiana on 24.3.2003 for delivery of the same against payment of Rs. 1,98,350/- plus freight charges of Rs. 27,920/-. It was pleaded by the appellant that instructions were given to the respondents to deliver the articles against payment only but they did not follow the same. The appellant came to know that the goods were delivered against fake documents/delivery and on inquiry regarding the same by the appellant, no response was given by the respondents. Later in the month of May 2003, the appellant came to know that the respondents had delivered the goods to the party and received the payment and freight charges from him but the same were not remitted to the appellant. Legal notice in this regard was also sent but of no use. It was pleaded that the respondents cannot be exempted from its negligence as it was specially mentioned against the Transport receipt that "party se 1,98,350/- ka draft ley kar hi mal deliver kare, Unload main party se hi extra lene hai". The respondents neither paid the received amount nor returned the original GR. It was pleaded that the respondents were liable to pay the received amount with interest @ 18% per annum from May, 2003 i.e. the date of receipt of the amount from the person to whom the goods were delivered; till payment. It was prayed that the respondents may be directed to pay Rs. 1,98,350/- with interest @ 18% per annum from May, 2003 till payment and Rs. 5,000/- may be awarded as litigation expenses.
3. Upon notice, the respondents replied by taking preliminary objections that the appellant was doing a commercial activity as such, does not fall under the definition of 'consumer', concealed the material facts and has not come to the District Forum with clean hands, appellant First Appeal no. 1621 of 2006 3 has not impleaded all the necessary parties, District Forum has no jurisdiction to try and decide the complaint as the goods were loaded at Moga and not at Ludhiana. On merits, it was pleaded that the appellant in a clever way is trying to recover the amount from the respondents as well as from Agro Trading Corporation, Forbes Ganj, Bihar. It was pleaded that he took the payment from Agro Trading Company through cheque and thereafter, requested the respondents to deliver the goods. On the asking of the appellant, the respondents delivered the goods to the party. It was specifically pleaded that if the respondents not returned the original GR to the appellant then how he had produced the copy of the same with the complaint. It was pleaded that Agro Trading Corporation, Forbes Ganj, Bihar was a necessary party to bring out the truth. The GR was for self and not to any particular party, as such, the condition to deliver the goods on payment does not arise. It was admitted that the respondents are doing the business of common carrier and also admitted that the appellant loaded the goods at Moga on 24.3.2003. It was pleaded that the appellant has not mentioned in the G.R. to whom the goods were to be delivered at Forbes Ganj. The appellant never approached the respondents, which was clear from the notices dated 14.8.2004 and 1.11.2004, which he served upon Agro Trading Co., Forbes Ganj, Bihar. It was pleaded that the appellant had already received the payment and there was no negligence on the part of the respondents. All other allegations were denied and dismissal of the complaint was prayed.
4. Learned District Forum after hearing the learned counsel for the parties and going through the record, partly allowed the complaint and the respondents were directed to pay Rs. 10,000/- to the appellant.
5. Hence, the appeal for the acceptance of the complaint in toto. First Appeal no. 1621 of 2006 4
6. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
7. It is the admitted case of both the parties that the appellant had booked 20 thrashers with Rehree and Parnala with respondent No. 1 on 24.3.2003 against G.R. Ex. C-3. There is no dispute between the parties that it was mentioned in the G.R. Ex. C-3 that the goods may be delivered to the consignee i.e. Agro Trading Corporation situated at Forbes Ganj, Bihar against a draft of Rs. 1,98,350/- i.e. the value of the goods from the consignee and it was also mentioned in the G.R. that the un- loaded expenses may also be charged from the consignee. The version of the appellant is that respondent No. 1 delivered the goods to the consignee without receipt of value of the goods and against the instructions vide which the goods were booked by the appellant with the respondents. When the value of the goods was not paid to the appellant by respondent No. 1 then he inquired from the respondents and he came to know that the goods were delivered by the respondents without the receipt of the bank draft of Rs. 1,98,350/- i.e. the value of the goods. Notice Ex. C-1 was served by the appellant upon the respondents but all in vain.
