State Consumer Disputes Redressal Commission
Sharman Traders, Cotton Merchants And ... vs Gamdoor Singh on 9 June, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.727 of 2006
Date of institution : 24.5.2006
Date of decision : 09.6.2011
1. SHARMAN TRADERS, COTTON MERCHANTS AND COMMISSION
AGENTS, ABOHAR, DISTRICT FEROZEPUR THROUGH ITS SOLE
PROPRIETOR RAMESH KUMAR JAIN S/O BAJRANG DASS, R/O
CIRCULAR ROAD, ABOHAR, DISTRICT FEROZEPUR.
2. RAMESH KUMAR JAIN S/O BAJRANG DASS, R/O CIRCULAR
ROAD, ABOHAR, DISTRICT FEROZEPUR.
....APPELLANTS
Versus
1. GAMDOOR SINGH S/O UJAGAR SINGH,
2. GURPREET KAUR WIFE OF GAMDOOR SINGH,
3. KARTAR KAUR W/O UJAGAR SINGH,
4. BALWINDER SINGH S/O UJAGAR SINGH,
5. RAJINDER KAUR W/O BALWINDER SINGH,
6. BALTEZ SINGH S/O BALWINDER SINGH,
RESPONDENT NO.1 TO 6 ALL ARE RESIDENTS OF VILLAGE &
POST OFFICE TARKHANWALA, TEHSIL AND DISTRICT
MUKTSAR.
.....RESPONDENTS
7. AMAN KUMAR S/O BHAGWAN DASS JAIN, R/O CIRCULAR ROAD,
LAKKAR MANDI, ABOHAR, DISTRICT FEROZEPUR.
......PROFORMA RESPONDENT.
First Appeal against the order dated 13.4.2006 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri Munish Goel, Advocate.
For respondents No.1 & 2 : Shri Ashok Aneja, Advocate.
For respondents No.2 to 6 : Need not be served vide order dated 2.8.2006.
For respondent No.7 : Shri A.K. Khunger, Advocate.
First Appeal No.727 of 2006. 2JUSTICE S.N. AGGARWAL, PRESIDENT:
Version of respondents No.1 to 6:
Respondents No.1 to 6 (in short "the respondents") constituted a joint Hindu Family. The only source of income of the respondents was agricultural land situated in village Tarkhanwala, Tehsil Malout, District Muktsar. The respondents used to sell their entire agriculture produce on the shop of Sharman Traders, Cotton Merchants and Commission Agents, appellant No.1 for the last so many years. Appellant No.1 used to charge the commission/Aharat. The agriculture produce was sold by the respondents jointly on the shop of appellant No.1. Therefore they have common cause of action.
2. It was further pleaded that the respondents used to take the amount of sale proceeds as per their needs. Moreover the appellants and respondent No.7 used to insist on the respondents to deposit the excess money with them on payment of interest at the rate of 1.5% per month with quarterly rests. The respondents felt allured and they used to deposit the excess money with the appellants and respondent No.7 on interest basis.
3. It was further pleaded that the firm appellant no.1 was a proprietorship firm. It was owned by Bhagwan Dass who died in the year 2003. Thereafter the business of appellant No.1 was being managed by Ramesh Kumar Jain appellant No.2 and Aman Kumar respondent No.7. Since the respondents were depositing the excess money with firm appellant no.1, Bhagwan Dass used to acknowledge the amount deposited/balance amount and used to pay interest after calculations at the rate of 1.5% per month. The interest was paid to the respondents vide receipts dated 14.7.1998, 23.6.1999, 23.6.2000, 23.8.2001, 1.4.2002 and 1.7.2002. Receipts were being issued by the respondents.
