HYDERABAD

F.A.No.962/2005 AGAINST C.D.No.230/2002 DISTRICT  FORUM, MAHABOOBNAGAR.

Between-

1. The Secretary, Jayanthi Educational Society

    C/o.Sri Vishweshwaraiah Institute of Science and

             Technology Engineering College,

     Chowderpally Village, Devarkonda Mandal,

     Mahaboobnagar District.

2. The Principal, Sri Vishweshwaraiah Institute of

     Science and Technology Engineering College,

     Chowderpally Village, Devarkonda Mandal,

     Mahaboobnagar District.                                                ..Appellants/Opposite parties

And

C.Raghavendra, S/o.C.Ram Chandraiah,

Aged about 22 years, Occ-Student,

R/o.C/o.Srinivasa Binny Modern Rice Mill,

Kothakota Village and Mandal,

Mahaboobnagar district.                                                      Respondent/Complainant.

Counsel for the Appellant- Mr.M.Venkataramana Reddy.

Counsel for the Respondent-M/s.V.Gourisankara Rao.

QUORUM-THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

SMT.M.SHREESHA, HON’BLE MEMBER.

AND

SRI G.BHOOPATHI REDDY, HON’BLE MEMBER.

FRIDAY, THE EIGHTH DAY OF FEBRUARY,

TWO THOUSAND EIGHT.

Oral Order-(Per Smt.M.Shreesha, Hon’ble MEMBER)

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Aggrieved by the order in C.D.No.230/2002 on the file of District Forum, Mahaboobnagar, opposite parties preferred this appeal.

The brief facts as set out in the complaint  are that the  complainant had appeared for EAMCET  Entrance Test conducted in 1999 by Government of Andhra Pradesh and secured 529979 rank and submitted as he belongs to OC category, had a doubt about getting a free seat in Engineering College and approached opposite party No.1 to ascertain his position.  The complainant submitted that opposite party No.2 was also present at that time and he enquired them about his chances of getting a seat and they expressed doubt about his getting free seat or payment seat and suggested him to pay Rs.50,000/- and reserve a seat under NRI quota in their college.  The complainant submitted that the opposite parties promised to refund  the advance amount of Rs.50,000/-, if he secured a free seat in a government college or any other private college and suggested to pay the advance amount by way of cheque.  The complainant submitted that neither he nor his father had bank account and hence he approached his paternal uncle, Krishnaiah, who came forward to issue a cheque in favour of opposite parties and thus the complainant  paid to him Rs.50,000/- in cash and his uncle issued a cheque bearing No.900921 dated 25-8-1999 for Rs.50,000/- in favour of opposite parties  and opposite party No.1 received the cheque and issued a receipt.  The complainant submitted that he secured a seat in J.S.N.College, Kaghaj Nagar and could not personally approach the opposite parties for taking refund of the amount  and therefore his father and paternal uncle, Krishnaiah, approached opposite parties several times for refund of the amount of Rs.50,000/- but they postponed refund of the amount on some reason or the other and ultimately on 20-3-2002 refused to refund the amount and adopted unfair trade practice.  Hence the complaint for a direction to the opposite parties to refund Rs.50,000/- with interest at 36 percent p.a. from 24-8-1999 till the date of payment together with compensation of Rs.1,00,000/- and costs.

Opposite parties 1 and 2 filed counter  and denied the allegations made in the complaint that the complainant paid them Rs.50,000/- by cheque as advance towards payment seat under NRI quota for reservation of seat and that they refused to refund the amount on his securing a free seat.  They also denied that one Krishnaiah has issued a cheque No.900921 dated 25-8-1999 and submitted that it is a concocted story to grab the amount from the opposite parties.  They further submitted that the said Krishnaiah is one of the Directors of their College and that every director used to take amounts and refund to the college and sometimes the directors were asked to invest further amounts for the development of the college and therefore the said Krishnaiah had sent the said cheque for Rs.50,000/- to the college through the complainant and the complainant being a new person insisted a receipt and therefore opposite party No.1 issued receipt on plain paper but did not issue official receipt.  Opposite parties further submitted that taking advantage of the same, the complainant filed the C.D. without any prior notice and when opposite parties enquired Krishnaiah about sending his contribution amount through the complainant, the said Krishnaiah gave a letter to the college that he sent the cheque through his brother’s son to handover the same to the college and he never insisted on any receipt.  Opposite parties denied the allegations made in the complaint and submitted that the complaint is barred by limitation and submitted that the complainant had taken advantage of the receipt on plain paper issued by opposite party No.1 and prayed for dismissal of the complaint with costs of Rs.10,000/-.

