State Consumer Disputes Redressal Commission
Chetan Chopra vs Bhupinder Singh on 1 September, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 38 of 2014
Date of institution: 13.01.2014
Date of decision : 01.09.2015
Chetan Chopra son of Davinder Nath Chopra resident of N.D. 129,
Bikrampura, Near Mai Hiran Gate, Jalandhar.
.....Appellant/opposite party
Versus
Bhupinder Singh son of Sh. Joginder Singh, resident of 151-L, Gujre Pal
Nagar, Jalandhar.
..Respondent/complainant
First Appeal against the order dated 03.12.2013
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Karan Nehra, Advocate
For the respondent : Sh. Puneet Tulli, Advocate
GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) Order This appeal has been preferred by appellant/OP (hereinafter referred as 'OP') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 03.12.2013 in C.C. No. 275 of 02.07.2013 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short the 'District Forum') vide which the complaint filed by the complainant was accepted with the First Appeal No. 38 of 2014 2 directions to OP to pay Rs. 10,00,000/- to the complainant alongwith interest 9% per annum from the date of filing the appeal till its payment and also to pay Rs. 50,000/- in lump sum on account of compensation and litigation expenses.
2. A consumer complaint was filed by the complainant against the respondent/complainant (hereinafter referred as 'complainant') that OP was doing the business of travel agent. The complainant approached OP to send his son Parminder Singh abroad for employment/settlement. The OP assured to send him to Canada and said that its cost will be approximately Rs. 13 lacs out of which a sum of Rs. 2 lac was given in advance on 12.08.2011 (Rs. 1,60,000/- vide cheque No. 197295 dated 12.08.2011 and Rs. 40,000/- in cash). Then OP supplied a photocopy of invitation letter on the basis of which a sum of Rs. 11 lac was demanded which was given through different cheques which were encashed by OP. However, OP had failed to send his son abroad and started putting off the matter with one excuse or the other. Finding the OP deficient in services, the complainant moved the complaint before the Commissioner of Police, Jalandhar vide complaint No. 3808 PTM dated 14.10.2011 in which there was a compromise on 05.01.2012 vide which the OP had paid three cheques which were as under:-
(A) Cheque no. 059435 dated 09.01.12 for Rs. 3,00,000/-. (B) Cheque no. 059436 dated 22.07.12 for Rs. 3,50,000/- (C) Cheque no. 059437 dated 22.08.12 for Rs. 3,50,000/-.
Out of that cheque No. 059435 for Rs. 3 lac was honoured and other two cheques were dishonoured. Therefore, OP did not commit to that compromise. The act of the OP amounted to deficiency in services. Hence, First Appeal No. 38 of 2014 3 the complaint with the directions to OP to pay Rs. 10 lac and Rs. 3 lac as compensation and litigation expenses.
3. The complaint was contested by the OP stating that the complaint was not maintainable as OP was not running the business of travel agency and was running a business of computer data processing since long. However it was admitted that the complainant had approached OP and the complainant had told the OP that his son had returned from USA after living 15-16 years and now he has arranged passport, but the said passport was fabricated one. The son of the complainant applied for tourist visa to Canada in the month of July 2011 which was rejected and then the complainant approached the OP with a proposal for a joint business venture investment at Georgia and showed his bank balance. The son of the complainant and OPs, approached M/s Crown Immigration Consultancy Services Pvt. Ltd., Jalandhar and application was sent to the Director Internal Affairs of Georgia. On 01.09.2011, Crown Immigration Consultancy Services received a permission letter from Mr. K. Oniani, Police vice Colonel, Department of Patrol Police, Georgia which was invitation letter to go that country. OP had received the following cheques:-
1. Cheque No. 197295 dated 12.08.2011 Rs. 1,60,000.00
2. Cheque No. 197297 dated 08.09.2011 Rs. 65,000.00
3. Cheque No. 361511 dated 08.09.2011 Rs. 1,50,000.00
4. Cheque No. 213284 dated 08.09.2011 Rs. 50,000.00
5. Cheque No. 197296 dated 08.09.2011 Rs.7,50,000.00 Total: Rs. 11,75,000.00 The remaining amount was received in cash. The complainant had filed the complaint dated 14.10.2011 with Commissioner of Police. OP had also filed First Appeal No. 38 of 2014 4 a complaint bearing No. 4692 PTM dated 24.12.2011 with Commissioner of Police, Jalandhar. On 05.01.2012 a compromise deed was executed between the complainant and OP under which OP was to pay Rs. 10 lac and cheques referred above in the complaint were issued, out of which one cheque of Rs. 3 lac was encashed and two cheques were dishonoured, therefore, a sum of Rs. 7 lac was payable by OP. Two complaints under section 138 of the Negotiable Instruments Act are pending before the Court of Sh. Amit Kumar Garg, Judicial Magistrate, Ist Class, Jalandhar. There was no deficiency in services on the part of the OP. It was submitted that the complaint was without merit and it be dismissed.
4. Parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. CA, photocopy of cheque No. 197295 dated 12.08.2011, receipt dated 12.08.2011 Ex. C-2, letter dated 19.08.2011 Ex. C-3, application dated 19.08.2011 Ex. C-4, letter dated 01.09.2011 Ex. C-5, copies of cheques dated 08.09.2011 Ex. C-6 to Ex. C-9, affidavit of Chetan Chopra Ex. C-10, complaint dated 14.10.2011 to Commissioner of Police Ex. C-11, cheques dated 09.01.2012, 22.07.2012 and 22.08.2012 Ex. C-12 to Ex. C-14, compromise deed dated 05.01.2012 Ex. C-15, letter dated 12.08.2011 Ex. C-16 and closed the evidence. On the other hand, OP tendered into evidence affidavit of Chetan Chopra Ex. OP/A, letter dated 02.08.2013 Ex. O-1, complaint to Commissioner of Police Ex.
O-2, statement of Bhupinder Singh Ex. O-3 and O-4, report dated 10.01.2012 Ex. O-5, report dated 16.01.2012 Ex. O-6, passport of son of the complainant Ex. O-7, letter dated 02.08.2011 Ex. O-8, letter dated 10.08.2011 Ex. O-9 & Ex O-10, Letter dated 09.09.2011 Ex. O-11 and Ex. O-12, letter dated 19.08.2011 Ex. O-13, letter dated 19.08.2011 Ex. O-14 First Appeal No. 38 of 2014 5 and Ex. O-15, letter dated 01.09.2011 Ex. O-16, letter dated 19.08.2011 Ex. O-17, letter dated 19.08.2011 Ex. O-18, letter dated 01.09.2011 Ex. O-19 and Ex. O-20, letter dated 19.08.2011 Ex. O-21, letter dated 19.08.2011 Ex. O-22, letter dated 01.09.2011 Ex. O-23, letter dated 01.09.2011 Ex. O-24, letter dated 24.12.2011 Ex. O-25, compromise deed dated 05.01.2012 Ex. O- 26 and closed the evidence.
5. After going through the allegations as alleged in the complaint, written reply filed by OP, evidence and documents on the record, the learned District Forum accepted the complaint as referred above after observing that the OP had claimed that he runs a business of travel agency and received Rs. 13 lac from the complainant. A sum of Rs. 11,75,000/- through cheque and the remaining amount by way of cash through receipt. He failed to send the son of the complainant to abroad. A complaint to the policy was lodged under which there was a compromise but OP did not stick to the compromise, therefore, compromise cannot be accepted.
6. Aggrieved with the order, OP/appellant has filed this appeal.
7. We have heard the learned counsel for the parties and have perused the record.
8. In the appeal, counsel for the appellant has first contended that the complainant does not come within the definition of 'consumer', there was no consumer dispute and the payment, if any, made by the complainant was made for joint business venture investment which is a commercial activity and does not come within the domain of CP Act. In case, we go through the receipt Ex. C-2 given by OP after receiving a cheque of Rs. 1,60,000/- and Rs. 40,000/- in cash, that amount has been received for sending Parminder Singh Multani to Canada via Georgia and the receipt is duly signed by OP. First Appeal No. 38 of 2014 6 In case, the OP had received Rs. 2 lac out of the committed amount of Rs. 13 lac then that amount was certainly paid by the complainant to send his son abroad through OP. OP may not have any registered licence as travel agent but there is no dearth at least in the State of Punjab where number of travel agent worked illegally without obtaining the licence and OP cannot regal out of this writing for what purpose the amount was taken from the complainant. Although later on he must have taken the assistance of M/s Crown Immigration Consultancy Services Pvt. Ltd., Jalandhar. No doubt OP had also applied for business visa but there is no agreement between the parties that there will be joint business venture between them in Georgia, therefore, we do not agree with the plea raised by counsel for the OP that the payment, if any, was given to the OP, on account of joint business venture and not for sending the son of the complainant to Canada through Georgia. In view of these circumstances, the complainant is a consumer and OP is a service provider and in case after receiving the money, the OP had failed to send the son of the complainant to abroad, certainly, there was deficiency in services and it is a consumer dispute.