4. It was further pleaded that as per the receipt dated 1.7.2002 a sum of Rs.10,68,182/- was outstanding against the appellants and respondent No.7 as on 1.1.2003. After the death of Bhagwan Dass it was the duty of appellant no.2 and respondent No.7 to pay the amount outstanding against the firm appellant no.1 First Appeal No.727 of 2006. 3 along with interest accrued on this amount. However appellant No.2 and respondent No.7 expressed their inability to pay the interest amount on quarterly basis. The total amount outstanding against the appellants and respondent No.7 as on 31.1.2004 was Rs.12,76,468/-. However the appellants and respondent No.7 had made the payment of Rs.26,468/- towards the interest on 31.1.2004 and the remaining amount of Rs.12,50,000/- was still outstanding against the appellants and respondent No.7 as on 1.2.2004. Neither the appellants and respondent No.7 made this payment nor they paid the interest nor they acknowledged the outstanding amount. Hence the complaint for recovery of Rs.12,50,000/- with interest at the rate of 1.5% per month with effect from 1.2.2004. Costs and compensation were also prayed separately.
Version of the appellants
5. The appellants filed the written reply. It was admitted that respondents No.1 to 6 constituted a joint Hindu Family. They were agriculturists and they were residents of village Tarkhanwala, Tehsil Malout, District Muktsar. It was also admitted that these respondents used to sell their agriculture produce on the shop of appellant No.1.
6. It was, however, denied if the respondents were taking the amount of sale proceeds according to their needs or if the excess amount was being deposited by the respondents on the shop of appellant no.1. It was pleaded that the respondents used to take back the income of their agriculture produce on cash basis on different occasions. It was denied if the appellant firm or Bhagwan Dass or appellant no.2/respondent No.7 used to accept the sale proceeds from the respondents as deposits or if they had agreed to pay interest at the rate of 1.5% per month with quarterly rests. It was also denied if any allurement was given by the appellant and respondent No.7 to the respondents for seeking deposits from them.
7. It was also pleaded that no cause of action had arisen to the respondents to file the present complaint. It has been filed with mala fide intention and ulterior motive. The material facts have been concealed by the respondents. Appellant First Appeal No.727 of 2006. 4 No.2 and respondent No.7 have been impleaded without any basis. Appellant No.2 was the sole proprietor of the firm appellant No.1. The firm appellant No.1 had nothing to do with Bhagwan Dass nor he was the proprietor of the appellant firm. Neither Bhagwan Dass nor Aman Kumar respondent No.7 were ever impleaded in the firm appellant No.1 nor they were appointed to do anything on behalf of the firm nor sign or acknowledge any amount on behalf of the firm appellant no.1. It was also denied if appellant No.2 was the legal heir of Bhagwan Dass.
8. It was admitted that appellant No.2 was running the business of commission agents (Pucca Aharat) since 1989. It was not the business of the appellant firm or appellant no.2 to accept any deposits on payment of interest basis. The complaint was barred by time and the parties need be relegated to the civil court.
9. It was denied if the respondents had entered into any transaction with appellant No.2 for the deposit of any money by the respondents with the appellant firm. Bhagwan Dass was not authorized to carry out any work on behalf of the appellant firm nor the respondents had conducted any transaction with Bhagwan Dass before his death in the year 2003. Therefore the transactions alleged by the respondents had nothing to do with appellant No.2 or appellant No.1. It was denied if appellant No.2 was Class-I legal heir of Bhagwan Dass. It was also denied if after the death of Bhagwan Dass, appellant No.2 has shown his inability to pay the interest amount or if the interest amount was calculated by appellant No.2 or if an amount of Rs.12,76,468/- was outstanding against the appellants and respondent No.7 as on 31.1.2004.
10. It was also denied if the appellant firm or appellant no.2 had ever made the payment of Rs.26,468/- to the respondents on 31.1.2004 or if an amount of Rs.12,50,000/- was outstanding against the appellants as on 1.2.2004. This version of the respondents was totally false. The appellants had never assured the respondents for repayment of any loan or the interest amount or if any amount was First Appeal No.727 of 2006. 5 payable by the appellants to the respondents. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed.
