Present: Sh. A.S. Sekhon counsel for the complainant with complainant.<br /> Sh. P. Betab counsel for the opposite parties.<br /> <br /> ORDER<br /> DHARAM SINGH PRESIDENT<br /> Major Singh Dhaliwal complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to refund/make the payment of deposit amount alongwith interest calculated @ 1.70% per month from 21.11.2006 to 28.5.2007 i.e. Rs.17,73,066/- and future interest @ 1.70% per month till the date of payment and to pay Rs.1,00,000/- as compensation for mental tension, pain, and agony and on account of deficiency of service rendered by the opposite parties to the complainant. <br /> 2. The complainant averred in his complaint that he is an Ex-service man retired from the Indian Army. The opposite party No. 2 is proprietor of M/s Kaptan Traders who is opposite party No. 3 and having commission agent business at shop number 17, New Grain Market, Faridkot and opposite party No. 1 being husband of opposite party number 2 is managing the affairs of the opposite party No. 3. The complainant was having good relations with the opposite party No. 1. The opposite party No. 1 told the complainant in the presence of opposite party No. 2 that their above said firm is accepting deposits from the general public @ 1.70% per month to run the business of opposite party No. 3. The complainant was having agricultural land and whenever the complainant was having any surplus funds with him he used to deposit the same with the opposite parties. The complainant was having his dealing with the opposite parties since 5/6 years. The mode of transaction between the complainant and the opposite parties was that when ever the opposite parties accepted the deposit from the complainant, the opposite party No. 1 used to give in writing in his own handwriting under his signatures about the acceptance of deposit from the complainant on the diary of the complainant with the consent of opposite party No. 2 in her presence. At the time of refund/ return of the deposit accepted by the opposite parties the calculations were also done on the diary of the complainant and there was no dispute with the opposite parties. The complainant at the request of the opposite party No. 1 deposited Rs.3,00,000/- @ 1.70% per month on 4.4.2005 which the opposite party accepted from the complainant on account of Harpreet Kaur daughter of complainant under the assurance that the above deposited amount with the opposite parties will be refunded to him with interest on demand. The opposite party No. 1 also scribed on the note book of the complainant as a token of having accepted the above deposit and put his signatures but till date the above deposit amount and interest is not refunded/returned to the complainant inspite of repeated demands raised by the complainant. On 21.12.2005 at the request of the opposite parties the complainant deposited his funds with the opposite parties to the tune of Rs.12,00,000/- @ 1.70% per month on the assurance given by them that the above deposit will be refunded to the complainant with interest on his demand and at the same time the opposite party also assured the complainant that opposite parties will issue post dated cheque to the complainant up to 21.5.2006 but inspite of repeated demands neither the above deposit amount nor interest has been refunded to the complainant by the opposite parties. So they are resiled from written promise. The complainant repeated visit to the opposite parties, had made the opposite parties to calculate the payable/refundable amount of the complainant and after calculations it is found that a sum of Rs.17,38,872/- is due and refundable to the complainant up to 20.11.2006. On 26.8.2006 the opposite party No. 1 scribed on the note book of the complainant in his own handwriting and put his signatures underneath the writing that accounting is done and I will refund this amount up to 20.11.2006. But the opposite parties have failed to refund the above calculated amount to the complainant. Then the opposite parties issued cheque number 544762 on 25.4.2007 from Cash Credit account number 224 of the opposite party No. 3 amounting Rs.50,000/- to the complainant. Again on 3.5.2007 the opposite parties issued cheque to the complainant bearing number 547525 amounting Rs.1,00,000/- from account number 919090/77 being maintained by the opposite party No. 1. The opposite party No. 1 and 2 got complainant signatures on the books of the opposite party No. 3 as a token of having received the above cheques. At the time of the filing of the complaint the amount of Rs.17,73,066/- due towards the opposite parties as calculated in the complaint. So the opposite parties be directed to refund deposit amount alongwith interest calculated up to 28.5.2007 Rs.17,73,066/- and to pay interest @ 1.70% per month from 29.5.2007 to the date of payment/refund of the above deposit amount. The opposite party be also directed to pay Rs.1,00,000/- as compensation for causing unnecessary mental tension and physical sufferings to the complainant which amounts to deficiency of services. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 30.05.2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice, the opposite parties appeared through Sh P. Betab Advocate and filed written reply taking preliminary objections that the complaint is not maintainable at all. The present dispute does not fall under the purview of the Consumer Protection Act as the complainant is not the consumer of the opposite parties under any of the provisions of the Consumer Protection Act. As per allegations in the complaint at the most suit for recovery lies in Civil Court after paying the advalorum Court fees. The complaint is bad for mis-joinder of parties. The opposite party No. 1 is not the representative of the opposite party No. 2 and 3 nor the opposite parties No. 2 and 3 have ever authorized opposite party No. 1 to make any dealing on behalf of the opposite party No. 2 and 3. The opposite party No. 2 and 3 are not bound by any act of the opposite party No. 1. The complaint is false, frivolous and vexatious and has been filed to harass and blackmail the opposite parties. The complicated questions of law and facts are involved in the present case for which trial in regular Court is required. The complainant has placed on the file numerous hand written documents which can be proved or disproved only be expert witnesses and other witnesses which is not possible in summary procedure before this Hon'ble Forum. The alleged documents produced by the complainant are not at all admissible in evidence and are not negotiable instruments. The complainant has filed a false complaint only to save himself from the liability of Rs.1,50,000/- taken by the complainant from the opposite parties. The complainant has taken the above referred amount from the opposite parties on the promise of return within one month but has not returned the same. When the opposite parties stressed upon the complainant to return the above referred amount the complainant has come with the present complaint. On merits the opposite parties submitted that it is wrong that the opposite party No. 1 is managing the affairs of the firm. The relations of the parties were of routine citizens and cannot be said to be special relations. The opposite party No. 2 is running commission agents firm and not any finance company, so question of accepting any deposits does not arise at all. Such an exorbitant rate of interest is also not practicable in market. It is wrong that the complainant used to deposit funds with the opposite parties. It is also that any writing was given by the opposite party No. 1. The story of any calculations is false and concocted. The opposite party has never requested for any deposit nor any deposit was made by the complainant. It is wrong that any writing was made in any alleged note book. It is wrong that any cheques were to be given. The said Harpreet Singh is a concocted witness who is having strained relations with the opposite parties. It is wrong that anything is due towards the opposite parties. When nothing is due towards the opposite parties then question of any refund does not arise at all. The amount of Rs.1,50,000/- was taken by the complainant as advance which is to be recovered from the complainant by the opposite parties. So the complaint be dismissed with costs of Rs.10,000/-. <br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of writings given by the opposite parties Ex.C-2 to Ex.C-4, attested copy of sale deed Ex.C-5 to Ex.C-8, copy of writing given by the opposite parties Ex.C-9 and Ex.C-10 duly attested by the complainant, copies of the cheques given by the opposite parties Ex.C-11 and Ex.C-12, affidavit of Harpreet Singh son of S. Baldev Singh Ex.C-13, affidavit of Paramjit Singh Officer Punjab and Sind Bank, The Mall, Faridkot Ex.C-13/A, copy of cheque No. 544760 dated 24.4.2007 for Rs.70,000/- Ex.C-14, copy of token book dated 24.4.2007 Ex.C-15, copy of cheque No. 544761 dated 24.4.2007 for Rs.2,00,000/- Ex,.C-16, copy of token book dated 24.4.2007 Ex.C-17, copy of cheque No. 544770 dated 1.5.2007 for Rs.50,000/- Ex.C-18, copy of token book dated 1.5.2007 Ex.C-19, copy of cheque No. 471602 dated 27.6.2007 for Rs.10,000/- Ex.C-20, copy of token book dated 27.6.2007 Ex.C-21, copy of cheque No. 471607 dated 9.7.2007 for Rs.20,000/- Ex.C-22, copy of token book dated 9.7.2007 Ex.C-23, report of Sanjir Sharma Finger Print and Handwriting Expert, Ferozepur Ex.C-24, photographs Ex.C-25 to Ex.C-48, negatives Ex.C-49 to Ex.C-72, standard signatures of opposite party No. 1 S-1 to S-8, signatures in original documents Q-1 to Q-8, signatures on their photocopy Q-1/A to Q-8/A and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties tendered in their evidence affidavit of Mohan Singh Captain Ex.R-1 and their evidence was closed by order of the Forum vide order dated 6.2.2008. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant has submitted that the complainant is entitled to recover the amount of Rs.17,73,066/- alongwith future interest at the rate of 1.70% per month till the date of payment as this amount is a balance payable by the opposite parties to the complainant as the complainant is consumer of the opposite parties who are running business of Commission Agents as well as financiers. <br /> 9. Learned counsel for the opposite parties has submitted that the complainant is not entitled to receive any amount from the opposite parties. The matter virtually is to be decided by the Civil Court. The matter in dispute is having complicated questions of law and facts. No amount has been received by the opposite parties from the complainant rather the complainant to ward off the payment of Rs.1,50,000/- to the opposite parties have filed this complaint. Even the complainant has added an amount of Rs.3,00,000/- pertaining to his daughter Harpreet Kaur, so the complaint is not maintainable. <br /> 10. From the perusal of the evidence and documents on the file it is made out that there is a relationship of customer and Commission Agent. There had been several transactions in between the parties with regard to lending and depositing of money. Complainant have collected sale proceeds as per sale deed Ex.C-5 to Ex.C-8 for depositing of the same with the opposite parties from time to time on allurements given by the opposite parties to the complainant for getting earned best rate of interest and withdrawal of any amount at any time of the complainant from the film of the opposite parties. The opposite parties had been making entries in the account book maintained by the complainant. The opposite parties have not placed on the file their own account books to falsify claim of the complainant. There is clear cut balance at the end of the writing executed by the opposite