Based on the evidence adduced i.e. Exs.A1 to A9 and the pleadings put forward, the District Forum allowed the complaint in part against opposite party No.1 directing it to refund Rs.50,000/- to the complainant with interest at 12 percent p.a. from the date of complaint (27-3-2002) til the date of payment together with costs of Rs.300/- and dismissed the complaint against opposite party No.2.

Aggrieved by the said order, opposite parties preferred this appeal.

The learned counsel for the appellants submitted that the paternal uncle of the respondent/complainant is one of the Directors of the Education Committee and he contributed his share through a cheque to the appellants’ college and that the receipt was issued on white paper and it is not an official receipt.  He further contended that the respondent/complainant did not file the complaint within two years from the date of cause of action and therefore the complaint is barred by limitation.  He submitted that the cause of action arose on 25-8-1999 and that the complaint was filed on 27-3-2002 and therefore the complaint is barred by limitation.  The learned counsel also submitted that the question of refund of the amount does not arise since no services were extended by the appellants’ college and therefore the respondent/complainant ought to have approached the civil court for redressal.

The learned counsel for the appellants relied on the decisions of various State Commissions for the proposition that in respect of allegations of fraud and in matters where elaborate oral/documentary evidence is necessary and also when complications questions are involved, the matters should be filed before the Civil court and relied on the following decisions-

In BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION reported in  I (2001) CPJ 585 in R.K.FLORICULTURE (P) LIMITED v. PUNJAB AND SIND BANK  wherein it was held that-

Deficiency in service-Banking Service-Rs.65,000/- withdrawn by somebody

Else-Amount released by bank without proper verification-CBI investigating

            the matter-All relevant papers seized-Elaborate oral/documentary evidence

            required-Matter cannot be satisfactorily adjudicated upon in time bound

            proceedings under C.P.Act-Complaint not maintainable-Complainant

            at liberty to approach civil court.

In I (2002) CPJ 359 in HERAMBALAL DAS v. DR.AJOY PAUL and ORS. wherein it was held that-

            ‘C.P.Act, 1986-Section15-Appeal-Summary Jurisdiction-Maintainability

            of complaint-complication questions regarding fabrication and manipulation

            of documents involved-Elaborate oral and documentary evidence including

            expert opinion required-Matter cannot be adjudicated in summary jurisdiction

            -complaint not maintainable, dismissed’.

In I(1995) CPJ 10 APSCDRC in VEMURI BHARATHI v. M/S.VIJAYA CREDIT

CORPORATION and OTHERS it was held as follows-

            ‘ Consumer Protection Act, 1986-Section 2(1)(g)-Deficiency in service

            Section 14(1)(c)-“Refund” “Deposits”-Complainants deposited money

            with O.P. failed to return amount O.P.Nos.4, 5  and 6 contended that they

            were not partners in O.P firm and their signatures were forged-whether

            the claim of O.P.Nos.4, 5 and 6 can be settled by the Commission? (No)

            whether the issue of forgery be decided by Civil Court? (yes)

In VIII 1994 (2) CPJ NCDRC in THE CHIEF GENERAL MANAGER, MAHANAGAR TELEPHONE NIGAM LTD., v. SURESH BHARGAV it was held as under-

            ‘C.P.Act, 1986-Section 2(1)(g)-Deficiency in telephone service-

            Direction by lower Redressal Agencies to MTNL to provide unmetered

            service in respect of complaints regarding malfunctioning of telephones

            in addition to telephone No.198-Revision against –whether such directions

            are sustainable in law (No)

As against this the learned counsel for the respondent/complainant submitted that the receipt Ex.A1 dated 24-8-1999 was issued by the Secretary of the Society and that the cheque was issued by the student’s/complainant’s uncle.  He further contended that in the counter, the appellants never stated that they lost the seat and  submitted that the amount was advance for reserving a seat.  With respect to limitation, he submitted that it is continuing cause of action since the receipt was dated 24-8-1999 and the complaint was filed on 27-3-2002 and therefore the complaint is not barred by limitation.

