State Consumer Disputes Redressal Commission
M/S Duni Chand Harbans Lal vs Janta Tent House on 19 November, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1572 of 2003
Date of institution : 25.11.2003
Date of decision : 19.11.2009
M/s Duni Chand Harbans Lal, Goldsmith, 2/49 Gandhi Chowk, Abohar through its
Proprietor/Partner Anil Beri, resident of Abohar, District Ferozepur.
.......Appellant
Versus
Janta Tent House, Shop No.7, Jain Dharamshala, Circular Road, Abohar through
its Proprietor/Partner Sanjeev Beri, resident of Abohar.
......Respondent
First Appeal against the order dated 7.10.2003 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Lt. Col. Darshan Singh (Retd.), Member.
Shri Piare Lal Garg, Member.
Present :-
For the appellant : Shri Rajesh Bhateja, Advocate. For the respondent : Shri Munish Goel, Advocate for Shri S.P. Kheriwal, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
The respondents had advanced certain amounts to the appellants on 16.12.1987 on interest basis. Another amount of Rs.50,000/- was deposited by the respondents with the appellants on 10.3.1988. More amounts were being deposited by the respondents with the appellants. As on 31.3.2002 an amount of Rs.10,22,648.56P was outstanding against the appellants. They were also bound to pay interest at the rate of 19% per annum for the period from 1.3.2001 to 31.3.2002.
2. It was further pleaded that out of the interest amount the appellants had deducted a sum of Rs.17,061/-. They had deposited this amount with the Central First Appeal No.1572 of 2003. 2 Government on account of TDS and the balance amount of interest to the tune of Rs.1,67,250.73P was transferred in the account of the respondents. The appellants had been making the payment of different amounts on different dates. In the month of February 2003, the respondents requested the appellants to refund the amount with interest but they failed to do so. Alleging deficiency in service on the part of the appellants, the respondents filed the complaint against them in the District Consumer Disputes Redressal Forum, Ferozepur (in short "District Forum") for the refund of Rs.10,22,648.56P with interest at the rate of 19% per annum. Compensation and costs of litigation were also prayed.
3. The appellants filed the written reply. It was denied if there was any transaction between the parties or if there was any agreement regarding the rate of interest or if the respondent had deposited any amount with the appellants for one year or the period of deposit was to be extended in case of non-refund. The appellants are not the bankers. Therefore there was no question of fixing any date of maturity. It was denied if on 31.3.2002 an amount of Rs.10,22,648.56P was payable by the appellants to the respondents or if the interest at the rate of 19% per annum was payable or if the interest amount from 1.4.2001 to 31.3.2002 came to the tune of Rs.1,67,250.73P or if the respondents had taken any money from the appellants thereafter or if the appellants had deposited any amount with the Income Tax Department. All these transactions were in the hands of Devi Dass father of the parties and not in the hands of the appellants.
4. It was further pleaded that the appellants had delivered jewellery to the respondents to the tune of Rs.10,02,648/- on 27.3.2003 and now this amount was recoverable by the appellants from the respondents. It was denied if there was any deficiency in service on the part of the appellants. Legal objections were also pleaded and the dismissal of the complaint was prayed.
5. Sanjeev Beri proprietor of Janta Tent House respondents filed affidavit Ex.C1. The respondents also proved documents Ex.C2 to Ex.C94. On the other First Appeal No.1572 of 2003. 3 hand, the appellants filed the affidavit of Anil Beri as Ex.R1. The appellants also proved documents Ex.R2 and Ex.R3.
6. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint with costs of Rs.1,000/- vide impugned order dated 7.10.2003 and the appellants were directed to refund the amount of Rs.10,22,648.56P with interest at the rate of 18% per annum from 31.3.2002 till realization.
7. Hence this appeal.
8. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 7.10.2003 be set aside.
9. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
10. Record has been perused. Submissions have been considered.
11. So far as the maintainability of the complaint in the District Forum is concerned the law on the subject has been settled by the Hon'ble Supreme in a number of judgments and it was held that the provisions of Section 3 of the Consumer Protection Act, 1986 (in short "the Act") specifically laid down that the remedy under the Act is an additional remedy. Section 3 of the Act reads as under:-
"3. Act not in derogaton of any other law.--The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
12. This provision was considered by the Hon'ble Supreme Court in the judgment reported as "Fair Air Engineers Pvt. Ltd. v. N.K. Modi" (1996)4 CTJ 749 (Supreme Court) (CP). It was observed by the Hon'ble Supreme Court as under:-
First Appeal No.1572 of 2003. 4
"15. Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well-founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
16. It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the First Appeal No.1572 of 2003. 5 Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the dispute would be otherwise those given in the Act."
13. This view of law was repeated by the Hon'ble three Bench judgment of the Hon'ble Supreme Court reported as "Skypak Couriers Ltd. v. Tata Chemicals Ltd." 2000 CTJ 321 (Supreme Court) (CP) in which it was held by the Hon'ble Supreme Court as under:-
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in First Appeal No.1572 of 2003. 6 addition to the provisions of any other law for the time being in force."
14. The same view of law was repeated by the Hon'ble Supreme Court in another judgment reported as "Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through Legal Representatives and others" 2004 CTJ 1 (Supreme Court) (CP) in which it was held by the Hon'ble Supreme Court as under:-
"13. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar."
