O R D E R
(By Sri P.Laxminarayana, M.A.LL.B.…President)
On 06.08.2011, this CC 35/2011 was filed by the Complainant under section 12 of Consumers Protection Act praying the Forum to pass a decree for Rs.1000/- along with interest @ 24% per annum from the date of transaction till the date of realization against respondents 1 and 2 and for costs and to direct respondents 1 and 2 to pay Rs.25,000/- on the ground that the complainant suffered mentally and physically.
2. The case of the complainant, in brief, is as follows:-
That the complainant is resident of Wajidnagar of Bichkunda mandal, Nizamabad district.
2.1. It is further alleged in the complaint that the office of respondent No.1 is situated at Subashnagar, Nizamabad and the office of respondent No.2 is situated at Hyderabad.
2.2. According to the complainant he had applied under Self-employment scheme to maintain a fertilizer shop in the name and style of M/s Yogeshwara Fertilizers at Wajidnagar and the same was granted in the year 1989 on furnishing security deposit Rs.1000/- and the said security deposit Rs.1000/- was deposited vide receipt No.83972 on 14.12.2009. Respondent No.1 issued a Principal certificate vide reference No.Rm/NZB/Agreement/90-91. According to the complainant the said security deposit Rs.1000/- was refundable with interest.
2.3. It is also the contention of the complainant that he had run the fertilizer shop till 1996 and wound it up and had been demanding for the refund of security deposit with interest.
2.4. It is further alleged in the complaint that the complainant has been approaching respondent Nos.1 and 2 for refund of security deposit Rs.1000/- but of no use. According to the complainant, respondents 1 and 2 do not bother to take necessary steps to refund the security deposit amount Rs.1000/-.
2.5. It is further alleged in this complaint that on 21.5.2010, the complainant wrote a letter regarding return of deposit money to the RM Nizamabad and the complainant was informed that respondents 1 and 2 will send a cheque but till date there is no refund of the deposit money.
2.6. It is further alleged in the complaint that the complainant has got issued the legal notice on 4.10.2010 calling upon the respondents to refund the security deposit with interest. Respondents 1 and 2 received the said notice dated 4.10.2010 and failed to send reply and the security deposit amount with interest has not been refunded yet.
2.6. The main contention of the complainant in the complaint is that the complainant is the consumer and respondents 1 and 2 are answerable to the acts done by them.
3. On 19.12.2011, respondent No.1 filed his counter denying the contents of the complaint. According to respondent No.1 the deposit mentioned in the complaint does not carry any interest.
3.1. The respondent No.1 stated in the counter that complaint is false and frivolous and in the legal notice the complainant stated that the business was closed in the year 1994 whereas the complainant mentioned in the complaint that the business was closed in 1996 and thus there is material inconsistency and the said material inconsistency establishes the falsity of the complaint.
3.2. It is further alleged in the counter of respondent No.1 that the complainant never approached respondents 1 and 2 and respondent No.1 never informed the complainant that he would send the cheque.
3.3. Respondent No.1 submitted that respondent No.1 gave correct reply dated 23.10.2010 which was received by the complainant under registered letter on 29.10.2010 and in the said reply it was stated that the said Agro Chemical Division was wounded up in the year 1996-97 and the relevant record was not available.
3.4. According to the respondent No.1, complainant never approached the present office at Nizamabad and the present office at Nizamabad was re-opened during October, 2008 along with other Regional office of the respondent Corporation. Respondent No.1 further stated that the complainant has intentionally suppressed the receipt of reply notice.
3.5. Respondent No.1 further stated that from the allegations of the complainant it is clear that the business of the complainant has wound up during the year 1994 and hence no record to show that since 1994 onwards till 4.10.2010 and to show any attempt was made to claim back the said deposit amount. Respondent No.1 never promised at any time for the refund of the said deposit and the said deposit is not available as per the audited amount of the branch.
3.6. Respondent No.1 stated that by the said reply notice it was made clear that the claim of the complainant is untenable. By the said reply notice it was made clear that the claim of the complainant is untenable at this distance of time. More so, without furnishing any record in proof of any dues to the agency through requisition along with original cash receipt issued by respondent No.2 in token of receipt of security deposit along with account copy, the claim of the complainant is not correct and it is barred by limitation.
3.7. Respondent No.1 stated that as per the procedure in vogue the complainant has to submit a requisition on the letter head of the dealer so as to examine the issue and return the security deposit amount. The complainant without following due procedure agitating for payment of security deposit amount Rs.1000/- along with interest and the same is not correct and tenable.
3.8. In the counter respondent No.1 further stated that as seen from the account of the office of respondent No.1 for the year 2009-10 no security deposit is outstanding against the complainant firm which reveals that no security deposit amount is due from respondent No.1.