9. It is further argued by the counsel for the appellant that even if for the sake of arguments, it is taken that it was a consumer dispute between the parties, the matter was settled and there was a compromise deed between the parties Ex. C-10 under which the OP had agreed to pay Rs. 10 lac and cheque of Rs. 3 lac has already been cleared. There is balance of Rs. 7 lac which is payable whereas learned District Forum has ordered the OP to pay Rs. 10 lac. On the record, the complainant had paid Rs. 13 lacs. Rs. 11,75,000/- on the basis on cheques and Ex. C-2 is the receipt regarding payment of Rs. 40,000/- in cash. Then there is an agreement Ex. C-10 under First Appeal No. 38 of 2014 7 which he has admitted to have taken Rs. 13 lacs from the complainant, therefore, total payment made by the complainant to OP as per the admission made by the OP in Ex. C-10 i.e. compromise between the parties is 13 lac. No doubt, there was a compromise under which one cheque of Rs. 3 lac issued by the OP in favour of the complainant was cleared but that two remaining cheques had bounced and were dishonoured which show that the complainant did not stick to his compromise. Therefore, now we cannot say that the consumer Forum should act upon the compromise to which they themselves were the defaulter. The District Forum has also observed that OP was defaulter to the compromise and ordered to pay the amount which was actually received by the OP from the complainant.
10. Another point raised by counsel for the OP that in case two cheques have been dishonoured, two complaints under section 138 of Negotiable Instrument Act are pending with JMIC, Jalandhar, therefore, no order can be passed regarding refund the amount of those cheques. Otherwise, it will amount to double jeopardise. However, we do not agree with this plea. The criminal proceedings are different than the consumer proceedings. Under the criminal proceedings he will be convicted and sentence on account of his conduct for issuing the cheque which were later on dishonoured, whereas in the complaint under the CP Act, we are to adjudge whether there was any deficiency in services on the part of the OP and in case, it is affirmative, then compensation can be granted to the complainant under this Act. Therefore, the proceedings under the Negotiable Instrument Act and under the CP Act are on the different footing and will not amount double jeopardise as alleged by the counsel for the appellant.
First Appeal No. 38 of 2014 8
11. It is next argued that on the basis of the complaint FIR No. 85 dated 04.06.2014 was registered in Division No. 3 Jalandhar on account of cheating and criminal breach of trust and in case there is element of cheating then that matter cannot be decided in the summary procedure which required elaborate evidence, therefore, matter be referred to Civil Court. However, we do not agree with this plea of the counsel for the OP that in case, there is some element of cheating in the conduct of the OP, the criminal court will decide that matter. We have to see whether on the basis of the evidence we are able to decide this complaint in the summary proceedings. When the documents are cleared and there is admission on the part of the OP Ex. C-2 and Ex. C-10 that he had taken this amount from the complainant to send his son to Canada then there is no dispute with regard to the receipt of money and the purpose for which it was taken and certainly the son of the complainant was not sent abroad which amounted to deficiency in services. He also admitted that he owe this amount to the complainant and had agree to pay a sum of Rs. 10 lac out of which only one cheque is cleared and other two cheques of Rs. 3.50 lacs were dishonoured, therefore, again there was deficiency in service on the part of the OP that the cheques issued by him to settle the claim of the complainant were dishonoured. In case, the evidence of the parties is complete and on the basis of the documents on the record, the consumer fora can decide the matter then the matter cannot be referred to the Civil Court. Reference can be made by the Hon'ble National Commission in "Shiv Kumar Aggarwal Versus Arun Tandon and another", 2007 (2) CLT 287. In that case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora First Appeal No. 38 of 2014 9 repelled- Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have completed their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. Therefore, we do not agree with the plea of the OPs that matter in dispute cannot be decided before the Consumer Fora or that it should be relegated to the Civil Court.
A reference can be made to the judgment of the Hon'ble Supreme Court in the case of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002 (6) SCC 635 that:-
'the State Commission and District Forum are headed by retired High Court Judges and Officer of District Judge level and in our view, this not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion. If the evidence is complete then matter can be decided by the Consumer Fora.
12. No other point was argued.
13. In view of the above discussion, we are of the opinion that findings so recorded by the District Forum are correct passed upon the documentary evidence. We do not see any illegality in the findings and the same are hereby affirmed. We do not see any merit in the appeal and the same is hereby dismissed.
14. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. The amount of Rs. 25,000/-
with interest accrued thereon, if any, be remitted by the registry to First Appeal No. 38 of 2014 10 respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the date of sending the certified copies of the order to the parties subject to stay, if any, by the higher Fora/Court.
15. Remaining amount shall be paid by the appellant to respondent within 30 days from the receipt of the copy of the order.
16. The arguments in this appeal were heard on 18.08.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER September 1, 2015.
Rupinder