We have gone through the material on record.  Ex.A1 is the receipt dated 24-8-1999 in which it is stated that an amount of Rs.50,000/- was received through cheque No.900921 dated 25-8-1999 towards part payment for NRI seat in ECE for C.Raghavendra S/o.Ramachandraiah.   Keeping in view that this receipt was issued in the name of the complainant towards part payment of NRI seat, we find the contention of the appellants that the amount was received towards the director’s contribution for the development of the college is unsustainable.  It is pertinent to note that this amount was received only as part payment i.e. as advance towards NRI seat and the admission has not been confirmed and therefore the contention of the appellants that the question of refund does not arise is unsustainable.  The appellants in their counter submitted that the said Krishnaiah is one of the Directors of the college, and he was asked to invest further amounts for the development of the college and that there is no evidence on record to support this contention of the appellants.  Moreover, Ex.A1 receipt clearly states that the amount is towards part payment for NRI seat.  Therefore, we are  of the view that there is deficiency of service on behalf of the appellants in not refunding the amount when the respondent has not attended a single class  and has only paid the amount towards NRI quota seat and the appellants have not placed any evidence on record to state that one seat was lost because of the respondent/complainant having chosen to take admission in another college.  As against the contention of appellants that these matters ought to be relegated to civil court, we rely on the decision reported in AIR 2002 SC P-2931  in DR.J.J.MERCHANT and OTHERS v. SHRINATH CHATURVEDI wherein it was clearly laid down that

the redressal agencies constituted under the Consumer Protection Act, 1986  cannot relegate function assigned to them to a civil court  on the ground that complicated questions are involved in a given case.  The Apex court further observed that the National Commission is headed by a former judge of Supreme Court, the State Commission is headed by a former judge of High Court and the District Forum is headed by a former District Judge as its President.

The next contention of the appellants is that the complaint is barred by limitation since the cause of action arose on 24-8-1999 and the complaint was filed on 27-3-2002 and relied on the judgement reported in VIII -1994(2) NCDRC in SURESH NARAYAN LALL v. MANAGING DIRECTOR, BIHAR STATE FINANCIAL CORPORATION and ORS. wherein it was held that-

C.P.Act, 1986-S.24A-Limitation Period-Instances of deficiency of

service arising in 1986, 1987-complaint filed in 1993-whether

time barred (yes).

Against this the learned counsel for the respondent/complainant submitted that seat was secured on 8-12-1999 and only thereafter they had approached the appellants for refund of Rs.50,000/- and whereas it is not the case of the appellants that the respondent never approached them for refund of the amount and  it is their contention that the amount was never paid towards NRI seat.  We are of the considered view that there is continuing cause of action since the respondent/complainant had secured a seat only through EAMCET on 8-12-1999 and has requested the appellants several times for refund of the amount paid towards advance of N.R.I. seat and therefore we are of the view that the complaint is not barred by limitation.  For the reasons aforementioned,  we confirm the order of the District Forum except for reducing the interest from 12 percent p.a. to 9 percent p.a.

In the result the appeal is allowed in part and the order of the District Forum is modified by reducing the interest awarded on the amount of Rs.50,000/- from 12 percent to 9 percent p.a. from the date of complaint till date of payment while confirming the other aspects of the order of the District Forum.  Time for compliance six weeks.

                                                       PRESIDENT.    LADY MEMBER.    MALE MEMBER

JM                                                                       Dated 8^th February, 2008.