11. Aman Kumar Respondent No.7 has also filed written reply. He also took almost similar pleadings as by the appellants. Denying all the averments made in the complaint he prayed for dismissal of the complaint. Proceedings before the District Forum
12. Gamdoor Singh respondent filed his affidavit dated 30.3.2006. The respondents also proved documents Annexure-I and Annexure C-1 to Annexure C6. Gamdoor Singh respondent also filed his affidavit as Annexure C-7, Gurpreet Kaur respondent filed her affidavit as Annexure C-8, Kartar Kaur respondent filed her affidavit as Annexure C-9, Balwinder Singh respondent filed his affidavit as Annexure C-10, Rajinder Kaur respondent filed her affidavit as Annexure C-11 and Baltej Singh respondent also filed his affidavit as Annexure C-12.
13. On the other hand, the appellants filed the affidavit of Ramesh Jain appellant No.2 dated 14.2.2006. They also filed some documents.
14. Learned District Forum accepted the complaint with costs of Rs.5,000/- vide impugned judgment dated 13.4.2006 and directed the appellants to make the payment of Rs.10,68,182/- with interest at the rate of 9% per annum with effect from 1.1.2003 till realization.
15. Hence the appeal.
Discussion :
16. The submission of the learned counsel for the appellants was that appellant No.2 was still the proprietor of the firm appellant No.1. No amount was accepted by appellant no.2 from the respondents nor Bhagwan Dass had any authority to run the business of firm appellant No.1. Hence it was prayed that the appeal be accepted and the impugned judgment dated 13.4.2006 be set aside. First Appeal No.727 of 2006. 6
17. On the other hand, the submission of the learned counsel for respondents No.1 and 2 was that there was no merit in the present appeal and the same be dismissed.
18. The submission of respondent No.7 was also that the appeal be accepted and the impugned judgment dated 13.4.2006 be set aside.
19. Record has been perused. Submissions have been considered.
20. The respondents have not been able to show how they are consumers of the appellants or respondent No.7? The word 'consumer' has been defined in Section 2(1)(d) of the Consumer Protection Act, 1986 as a person who buys any goods for a consideration or who hires or avails of any service for a consideration.
21. If the version of the respondents had been that they had been selling their agriculture produce on the shop of the appellants and they were not being paid the sale proceeds of that agriculture crop, it could have been said that the respondents had hired the services of the appellants for selling their crop and, therefore, they were the consumers of the appellants.
22. However, in the present case, the version of the respondents was that they had been depositing the money with the appellants on interest basis and the interest was being paid to them by the appellants or by Bhagwan Dass when he was alive and the writings were also made on the letter pad of appellant No.1 by Bhagwan Dass who has now died in the year 2003. The writing was made by Aman Kumar respondent No.7.
23. Therefore, through this complaint the respondents seek the refund of outstanding amount from the appellants and respondent No.7 on the basis of writing dated 1.7.2002. It is, therefore, simply a case of recovery on the basis of the writing dated 1.7.2002 Annexure C-6. Therefore the respondents are not the consumers of the appellants and respondent No.7.
24. Otherwise also the complaint is not within limitation. It was filed on 27.12.2005 for recovery of the amount on the basis of the writing dated 1.7.2002 Annexure C-6. As per the version of the respondents, a sum of Rs.10,68,182/- First Appeal No.727 of 2006. 7 was outstanding against the appellants and respondent No.7 as on 1.1.2003. The respondents were also entitled to interest at the rate of 1.5% per month on quarterly rest basis. It means, therefore, that after calculating the interest at the rate of 1.5% per month for three months either the amount of interest was to be added in the principal amount and a fresh writing was to be executed by the appellants and respondent No.7 in favour of the respondents on 1.10.2002 or the interest component was to be paid by the appellants/respondent No.7 to the respondents in the first week of October 2002. Since none of these things was done, therefore, the cause of action had arisen to the respondents against the appellants and respondent No.7 on 1.10.2002 or a few days thereafter.
