State Consumer Disputes Redressal Commission
Malwa Financers (Regd.) vs Pal Singh on 2 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1366 of 2005
Date of institution : 21.10.2005
Date of decision : 02.02.2011
Malwa Financers (Regd.), Dutt Road, Corner, GT Road, Moga, through its
partners.
1. Inder Jit Singh alias Bhola Singh s/o Rajinder Singh.
2. Lachman Singh s/o Saudagar Singh Sangha
Both residents of V.P.O. Dosanj, Distt. Moga.
...Appellants
Versus
Pal Singh s/o Gurdev Singh r/o village Gill, Distt. Moga.
...Respondent
First Appeal against the order dated
20.9.2005 passed by the District Consumer
Disputes Redressal Forum, Moga.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Shri Baldev Singh Sekhon, Member Present:-
For the appellants : Sh.N.S.Dhandiwal, Advocate.
For the respondent : None.
MRS.AMARPREET SHARMA, MEMBER This appeal has been filed by the appellants against the order dated 20.9.2005 passed by the learned District Consumer Disputes Redressal Forum, Moga (in short "District Forum"), wherein the complaint of respondent was allowed.
2. Brief facts of the case are that the appellants were running a finance company under the name and style of Malwa Finance Company as well as Malwa Finance & Investment Company. The respondent opened his account with the appellants and made an initial deposit of Rs.50,000/- on 19.11.1997. The appellants agreed to repay this amount to the respondent with interest at the rate of 18% p.a. The appellants, thus, issued a passbook with account No.132 to the respondent after duly First Appeal No.1366 of 2005 2 signing the same. The respondent had been depositing and withdrawing the amount from the account from time to time and necessary entries to that effect were made in his pass book. On 26.11.2003, an amount of Rs.77,775/- remained payable to the respondent. The respondent approached the appellants for the receipt of payment, but the appellants put off the matter on one pretext or the other. Hence the respondent filed a complaint dated 9.11.2004 before the District Forum but the same was withdrawn on 15.4.2005 with the permission to file afresh on the same cause of action. Consequently the present complaint was filed seeking direction to the appellants to make the payment of Rs.77,775/- along with due interest till date. Compensation and costs were also prayed.
3. Upon notice, the appellants filed separate but similar reply taking preliminary objections that the complaint was time barred; that the Forum had no jurisdiction to try and entertain the complaint and that the complaint was barred by principle of resjudicata. On merits, it was denied if the appellants had been running finance company in the name of Malwa Financers or if they were partners in it. It was also denied if the appellants had taken any amount from the respondent, or issued any passbook to him or made any entry in it. It was denied if there was any deficiency on their part. Dismissal of the complaint was prayed.
4. Parties adduced evidence in support of their versions.
5. After considering the pleadings of the parties and going through the documents on record, the learned District Forum vide impugned order dated 20.9.2005 accepted the complaint of the respondent and directed the appellants jointly and severally to pay the balance amount of Rs.77,775/- with interest at the rate of 9% per annum from the date of last entry dated 26.11.2003 till payment. The respondent was also awarded costs to the tune of Rs.3000/-.
6. Aggrieved by the said order, the appellants have come up in the appeal.
First Appeal No.1366 of 2005 3
7. We have heard the learned counsel for the appellants and gone through the impugned order in detail as well as evidence brought on record.
8. Learned counsel for the appellants has submitted his arguments based on the grounds urged in the memorandum of the present appeal. He submitted that since the present complaint involved disputed questions of facts and allegations of fraud and forgery, the matter was of a civil nature and as such the forum below had gone beyond its jurisdiction in deciding the same. He further submitted that since the appellants had alleged the signatures on the passbook to be forged and fabricated, the forum below ought to have referred the relevant documents to the handwriting expert, rather than comparing the signatures itself with a naked eye. Thus, counsel for the appellants prayed for setting aside the impugned order passed by the forum below.
9. A question about the competence and jurisdiction of Consumer forum to entertain and deal with complaints involving disputed questions of facts and law and allegations of fraud, forgery, cheating and conspiracy etc. has been considered by the Apex Court and Hon'ble National Commission in a number of cases and these Courts have been consistently holding that merely because a complaint involves disputed / complicated questions of facts and law and allegations of fraud and forgery, it does not oust the jurisdiction of the Consumer Forum in entertaining and deciding the complaint.
10. In this context, reference can be made to the judgment of the Hon'ble Supreme Court titled as CCI Chambers Co-op Housing Society Ltd Vs. Development Credit Bank Ltd., 2004(1) CPC 1 (SC) wherein the Supreme Court has held that the decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, First Appeal No.1366 of 2005 4 are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It was further observed that the fora under the Act at every level are headed by experienced persons.
