Delhi

StateCommission

CC/09/129

N.K. PHILIP - Complainant(s)

Versus

ELEEGANT CAR ACCESSORIES PVT. LTD. AND ORS. - Opp.Party(s)

02 May 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 22.04.2016

Date of Decision : 02.05.2016.

Complaint No. 129/09

 

In the matter of:

Mr. N.K. Philip S/o R.P. Philip,

1210, D-5/407, Ratia Marg, Sangam Vihar,

New Delhi-110062.                                                                           ..........Complainant

 

Versus

1. M/s. Elegant Car Accessories Pvt. Ltd.,

(The Auto Motive Shop)

B-II/38, Lajpat Nagar, New Delhi-110024.

 

2. Om Malhotra, Prop. Of M/s. Elegant

B-II/38, Lajpat Nagar, New Delhi-110024.

 

3. Mr. Kapil Malhotra S/o Sh. Om Malhotra,

B-II/38, Lajpat Nagar, New Delhi-110024.

 

4. Mr. Sachin Malhotra S/o Sh. Om Malhotra,

B-II/38, Lajpat Nagar, New Delhi-110024.

 

5. M/s. Perfume Chits Pvt. Ltd.,

A-62, Lajpat Nagar,

New Delhi-110024.                                            …....Opp. Parties

                                                                

CORAM

O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

 

 O.P. Gupta, Member (Judicial)

1. The present complaint has been filed on the allegations that complainant was an employee of OP-1 who is proprietor of OP-2. OP-3 & 4 who are sons of OP-2 were also looking after the business of OP-1.  Complainant started working as salesman in OP-1in February, 1990. He was getting salary of Rs.5000/- per month apart from overtime of four hours per day amounting to Rs.5000/- per month. OP-2 provided free accommodation in the basement to the complainant for his stay without any charges. Claimant only had to incur expenditure of feeding himself. OP-2 had also business of Chit Fund in the name of OP-5. From January, 1991 OP-2 never paid the entire salary to the complainant, rather he used to deposit a major portion of his salary in his own Chit Fund and provide cash receipt.  Complainant had no option but to agree, otherwise his job was at stake. The complainant deposited more than 20 lacs in the said Chit Fund till January, 2004.  In October 2004, complainant demanded his funds back, OP issued cheque of Rs.20,01,250/- drawn on Karnataka Bank, Lajpat Nagar, New Delhi.  On presentation, the said cheque could not be encashed on account of “account closed”. OP-2 hatched a conspiracy with SHO PS – Lajpat Nagar and got FIR No.842/04 u/s 381/420/467/468/471 IPC registered against complainant.  The complainant was arrested and remanded to judicial custody.  He suffered a lot. The complainant was likely to be discharged in the said criminal case.  OPs have cheated to the tune of more than 20 lacs.  Cause of action arose in January, 1991 when OP started depositing salary of the complainant in the Chit Fund, the same arose when funds were deposited till 2004. It also arose when complainant demanded funds back and OP gave cheque dated 18^th October, 2004.  Hence this complaint for directing OP to pay Rs.20,01,250/- alongwith interest @24% and for compensation for mental and physical harassment, cost of suit.

 

2. OPs filed common reply raising preliminary objections that complaint was not maintainable as complainant was not a consumer, complainant was an employee who seeks to recover Rs.20,01,250/- with interest @24% per annum.  As per complaint, the said amount represents the portion of salary and complaint for recovery of salary is not maintainable in this Commission.  They denied that complainant was working as salesman or that his salary was Rs.5000/- per month apart from overtime. According to them, complainant worked as part time car cleaner and during the period he stole a blank cheque from the office of OP, filled up the amount, date and time and tried to obtain its payment. On intimation from OP’s bank, complainant was got arrested red handed by police and FIR  was registered.  The complainant was likely to be convicted in the said case.  Complicated question of cheating, forgery are involved which cannot be adjudicated in summary procedure under Consumer Protection Act. The complaint was hopelessly barred by limitation. The complaint has been filed after inordinate delay of more than 927 days. Complaint is bad for mis-joinder of the parties.  OP-1 is a proprietorship concern of OP-2. On merits, they repeated the same defence and stated that complainant used to be paid a sum of Rs.10/- per car per day for cleaning. The receipt pertaining to Perfume Chits Pvt. Ltd. were got printed by complainant. The same were fabricated and had nothing to do with Perfume Chits Pvt. Ltd. The receipts are not in the writing of any of the employees of OP. Perfume Chits Pvt. Ltd. never had office at A-62, Lajpat Nagar-I, New Delhi, the same operated from its registered office at 235, Defence Colony Flyover Market, Jungpura side. Copy of actual receipt form of OP-5 is annexure R/2 (not filed).
3. Alongwith reply, the OPs moved an application u/s 26 Consumer Protection Act for deciding maintainability of complaint on the plea that complainant was not a consumer and complaint was not maintainable. The said application is still pending.

 

4. The complainant had moved an application for condonation of delay alongwith complaint on the ground that the police seized all the documents during investigation and did not give even copy of the same to the complainant. The complainant was helpless and it was only in May, 2009 that he could manage to take photocopy from police, he is a poor person and did not have enough means to file the complaint, he remained unemployed after he was arrested in false FIR in 2004. He was under deep shock after he was arrested and his health deteriorated and was not able to decide about filing of complaint.

 

5. The application has been opposed. First I proceed to decide the complaint, the cause of action arose lastly in 2004 when the complainant allegedly demanded his dues and was given a cheque.  The complain has been filed in 2009 i.e. after five years whereas limitation u/s 24 A Consumer Protection Act is two years. The allegations made in the application for condonation of delay are not sufficient to condone a long delay of about three years.  Poverty is no ground to condone delay.  Moreover in case under Consumer Protection Act nominal court fee is required to be paid. Deep shock, deteriorated health are again no ground for condonation of delay. The application does not disclose as to when he was shocked, how long he continued under shock, when he came out of the shock. It has been held by Hon’ble Supreme Court in Haryana Dairy Development Authority Vs. Tej Refrigeration Industries Ltd. (2013) 14 SCC 758 that strict compliance with section 24A Consumer Protection Act is required. The application for condonation of delay is dismissed. With this complaint must automatically stand dismissed as being barred by limitation.

 

6. Anyhow, even on merits this Commission has no jurisdiction. Consumer court cannot entertain a suit for recovery of salary, they cannot entertain  a suit for recovery based on dishonoured cheque. The complainant has not filed any application for membership in Chit Fund, any agreement for subscription to Chit Fund, any statement of account of subscription made by him.  He has simply relied upon the photocopy of receipts of subscription, genuineness of which has been disputed by OP.  The question of receipt being false, forged and fabricated require oral evidence, cross-examination which cannot be done in summary procedure under Consumer Protection Act.

 

7. The contention of complainant that question of forgery has been negated by criminal court while discharging him in FIR No.842/04 vide order dated 23.01.2013, is misplaced. In that order the forgery of cheque relied upon by the complainant has been decided and not forgery of cash receipts of subscription to the Chit Fund month by month.

 

8. The complaint is dismissed.

 

9. A copy of this order be sent to both the parties free of cost.

 

10. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)                                                                                 ​