3.9. Respondent No.1 further stated that there was no demand for refund of alleged security deposit amount and the complainant did not make any attempt for security deposit amount since 1994 to 2010 and as such there is no deficiency in service and claim for the interest is illegal. This complaint is not correct and the complainant is not a consumer and hence the complaint is not maintainable. The cause of action arose only in 1994 and thus the present complaint is barred by limitation and the complainant is not entitled for interest at 24% per annum and the complainant is not entitled for damages Rs.25,000/-. The said claim of the complainant is false and untenable and liable to be rejected with exemplary costs since the complainant has dragged the respondent No.1 to the forum illegally involving the public time and money and the complainant has suppressed the truth and the facts. In the year 1989 the office of respondent No.1 existed at Nizamabad and respondent No.1 agency was wound up in the year 1996-97 and the entire relevant record in respect of the said agency is not available on account of lapse of time. Office of respondent No.1 has come into existence in the year 2008 only and as such respondent No.1 is not in possession of the entire record. Respondent No.1 prayed the forum to dismiss the complaint with exemplary costs.
Respondent No.2 filed memo adopting the counter of respondent No.1.
4. The point that arises for consideration is whether the complainant is entitled for decree for Rs.1000/- with interest @ 24% per annum from the date of transaction and for compensation of Rs.25,000/-?
5. POINT:
On behalf of the complainant, the chief-affidavit of the complainant dated 3.1.2012 was filed and Ex.A1 to A7 were marked.
On behalf of respondent No.1 V.Gangadhar, Regional Manager of APSAIDC Limited, Nizamabad filed his chief-affidavit dated 14.6.2012.
From the evidence of PW1 and from the contents of Ex.A2, it is clear that A.P.State Agro Industries Development Corporation Limited office of the Regional manager (AC), Subashnagar, Nizamabad appointed the complainant as their dealer in Wajidnagar and he was requested to attend their office on any working day for collecting the principal certificate. The said principal certificate is not filed by the complainant. However, the complainant (Pw1) filed one receipt passed by the A.P.State Agro Industries Development Corporation Limited, AC Guards, Hyderabad vide Sl.No.83972 dated 14.12.1989 for Rs.1000/-and this is Ex.A3 and it is prior to Ex.A2 letter from the Regional Manager. Ex.A1 is receipt with regard to refund application form from M/s Sri Yogeshwara Fertilizers Wajidnagar on 12.8.1996. There is no stamp or seal of any officer on the said receipt and there is no mention in the said receipt to the effect that respondent No.2 or respondent No.1 assured the complainant that cheque for Rs.1000/- will be sent to the house of the complainant. From 12.8.1996 till 21.5.2010 the complainant kept quiet and slept over the matter and on 21.5.2010 the complainant addressed a letter to the Managing Director, APSAIDC, Head office, Hyderabad stating that he submitted application on 12.8.1996 after running the business of Yogeshwara Fertilizers for six years and requested the head office, Hyderabad to refund the security deposit amount and the head office allegedly assured him that they would send the cheque to his house. This letter is Ex.A4 dated 21.5.2010. From 12.8.1996 till 21.5.2010 more than three years period is elapsed. Through Ex.A5 the complainant got issued a notice to respondent No.1 and 2 on 4.10.2010. In Ex.A5 lawyer’s notice the complainant stated that the complainant has run the said shop till 1994 and wound it up and he has been demanding for the refund of the security deposit with interest. Except Ex.A1 receipt there is no other document to satisfy the forum that the complainant has been demanding for the refund of security deposit amount with interest. In Ex.A3 there is no mention with regard to alleged interest. There is no acceptable evidence except the affidavit of complainant (Pw1) to show that he approached respondents 1 and 2 number times but respondents 1 and 2 dodged the matter on one pretext or the other and caused harassment to him. Ex.A6 is certificate issued by the Asst.Director of Agriculture, Bichkunda dated 25.10.1996 to Yogeshwara Fertilizer retail dealer Wajidnagar certifying that the certificate of Registration bearing No.3193 granted for the period from 8.8.1993 to 7.8.1996 to carry on the business of selling fertilizers in detail to sell at the premises situated at Wajidnagar is hereby renewed from 8.8.1996 to 7.8.1999, unless previously suspended or cancelled under the provisions of the retiliser (Control) Order, 1985. Even Ex.A6 is also of no use to the complainant because even from the date of Ex.A6 i.e. from 25.10.1996 the present claim is barred by limitation because the present complaint was presented on 6.8.2011. In the notice the complainant stated that his business was wounded up in 1996 but in the notice Ex.A5 he stated that his business was wounded up in 1994. From the material papers on record it is clear that the complainant is businessman and dealer. He is not consumer. This C.C. before this Forum is not maintainable. Complainant ought to have approached the Civil Court for recovery of Rs.1000/-. It appears that as three years limitation period is expired, he did not approach the civil Court.
From 12.8.1996 three years limitation period will expire by 12.8.1999. Even if the certificate Ex.A6 is taken into consideration the complainant ought to have filed suit on or before 25.10.1999. Ex.A6 was issued on condition unless previously suspended or cancelled under the provisions of the retiliser (Control) Order, 1985. Moreover, the complainant is a businessman and dealer and under any circumstances, it cannot be said that the complainant will come under the definition of “CONSUMER”. Therefore, in the opinion of the Forum the complainant cannot be treated as consumer and this complaint before this Consumer Forum is not maintainable. In view of all these reasons, and in view of the evidence of Rw1 this complaint is dismissed.
Dictated to PA, transcribed by him, corrected and pronounced by the President in Open Forum on this the 21st day of September, 2012.