parties in favour of the complainant. So there is no necessity for rendition of accounts. No complicated questions of law and facts are involved so the complaint in all respects is maintainable in the District Consumer Disputes Redressal Forum. It is not required to be decided by the Civil Court. There is a relationship of Consumer and Service Provider in between the parties. As per pleadings of the parties the opposite parties had been deficient in providing services to the complainant by not making payment of the amount so calculated by the opposite parties on the account books of the complainant. <br /> 11. From the perusal of the account book entry Ex.C-9 and Ex.C-10 duly signed by the opposite parties it is made out that the opposite party Mohan Singh received amount of Rs.3,00,000/- from the complainant on 4.4.2005, making mention of this amount to be of Harpreet Kaur daughter of Subedar Major Singh Dhaliwal makes no difference as this deposit was made out by the complainant withs the opposite parties. Depositors may mention name of any person to be beneficiary of the amount. Since the complainant himself have deposited this amount so non joinder of Harpreet kaur as complainant in this complaint has not fatal to the case of the complainant. The opposite parties have agreed to repay this amount kept by him as trust money alongwith the interest at the rate of 1.70% per month on demand. Specific writing has been signed by Mohan Singh opposite party No. 1 with regard to receipt of this amount. Thereafter on 21.5.2005 a sum of Rs.12,00,000/- was handed over by the complainant to the opposite parties as a trust money. He agreed to repay the same alongwith the interest at the rate of 1.70% per month as and when needed by the complainant. He agreed to issue cheque in favour of the complainant. Thereafter calculations were made by the opposite parties up till 21.11.2006 and total amount payable by the opposite parties to the complainant was calculated to be 19,59,872/-. This entry was signed by the opposite party Mohan Singh on 26.8.2006. The opposite parties as per his commitment issued cheque dated 25.4.2007 signed by Amarjit Kaur for payment of Major Singh to the extent of Rs.50,000/- and another cheque worth Rs.1,00,000/- executed by the opposite parties on 3.5.2007 under his signatures payable to the complainant Major Singh. Statement of account and cheques Ex.C-14 to Ex.C-23 prove operation of the accounts by the Mohan Singh and by his wife Amarjit Kaur with regard to various transactions. <br /> 12. So the above noted amount of Rs.1,50,000/- cannot be said to be payable by the complainant to the opposite parties as complainant has deducted these amounts from the amount payable by the opposite parties to the complainant. The complainant have made correct calculations based on the above noted entries Ex.C-2, Ex.C-9 and Ex.C-10. Ex.C-2 is starting from the calculations made on 29.5.2002, these entries also have been signed by Mohan Singh opposite party No. 1. <br /> 13. Since Sh. Mohan Singh disputed his signatures on the above noted documents in possession of the complainant so complainant had to get compared disputed signatures of Mohan Singh with his standard signatures from his Handwriting and Finger Printing Expert Sh. Sanjeev Sharma and Handwriting and Finger Prints Expert submitted his report Ex.C-24. He has opined in unequivocal terms that disputed signatures marked Q-1 to Q-8 (Q-1/A to Q-8/A) are similar with standard signatures marked S-1 to S-8 in there basic writing, characteristics have been written by the same person (Mohan Singh) whose standard signatures are marked as S-1 to S-8. During his cross examination the opposite parties could not get illicited even single word against his report. So it is held that all the documents were signed and executed by the opposite party Mohan Singh in favour of the complainant. <br /> 14. As per World Link Finance Ltd. Versus M.R.Dixit reported in III (2000) Consumer Protection Judgments-319 with regard to deposit of securities there is a privity of contract. If amount is not paid then District Forum can direct refund alongwith interest. Receipts issued in favour of the complainant by the opposite parties make liable opposite parties to repay the amount. <br /> 15. As per Neela Vasant Rane Versus Amogh Industries and another reported in 1993(2) Consumer Law Today-356 if there is a default in repayment of deposit there is a deficiency of service and complainant is consumer. Default in obligation to repay is deficiency in service. <br /> 16. As per Vijay Trading Company and others Versus Chandrabai reported in 2003(2) Consumer Law Today-92, failure to refund the amounts deposited with any financial institution on maturity will amount to deficiency in service. It is found held in Modern Threads (India) Ltd. & Ors. Versus Lt. Col. B.K. Sharma & Ors. reported in I (2000) Consumer Protection Judgments-213 Vol. 1 that a depositor to deposit the money on promise of attractive rate of interest is a consumer. Company is rendering service within the meaning of Consumer Protection Act, 1986. <br /> 17. From the above noted facts and circumstances it is held that the opposite parties had been deficient in providing service to the complainant with regard to deposit and refund of the deposits to the complainant alongwith agreed rate of interest. So the complaint filed by the complainant is accepted. Accordingly the opposite parties are directed to make the payment of Rs.17,73,066/- to the complainant within the period of one month from the date of the receipt of the copy of this order, failing which the opposite parties are directed to pay the amount of Rs.17,73,066/- alongwith interest at the rate of 12% per annum from the date of the filing of this complaint till the realization of the amount. No order as to costs. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 20.3.2008<br /> <br />