15. Hon'ble Supreme Court in M. Lalitha's case (supra) relied upon various other judgments of Hon'ble Supreme Court and it was specifically held that the provisions of Section 90 of the Tamil Nadu Cooperative Societies Act, 1983 do not bar the remedy of the consumer under the Act and it was held by the Hon'ble Supreme Court as under:-
"The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the First Appeal No.1572 of 2003. 7 mental agony, suffering, etc., which possibly could not be given under the Act in relation to dispute under Section 90 of the Act. Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act, reference to which is already made above. When the decision of Dhulabhai's case was rendered, the provisions similar to 1986 Act providing additional remedies to parties were neither available nor considered. If the argument of the learned counsel for the appellant is accepted, it leads to taking away the additional remedies and forums expressly provided under the 1986 Act, which is not acceptable."
16. Hon'ble Delhi High Court has gone still ahead and gave wider interpretation to the provisions of Section 3 of the Act in the judgment reported as "HINDUSTAN MOTORS LTD. v. AMARDEEP SINGH WIRK & ORS."
III(2009) CPJ 417 (DB). It was held that the proceedings under the Consumer Protection Act, 1986 and the proceedings in the civil court can proceed simultaneously even if issues involved in the two proceedings are substantially similar. It was further held that the remedies under the Act and the civil court are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude jurisdiction created under the Consumer Protection Act, 1986. It was held by the Hon'ble Delhi High Court as under:-
"15. On the contrary, the judgments of the Supreme Court, as noticed above, clearly state that as per First Appeal No.1572 of 2003. 8 Section 3 of the Act the provisions of the Act are in addition to and not in derogation of any other provision of any other law for the time being enforced. Having due regard to the scheme of the Act and the purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar."
17. Even the Hon'ble National Commission was pleased to hold in the judgment reported as "MAHYCO MONSANTO BIOTECH (I) LTD. & ANR. v. BODDULURI JEEVAN KUMAR & ANR." III(2009) CPJ 379 (NC) that the Consumer Protection Act, 1986 being a special act having additional/extended jurisdiction, the provisions of Seeds Act, 1966 do not take away the remedy made available to the consumers under Section 3 of the Act. Similar view was taken by the Hon'ble National Commission in the judgment reported as "National Seeds Corpn. Ltd. v. P.V. Krishan Reddy and others" 2009 CTJ 522 (CP) (NCDRC) in which it was held by the Hon'ble National Commission that the existence of an arbitration clause does not bar the jurisdiction of the Consumer Fora under the Act.
18. Hon'ble National Commission in another judgment reported as "HARYANA URBAN DEVELOPMENT AUTHORITY v. DR. MAYA VAID"
II(2009) CPJ 348 (NC) was pleased to hold that where the appeal was dismissed by the Administrator HUDA, it was not necessary for the consumer to challenge the said order in the Hon'ble High Court by filing writ petition. The consumer could still resort to the remedy made available under Section 3 of the Act. First Appeal No.1572 of 2003. 9
19. In view of the discussion held above and the overwhelming thrust of the law laid down by the Hon'ble Supreme Court placed on the provision of Section 3 of the Act, it is held that the remedy available under Section 3 of the Act can be availed by the consumer on the allegations that services rendered by the respondents were defective or deficient and seek compensation.
20. The respondents have proved numerous documents by which the amount of Rs.10,22,648.56P was outstanding against the appellants as on 31.3.2002.
21. Although the appellants have tried to set up the fact that they had given the jewellery for the value of Rs.10,22,648.56P to the respondents on 27.3.2003 (Ex.R2) but it does not appear to be a valid piece of evidence. There is no attestation of any witness on this document nor it is written on a regular account book. It has been written on a separate sheet which appears to have been created later on.
22. Therefore the findings of the learned District Forum that the appellants are liable to make the payment of Rs.10,22,648.56P is upheld.
23. However the learned District Forum has awarded interest at the rate of 18% per annum. This interest appears to be highly on the excessive side.
24. The appellants have filed this appeal through Shri Sanjeev Beri while the respondents are represented by Anil Beri. Both the parties appear to be real brothers. As the appellants have taken the plea in the written statement that the transactions were in the hands of Devi Dass father of the parties, therefore, the grant of interest is reduced to 6% per annum.
25. Accordingly this appeal is accepted partly and the impugned order dated 7.10.2003 is modified to the extent that the rate of interest is reduced to 6% per annum.
26. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondents by way of a crossed cheque/demand draft after the expiry of 45 days under intimation First Appeal No.1572 of 2003. 10 to the learned District Forum and to the appellants. This amount of Rs.25,000/- is adjusted against the principal amount and the interest on this amount of Rs.25,000/- shall stop running from the date of deposit of this amount i.e. on 25.11.2003.
27. Remaining amount shall be paid by the appellants to the respondents within a period of two months after the receipt of a copy of this order failing which remaining amount shall be paid by the appellants to the respondents with interest at the rate of 7.5% per annum with effect from today till the date of payment.
28. The arguments were heard in this case on 6.11.2009 and the order was reserved. Now, the order be communicated to the parties.
29. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(LT. COL. DARSHAN SINGH [RETD.])
MEMBER
November 19 , 2009 (PIARE LAL GARG)
Bansal MEMBER