25. Section 24-A of the Consumer Protection Act deals with limitation. It reads as under:-
"24A. Limitation period. - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-
section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay." First Appeal No.727 of 2006. 8
26. The provisions of Section 24A of the Consumer Protection Act were interpreted by the Hon'ble Supreme in the judgement reported as "State Bank of India v. B.S. Agricultural Industries (I)" 2009 CTJ 481 (Supreme Court) (CP) and the Hon'ble Supreme Court was pleased to observe as under:-
"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."First Appeal No.727 of 2006. 9
27. This view of law was reiterated by the Hon'ble Supreme Court in its latest judgment reported as "V.N. Shrikhande (Dr.) v. Anita Sena Fernandes" 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Hon'ble Supreme Court as under:-
"Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v.
B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768."
28. As per the provisions of Section 24A of the Consumer Protection Act, 1986, reproduced above and the law discussed above, a complaint could be filed First Appeal No.727 of 2006. 10 by a consumer within a period of two years after the cause of action had accrued to him.
29. The respondents have taken a plea in para 6 of the complaint that since the appellants and respondent No.7 had made the payment of Rs.26,468/- out of the interest amount to the respondents on 31.1.2004, therefore, cause of action had arisen to the respondents against the appellants and respondent No.7 on 31.1.2004. It was also pleaded in para 8 of the complaint that cause of action had arisen to the respondents to file the present complaint against the appellants and respondent No.7 on the issuance of each and every receipt and it further arose on 31.1.2004 when the part payment was made by the appellants and respondent No.7 to the respondents. If these pleadings had been correct then the cause of action would have arisen to the respondents on 31.1.2004.
30. However the appellants in the written reply filed by them have specifically denied if any payment of Rs.26,468/- was made by them out of the interest amount to the respondents on 31.1.2004. It was also denied if the cause of action had arisen to the respondents on 31.1.2004. The respondents have not produced any evidence on the file of the District Forum to prove if the payment of Rs.26,468/- was made by the appellants and respondent No.7 to the respondents on 31.1.2004.
31. Since the proceedings before the consumer fora under the Consumer Protection Act, 1986 are summary in nature, therefore, the respondents could not lead any evidence oral or documentary to prove this assertion except their own affidavits. The affidavits cannot take the place of proof unless those affidavits were supported by the documents. Therefore it cannot be held in these proceedings if any payment of Rs.26,468/- was made by the appellants to the respondents on 31.1.2004.
32. Once it is ruled out in these summary proceedings, therefore, the cause of action had arisen to the respondents on 1.7.2002 (Annexure C-6) on the basis of which the respondents have based their claim. Considering from that date the complaint having been filed on 27.12.2005 was barred by limitation. First Appeal No.727 of 2006. 11
33. Keeping in view the discussion held above, it is held that neither the respondents were the consumers qua the appellants and respondent No.7 nor the complaint was within limitation.
34. Since complicated and complex questions of facts and law are involved in the present complaint which need voluminous evidence oral, documentary and expert evidence, therefore, the parties are relegated to the civil court in view of the law laid down by the Hon'ble Supreme Court in the judgment reported as "Punj Lloyd Limited v. Corporate Risks India Pvt. Ltd." 2009 CTJ 1 (Supreme Court) (CP).
35. Accordingly this complaint is dismissed as not maintainable and the parties are relegated to the civil court.
36. The time spent by the respondents from the date of filing of complaint in the learned District Forum on 27.12.2005 till today would not be counted towards limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656.
37. 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 refunded to the appellants by the registry by way of a crossed cheque/demand draft after the expiry of 45 days.
38. The arguments in this case were heard on 6.6.2011 and the order was reserved. Now, the order be communicated to the parties.
39. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
June 09 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.727 of 2006. 12