AT HYDERABAD.

F.A. 1403/2006 against C.C 249/2005,

Dist. Forum, West Godavari at Eluru

Between:

Eathakota Annavaram

S/o. Late Peda Satyam

Age: 48 years, Bhimdole

West Godavari Dist.

Rep. by its Managing Director

Of Sri Srinivasa Chits & Finance

Gandhi Bomma Centre

Railway Station Road

Bhimdole (Mandal)

West Godavari Dist.                                     ***                         Appellant/

                                                                                                 Opposite Party  

                                                                    And

Gandham Siva Rama Prasad

S/o. Late Suryanarayana

Age: 36 years, Branch Manager

Of Sree Venkatrya Chit Fund Pvt. Ltd.,

Jangareddigudem (M)

West Godavari Dist.

                                                                    ***                        Respondent/

                                                                                                 Complainant.      

Counsel for the Appellant:                          Mr. M. Venkataramana Reddy

Counsel for the Resp:                                 Mr. D. Narasimha Rao

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

SMT. M. SHREESHA, MEMBER

FRIDAY, THIS THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

This is an appeal preferred by the opposite party the  appellant against the order of the Dist. Forum  along with FAIAs 751/2007 to FAIA No. 753/2007 in directing it to pay the amount covered under the FDR receipts.

          The case of the complainant  in brief is that the appellant is the Managing Partner running a chit fund and finance business under the name and style of  ‘Sree Srinivasa Chits & Finance’.   He deposited  an amount of Rs. 2,50,000/-  on 15.11.2000  on which the appellant issued  fixed deposit receipt  Ex. A1 agreeing to pay  the maturity value of  Rs. 5,00,000/- by  16.11.2005.  Despite repeated requests  and registered notice under Ex. A2  the appellant did neither give any reply nor paid the amount.  Hence this complaint.

          The appellant resisted the claim alleging that he has been running a chit business under the name and style of  ‘Sri Srinivasa Chits & Finance’  under the provisions of  A.P. Chit Fund Act.   However, he did not take any deposit from the complainant.   The complainant  fabricated the fixed deposit receipt.   The seal bears the name of the firm  as ‘Sree’.  He never used the said seal with the said name.   The signature on the FDR does not belong to him.   He does not have any power to receive deposits from the public.   He did not show this  deposit  in the Income Tax Returns.  The complainant worked as  Manager in Venktraya Chits & Finance and  created this document and therefore prayed for dismissal of the complaint.

          The complainant  in proof of his case filed his affidavit evidence and got Exs. A1 to A4 marked while the appellant filed Exs. B1  Byelaws, Exs. B2 & B3 Income Tax returns and Ex. B4 registration certificate of appellant.

          The Dist. Forum after considering the evidence placed on record opined  that  the signature on Ex. A1  FDR with that of the signature on the acknowledgement of  court  notice  and registered notice are one and the same.  Later the appellant changed his signature  and started  signing differently  while signing on the vakalat, counter etc. Accordingly  the appellant was directed to pay  Rs. 5,00,000/- covered under the FDR with interest   @ 12% p.a., from the date of  maturity till the date of realization together with compensation of Rs. 10,000/- and costs of Rs. 2,000/-.

          Aggrieved by the said  decision, the appellant preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.  It ought not to have compared the signature  and should have sent it to an expert.  Apart from it, it did not consider  the difference in seals affixed on the FDR with that of the seals on Exs. B1 to B4.   It is in typewritten form and not printed which is not usually used in business.   No opportunity was afforded for  him  to cross-examine the complainant and therefore prayed that the appeal be allowed.

          During the course of hearing the appeal,   the appellant filed applications 1) FAIA No. 751/2007 to receive  documents i.e., Exs. B5 to B14 viz., plaint in O.S. No. 24/2000 on the file of Principal Senior Civil Judge, Eluru filed by the appellant,  plaint copy in O.S. No. 261/2000 filed by appellant against third parties, partnership deed, common seals etc. 2) FAIA No. 752/2007  to send Ex. A1  to an expert at Government Security Press, Nasik and 3) FAIA No. 753/2007 to  implead  other partners of ‘ Sri Srinivasa Chits & Finance, Bhimadole’ and also a tape which said to have contain the conversation of  an advocate,  who said to have appeared in the suit  O.S. No. 24/2000.   

The complainant alleges that he deposited Rs. 2,50,000/- with the appellant who represents the firm as Managing Partner and he in turn issued Ex. A1 FDR  agreeing to pay Rs. 5,00,000/- by the date of maturity i.e., 6.11.2005.   Admittedly when the complainant issued registered notice under Ex. A2  he received it under acknowledgement Ex. A4.   The   appellant did not deny as to the issuance of notice by the complainant to him  nor he could give any explanation as to why he did not give any reply.  He did not even affix the seal when he received the registered notice.  Necessarily an adverse inference could be drawn against him.  The presumption that could be drawn is that as he was aware that he had to pay, he kept quite. 

The appellant  contends   that the seal affixed on Ex. A1 is not the seal that is being used by the firm.   The contention of the appellant is that his company’s  name is ‘Sri Srinivasa Chits & Finance’ and not ‘Sree Srinivasa Chits & Finance’ and therefore it does not belong to him.   Apart from it, the FDR is in typed form and not in printed form which ordinarily issued by him.   We may state that the appellant did not file specimen of  deposit receipt issued by  its  firm to third parties  in order to appreciate the contention taken by him in this regard.