8. On the other hand, the version of the respondents is that after the receipt of the notice Ex. C-1 dated 12.2.2005, the same was replied by the General Manager of the respondents, which is produced by the appellant itself as Ex. C-2 that the goods were lying in their godown and demurrage charges on daily basis are being imposed, so you approach the consignee and arrange the delivery of the goods to save from the demurrage charges. It is also the version of the respondents that the consignee had paid the value of the goods to the appellant vide cheque First Appeal no. 1621 of 2006 5 dated 5.4.2004. It is also the version of the appellant by affidavit of Neel Jain, Manager of Om Carrying Corporation that he replied notice dated 12.2.2005 of the appellant on 15.2.2005 that goods lying of the appellant relating to other G.Rs. as the appellant was regularly booking the goods with the respondents.
9. We have perused the copy of the cheque Annexure C-3 of Rs. 1,98,350/-, which was issued by Agro Trading Corporation in favour of the appellant firm as the value of the goods.
10. We have also perused the Annexure C-2, which was issued by Dharam Pal Bansal, Advocate on 1.11.2004 to M/s Agro Trading Corporation through Parkash Aggarwal that the cheque dated 5.4.2004 of Rs. 1,98,350/-, which was issued as price of the goods which were purchased by him from the appellant firm was dis-honoured by the Central Bank of India, Forbes Ganj, Bihar vide memo "Exceed arrangement" and as such, they had committed offence under Section 138-B and 142 of the Negotiable Instrument Act.
11. We have also perused summon Annexure C-1 of Sh. R.L. Chohan, P.C.S., Civil Judge (Junior Division), Moga, which was issued to Sh. Parkash Aggarwal, Proprietor of Agro Trading Corporation i.e. the consignee to whom the goods were delivered by the respondents as per the allegations of the appellant without receipt of the bank draft of the value of the goods.
12. From the Photostat copy of the summon Annexure C-1, Legal Notice Annexure C-2 and Cheque Annexure C-3, it is proved beyond doubt that the price of the goods was made by the consignee to the appellant through cheque Ex. Annexure C-3 in the year of 2004 i.e. after eleven months of the delivery of the goods by the respondents to the consignee First Appeal no. 1621 of 2006 6 without the receipt of the bank draft of the value of the goods when it was specifically mentioned in the G.R..
13. But it is also proved beyond doubt that the appellant had accepted the cheque and presented the same in the bank for the collection of the amount and on dishonour of the same, the complaint under Section 138 of the Negotiable Instruments Act was filed by the appellant against the proprietor of the consignee firm in the Court of Civil Judge, Jr. Divn., Moga.
14. So from the above discussion, it is proved beyond doubt that the respondents were deficient in service for delivery of the goods without the collection of the bank draft of the goods from the consignee. As such, they are rightly held by the District Forum as deficient in service and had imposed Rs. 10,000/- as compensation to be payable to the appellant.
15. When the appellants had accepted the cheque and presented the same in the bank, we are of the view that the appellant is now not entitled for the recovery of value of the goods from the respondents as the cheque was issued by the consignee in the name of the appellant and complaint under Section 138 of the Negotiable Instruments Act is pending between the appellant and the consignee and he will recover the amount in dispute from the consignee. If we order the respondents to pay the value of the goods to the appellant and recover the same from the consignee, it will increase multiplicity of litigation. To save the parties from the same, we are of the view that the order passed by the learned District Forum is legal and valid and there is no ground to interfere with the same.
16. The appeal being without any merit is dismissed and the impugned order of the District Forum is affirmed and upheld. No order as to costs.
First Appeal no. 1621 of 2006 7
17. The arguments in this appeal were heard on 11.11.2011 and the order was reserved. Now the order be communicated to the parties.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
November 22, 2011. (Piare Lal Garg)
as Member