State Consumer Disputes Redressal Commission
Bhagwan Laxman Saste, vs Dayanand Marutirao Birajdar, on 1 December, 2009
Date of filing:25.08.2005 Date of order:01.12.2009 MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD . F.A. NO.: 1499 OF 2005 IN COMPLAINT CASE NO. : 124 OF 2005 DISTRICT FORUM : OSMANABAD. 1. Bhagwan Laxman Saste, Prop.Ajinkya Traders, Yedshi. 2. Sow.Dhanashri Mukund Saste, Prop.Dhanashri Enterprises, Yedshi, Both R/o Yedshi, Tq. & Dist.Osmanabad. APPELLANTS (Org.Complainants) VERSUS 1. Dayanand Marutirao Birajdar, R/o Samarth Nagar, Osmanabad. 2. Income Tax Officer, Income Tax Office, Latur. RESPONDENT (Org.Opponents) Coram : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Shri.A.D.Maindarkar for appellants, Respondent No.1 in person.
O R A L O R D E R Per Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
1. The present appeal is filed by original complainants against the judgment and order dated 25.07.2005 in complaint case No. 124/05 passed by District Forum, Osmanabad.
2. Appellants/Org.Complainants`s case before the Forum is that, on 25.10.1996 they had paid Rs.1,00,000/- by cheque to the respondents for assessment of tax and depositing the tax for the year 1995-96 and 1996-97. It is contended that respondent did not deposit the tax in question. It is contended that complainants were required to deposit the tax with the penalty and complainants deposited the same in the year 2000 as the same was not deposited by respondent. It is contended that respondent obtained amount of Rs.20,000/- on 27.2.2001. It is contended that as the complainants came to know that though the amount was paid to the respondent No.1 he failed to assess the tax and deposit the same. Thus notice was issued on 29.12.2003. The same was served on respondent on 31.12.2003. But no cognizance was taken by respondent. Thus complainant approached the Forum.
3. It is contended that prior to this complaint, complainants had approached the Forum by filing complaint No.11/2004 for the deficiency on the part of respondent i.e. for not assessing the tax and depositing the same. The said complaint was dismissed by Forum on the ground of limitation by judgment and order dated 11.11.2004. Thus complainant again approached the Forum.
4. The Forum below after going through the papers and hearing the complainant dismissed the complaint holding that earlier complaint on the same cause of action had been dismissed by Forum thus complaint is barred by resjudicata.
5. Being aggrieved by the said judgment and order passed by the District Forum,Osmanabad, original complainants came in appeal.
6. Notices were issued to the appellants as well as respondents. Learned counsel Shri.A.V.Maindarkar appeared on behalf of appellants and respondent No.1 appeared in person. We heard both sides. Learned counsel for the appellants submitted that while filing earlier complaint notice was not given and Income Tax Department was not added party to the complaint. He submitted that it can not be said that subsequent complaint is on the same cause of action. Learned counsel tried to rely on New India Assurance Co.Ltd. Vs- R.Srinivasan reported in I(2000) CPJ 19(NC) and Smt.Rama Bangia & Anr.-Vs- Pushpa Builders Ltd. & Ors reported in II(2001) CPJ 256.
7. On the other hand, respondent No.1 fully supported the judgment and order passed by the Forum. He also relied on Jeewan Mittal Vs- M/s Hoffland Agro reported in I(2003) CPJ 112.
8. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. Present complaint has been filed by appellants for refund of Rs.1,00,000/- and Rs.20,000/- which respondent No.1 had accepted from present appellants. Earlier complaint was also for refund of Rs.1,00,000/- with interest and Rs.40,000/- towards compensation. We perused both the complaints and documents on record carefully. On perusal of papers, it reveals that, cause of action for the appellant in the earlier complaint was the same for which subsequent complaint has been filed. Earlier complaint has been dismissed by Forum on the ground of limitation. Finding of the Forum in earlier judgment has not been challenged by complainant in the appeal. It appears that appellant approached the Forum by filing subsequent complaint on same cause of action. Second complaint on same cause of action is not maintainable. Forum below has considered all these aspects rightly. The ratio cited by appellant`s counsel is not helpful as the fact in the said case differ from this case. In the instant case earlier complaint has been dismissed on the point of limitation and second complaint was filed by appellant is dismissed on the ground of maintainability. In the circumstances of the case, we are not inclined to interfere the order passed by the Forum. We pass the following order.
O R D E R
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the order be sent to both the parties.
Sd/- Sd/-
Mrs.Uma S.Bora S.G.Deshmukh, Member Presiding Judicial Member Mane