Admittedly, he is the Managing Partner  of the firm.  Though he signed as Managing  Partner representing the firm he did not append the seal either on the vakalat or on the registered notice as earlier pointed out.   A bare perusal of  signature on Ex. A1 with that of the signatures  particularly  on Ex. A4  acknowledgement  and the notice of the  Court  would undoubtedly disclose that  they are similar.   Later, he changed his signature  even  on the vakalat and the version filed by him and other documents.  When the appellant did not intend to pay the amount, obviously,  he must have  appropriated  the amount and therefore he did not show it  in his Income Tax returns.   

At any rate, he did not  file documentary evidence to  establish the said fact.   Even the so called seals that were affixed to the counter etc. are different  from the  seal appended  by him on Ex. B1 to B4  and the version filed by the appellant.  They are in different font.   The Dist. Forum has undoubted authority to compare the signatures  and come to a conclusion by even recoursing to principles of natural justice.

          During the course of hearing the appellant filed applications to receive various proceedings between him and others  in order to show that a civil  suit was pending and therefore the Dist. Forum has no jurisdiction.   Since the proceedings are summary in nature, we allow the application to receive the documents  and assign as Exs. B5 to B14.   A perusal of the plaint  filed by him before the  Principal Senior Civil Judge, West Godavari  shows that he filed a suit as Managing Partner of the firm  ‘Sri Srinivasa  Chits & Finance’  against third parties.  He also introduced another fact that he along with one B. Srinivasa Rao entrusted the brief to Sri Dronamraju Satyanarayana Murthy, an advocate and handed over all those documents for filing a suit against third parties.  Later  Sri B. Srinivasa Rao  filed a complaint against him before the Bar Council for not filing the suit.  In fact the very same advocate appeared for him in O.S. No. 24/2000 on the file of Principal Senior Civil Judge, Eluru and in O.S. No. 261/2003 on the file of Additional Senior Civil Judge, Eluru.   In order to establish  that sort of collusion  etc. he filed an audio tape which contains conversation  wherein he said to have admitted the same.   Since those proceedings are against third parties which have no bearing on the issue involved in the suit,  they are besides the point.   Even if these documents are considered, it cannot be said that the appellant did not receive any amount from the complainant. Such an inference cannot be deduced.

          The appellant filed O.S. No. 47/2008   on the file of Dist. Judge, Eluru to cancel Ex. A1  deposit receipt.   It was obviously filed after the Dist. Forum directed him to pay the amount covered under the FDR.   He did not seek any declaration that the order passed by the Dist. Forum was non-est.  It was subsequent to the order passed by the Dist. Forum.   It is obviously filed to get over the order passed by the Dist. Forum.   These are all tactics that could be adopted by the parties to get over the inconvenient orders passed by the Fora.  In  order to rebut the said fact, the respondent equally  filed the affidavits of creditors of  appellant wherein they asserted that the appellant had issued  FDRs to them when they deposited the amounts.

          The appellant also sought  Ex. A1 to be sent to Government Press, Nasik  in order to know the year  on which the revenue stamp was released  to the public. We do not see how it was relevant.  He did not take this  contention before the Dist. Forum or in the grounds of appeal that it did not relate to the year in which its was issued.     This is a belated plea, obviously, taken to drag on the matter.   We do not understand as to why the partners are to be added when he was  adequately representing the firm as Managing Partner.   The question of impleading all the partners would not arise.  That was not the stance of appellant during the entire proceedings before the Dist. Forum. 

          Learned counsel for the appellant contended that in view of questions raised by the appellant, it is  only Civil Court that  could adjudicate the matter.   The Dist. Forum cannot determine the complicated questions of fraud and collusion raised by the appellant in this regard.   In support of his contention he relied the following decisions. 

• Bombay Dyeing & Manufacturing Company Ltd. Vs. Union of India  I(2001) 1 (NC).

• Padma Cotton Yarns Ltd., Vs. National Insurance Company Ltd., I (2005) CPJ 86 (NC)

• M/s. Special Machines Vs. Punjab National Bank,  1991(1) CPR  52.

• Kewal Ram Thakur Vs. Senior Superintendent of  Post Offices 1998(1) CPR  92.

• Trans Scan Securities P. Ltd., Vs. Oriental Insurance Company Ltd. I (2003) CPJ 94.

• Proprietor, Jabalpur Tractors Vs. Sedmal Jainrain & another 1995 Supp(4) SCC 107.

• Jawaharlal Chamanlal Mody Vs. LIC of India  1996(1) CPR 128.

          There is no quarrel that complicated questions of  fact and law cannot be adjudicated by the consumer fora.   Simply because a question was raised it does not mean that they were complicated.  It could assume  in a given facts of the case.  We do not see any complication in this matter.   Since the appellant had filed a suit before the Dist. Court subsequent to the passing of the order, obviously to get over the order of the Dist. Forum, we do not think that could be termed as subjudice. 

          We have closely perused the entire record and are of the opinion that the appellant having accepted the amount from the complainant issued Ex. A1 promising to pay Rs. 5,00,000/-  by maturity date, he did not reply when a notice was issued by the complainant, admittedly received by him under acknowledgement Ex. A4, necessarily an adverse inference has to be drawn for not issuing reply.  It will be deemed that since  he was indebted to the complainant, he did not give any reply.  The signature when compared with that of the admitted signatures would undoubtedly show  that it is the appellant who signed on Ex. A1 and issued the receipt.            We do not see any flaw in appreciation of the evidence or law in this aspect by the Dist. Forum.  We do not see any merits in the appeal.

          In the result the appeal is dismissed with costs computed at Rs. 2,000/-.  Time for compliance four weeks.

                    PRESIDENT                                     LADY MEMBER                                                                     Dt. 23. 01. 2009.