11. Reference can also be made to the judgment titled as Sutlej Textile and Industries Ltd. Vs. Punjab National Bank, 2009(3) CPC, 565 in which the Hon'ble National Commission has held as under:-
"The question of jurisdiction of consumer Fora to entertain the complaints claiming damages / compensation alleging deficiency in services on the part of the opposite parties like banks, insurance companies etc., even where certain allegations of fraud, cheating and forgery cropped up before this Commission, the views of this Commission, it appears have not been consistent and crystallized so far. Needless to mention, this Commission and other consumer forums like State Commissions and District Forums have been entertaining complaints against banks on the allegations that the latter have committed deficiency in service by encashing forged cheques and making payment of such of cheque, not containing the signature of the account holder or the cheque book having been issued by the bank on the basis of unauthorised requisition slips. In several cases, the allegation was that this was done with the connivance of the staff member of the bank and / or the account holder. In some cases, criminal complaints were also lodged with the police, which registered cases and took up the investigation. In such cases, despite there being the allegations of fraud, forgery, cheating or conspiracy, the consumer Fora were not dissuaded from entertaining the complaints and did not relegate the complainants to the civil court merely because First Appeal No.1366 of 2005 5 allegations of fraud, forgery and cheating were made in the transaction. The complaints were entertained and examined primarily to find out whether there was any deficiency on the part of the bank(s) and its/ their official (s) in not exercising due care in encashing the forged cheques. Many of such complaints have been allowed and appropriate relief granted to the complainant."
12. It has further been held by the Hon'ble National Commission in the judgment cited above as under:-
"The question as to whether a consumer forum should entertain a complaint where certain complicated question of facts and law are involved and is dependent upon the reading of voluminous oral and documentary evidence has been considered by the Supreme Court and it has been held that this should not be a ground for throwing away the complaint because the consumer forums at the District level are headed by persons who have been District Judges, at the State Commission by High Court Judges and at the National Level by Supreme Court Judge / High Court Judges having vast experience at their command in adjudication of cases involving much more complicated question of facts and law."
13. So far as the argument of the counsel for the appellants with regard to the reference of the matter to the handwriting expert is concerned, the law has already been settled by the Hon'ble Supreme Court in the case titled as Dr.J.J.Merchant & Ors. Vs. Shrinath Chaturvedi, 2002 (6) SCC, 635 that it has to be left to the discretion of the Commission to examine experts if required in an appropriate manner.
14. Similar view was taken by the Hon'ble Supreme Court in the case titled as V.Kishan Rao Vs. Nikhil Super Speciality Hospital, 2010(3) First Appeal No.1366 of 2005 6 CPR 101(SC), wherein the Hon'ble Supreme Court was pleased to observe as under:-
"In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts."
15. The Hon'ble Supreme Court was also pleaded to further hold in para 54 of the judgment cited supra as under:-
"This Court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence."
16. In the instant case, the District Forum examined the alleged forged passbook (Ex.A2) with the signature of Inderjit Singh appellant No.1 appearing thereon and compared them with his admitted signatures on the copy of reply filed by him in the Civil Suit titled as Joginder Singh Vs. First Appeal No.1366 of 2005 7 Chamkaur Singh and others (Ex.A4). Since the similarity in the signature on both the documents was evident on the face of records, there was no necessity of seeking opinion of the handwriting expert. Moreover, the appellants had not moved any application for any such purpose before the District Forum.
17. Keeping in view the principles laid down in the above mentioned cases and the fact that the complaint is based primarily on deficiency in service on the part of the appellants in denying their liability to repay the credit obtained from the respondent after duly issuing him a passbook falls well within the domain of the consumer forum. Therefore, simply because the appellants have denied the receipt of the amount and have alleged the passbook or the signatures thereon to be forged and fabricated does not come in the way of the District Forum in deciding the complaint.
18. The respondent has discharged his liability of proving the deficiency in service on the part of the appellants by producing on record his own affidavit Ex.A1, copy of passbook bearing signatures of Sh.Inderjit Singh appellant No.1, copy of reply filed and duly signed by Inderjit Singh in the Civil Suit titled as Joginder Singh Vs. Chamkaur Singh and others Ex.A4, copy of compromise made by both the appellants with one Kisan Union qua the SB account of one Gurmukh Singh son of Prem Singh on the letter pad of Malwa Finance and Investment Co.(Regd) Ex.A5. All these documents seen together clearly go to prove the fact the both the appellants have been the partners of the appellant firm, received the initial credit of Rs.50,000/- from the respondent on 19.11.1997, issued the passbook under the signatures of appellant No.1 made deposit and withdrawal entries in the passbook through their officials and struck the balance of Rs.77,775/- payable to the respondent on 26.11.2003. Though the appellants have denied all these facts, yet they have not led an iota of evidence to rebut the evidence of the respondent. As such the appellants First Appeal No.1366 of 2005 8 have failed repel the allegation of rendering deficient in services levelled against them.
19. In view of the aforesaid discussion, we find no infirmity in the order passed by the District Forum and accordingly we affirm the same. Resultantly this appeal is dismissed as being devoid of merits. No costs.
20. The appellants had deposited Rs.25,000/- at the time of filing of appeal in this Commission on 21.10.2005. The appellants had also deposited Rs.66,000/- on 9.12.2005 in this Commission in compliance with order dated 9.11.2005. Both these amount along with interest, if any, be paid to the respondent by way of crossed cheque / bank draft after expiry of period of 45 days. Remaining amount, if any, shall be paid by the appellants to the respondent on receipt of copy of this order.
21. The interest on the amount of Rs.25,000/- & Rs.66,000/- shall stop running with effect from the date the appellants had deposited the same in this Commission. Interest on these amount shall be what has accrued on this amount when it remained deposited by this Commission in the bank.
22. The arguments in this case were heard on 18.1.2011 and the order was reserved. Now parties be communicated about the same.
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Justice S.N.Aggarwal) President (Mrs.Amarpeet Sharma) Member (Baldev Singh Sekhon) Member February 02, 2011.
Davinder