State Consumer Disputes Redressal Commission
S.K. Aggarwal vs Vijay Gupta @ Virjesh Gupta on 29 August, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 29.08.2008 Appeal No.769/2006 (Arising from the order dated 07.07.2006 passed by District Forum(South-II) Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No.1100/2004) 1. Sh. S.K. Aggarwal ... Appellants E-348, Nirman Vihar, New Delhi. 2. Smt. Krishna Gupta, W/o Sh. S.K. Aggarwal, E-348, Nirman Vihar, New Delhi. Versus 1. Sh. Vijay Gupta @ Virjesh Gupta.. Respondents Proprietor M/s. Pyare Lal Devender Kumar, C-1/66, Safdarjung Development Area, New Delhi. ALSO AT 5124, Rui Mandi, Sadar Bazar, Delhi. 2. Case No.1575/2004, Vijay Kumar Gupta, Manju Gupta, Vasudha Gupta & Sonam Gupta, 217/1, Ram Bhawan, Sadar Bazar, Delhi. 2. Case No.1576/2004, S. C. Gupta, Pushpa Gupta, 217/1, Ram Bhawan, Sadar Bazaar, Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. As many as three complaints filed before the District Forum bearing No.1575/2004, 1576/2004 and 1100/2004, against the respondent were dismissed by the District Forum vide impugned order dated 07.07.2006 on the premise that the appellant accepted the cheques given by the respondent towards full and final settlement.
2. Feeling aggrieved only the appellants Sh. S.K. Aggarwal and Smt. Krishna Gupta have preferred this appeal.
3. Allegations of the appellants in brief were that they deposited their moneys with the proprietorship firm of the respondent on interest. As per the statement of account dated 31.03.2002 certain amounts were due to the appellants from the respondent. However, the respondent made only some part payments as mentioned in the complaint. In the complaint case No.1575/2004 and 1576/2004 it has been averred by the complainant that the respondent impressed on the complainant that due to failure in business he was not able to meet his liabilities in full and he offered to settle the account of payment of 43% of the outstanding. This was accepted by the complainants in these cases reluctantly. However later on they came to know that the respondent had paid over 79% to Mrs. Raj Rani Gupta, Kumari Bharti and Rahul. Hence the complainants in these two cases have claimed the balance with interest. In complaint case No.1100/2004 filed by the appellants it has been stated that the respondent had made only part payment to them. However, there is no mention of any settlement etc.
4. In the defence the respondent had taken the plea that in complaint case No.1575/2004 and 1576/2004, admittedly the payment was made to the complainants in full and final settlement of their claims. The complainants also executed receipt in this regard. Hence the complainants cannot challenge the settlements in these summary proceedings. As to complaint No.1100/2004, the respondent has placed on record the copies of the cheques dated 18.04.2003 vide which the payments were made to the appellants in this case in full and final settlement of their claims against the respondent. These cheques bear the endorsement made by the respondent on the reverse issued against full and final payment. These cheques were encashed by the appellants without raising any objection against this endorsement.
5. We have perused the impugned order closely and find that the District Forum has observed that in complaint case No.1575/2004 and 1576/2004 admittedly the payment was taken in full and final settlement of their claim and the complainants also issued receipt in this regard and therefore the appellant cannot challenge the same. With regard to complaint No.1100/2004 copy of the cheque dated 18.04.2003 vide which the payments were made also shows that cheque was issued in full and final settlement of their claim. This is also observed that the endorsement in this regard was made on the reverse of the cheque.
6. Admittedly these cheques were encashed by the appellants without raising any objection against the endorsement. On this premise the District Forum accepted the defence of the respondent that the cheques were issued in full and final settlement of the claim in this case and also in other two cases. However, it is contended by the counsel for the appellants that at the time when the cheques in question were given to the appellant there was no endorsement on the reverse of the cheque.
7. In order to show that there was no such endorsement, the appellant has relied upon the annexure -8 i.e. the certificate issued by the Syndicate Bank, certifying that one cheque amounting to Rs.20,000/- has been credited in his account on 30.02.2004. This amount was credited by cheque of HDFC bank. It is contended that had there been an endorsement on the cheque that these were being issued towards full and final settlement the amount of Rs.20,000/- would not have been given subsequently and this circumstance itself belies the stand of the respondent that it was given in full and final settlement. It is further contended by the counsel that when the principal amount was not paid by the respondent, the question of making full and final settlement does not arise. Thus according to the appellant the respondent in connivance with the bank officials had put the endorsement later on.
8. In our view if there was some fabrication, forging on the back of cheque having been put after the cheques were issued in connivance with the bank officials, the appellants should have raised this question before the District Forum and got the documents examined by the hand writing expert, but once there was documentary evidence and there was endorsement in writing duly made by the respondent then there is no ground for interfering with the finding of fact returned by the District Forum as it is the documentary evidence which has precedence over all oral claims and counter claims of the parties.
9. Let us assume that said cheque was not issued towards full and final settlement because of the cheque amount being not even principal amount. However, it has been stated by the counsel for the respondent that the respondent has already gone under the liquidation, and official liquidator has been appointed if it so then the appellant will be at liberty to approach the liquidator to recover the balance amount and liquidator shall entertain such a claim so that appellant can at least recover the principal amount.
10. In the result the appeal is dismissed with the aforesaid liberty to the appellants.
11. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 29th day of August, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri