Aggrieved by the order dated 11.04.08 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in OP NO. 243/92, the original complainants have filed the present appeal. The operative part of the impugned order passed by the State Commission reads as under :- ..2.. “ In the circumstances and in the light of the evidence adduced we find that the complainants are entitled for sum of Rs.4.25 lakhs as well as for Rs.1.25 lakhs as evidenced by Ex.P12 cheque and Ex.P13 Promissory Note. The sum of Rs.4.25 lakhs, as admitted is due from the 1st opposite party vide the judgment in the proceedings in Section 138 NI Act case. In case the amount is realized in the above criminal proceedings, the complainants will not be entitled for the same in the instant proceedings. The complainants would be entitled to realize the amounts from the assets of the deceased 1st opposite party vested with the 2nd opposite party if any. Considering the circumstances of the case the complainants will be entitled for interest @ 9% per annum from the date of complaint on Rs.1.25 lakhs covered by the promissory note. The OP is allowed accordingly. “ 2. We have heard Major K. Mathews, attorney of the appellants and Mr. Wills Mathews, learned counsel for the respondent No.2, Mrs. Ponnamma Vergis, in the appeal. The attorney of the appellants would assail the impugned order primarily on the ground that it is not based on correct and proper appreciation of the evidence and the material brought on record and, in any case, the findings recorded by the State Commission as to the amount deposited by the complainants and to which they were entitled and the relief are inconsistent and erroneous based on an incorrect reading of agreement/undertaking – Exhibit P-14. In this connection, he has
..3.. invited our attention to the findings and observations made by the State Commission in paras 8 and 13 of the impugned order which are reproduced below for proper appreciation of the material:- “8. The evidence, objective in nature in support of the case of the complainants consists of the following. Ex.P3, the statement of accounts and Ex.P4 the letter in the letter head of OFURCO dated 8.2.90 signed by the 1st opposite party wherein the balance due to the Company mentioned is 36,726.50 and P12, P13 and P14 the copies of the Cheque, Promissory Note and Agreement would show that the amounts are due as contended by the complainant. Ex.P3 statement of account mentions that the balance to be paid to the company as Rs.408563.30 and Ex.P4 mentions the balance only as Rs.36726.50/-. The fact that Agricity venture crashed is evident from Ex.P5 letter and Ex.P6 blank authorization sent to contributors. Considering Ex.P4, P5 and P6 in the background of brouchers and publicity of the Agricity scheme would reveal that the entire venture was a hoax meant to deceive the contributors. Hence, we find that the evidence would indicate that the complainants have remitted the amounts as contended. Of course the evidence of PW2 one of the Directors and Ex.P5/P19 letter of PW2 and her husband cannot be treated as an impartial piece of evidence as they themselves were allegedly deceived by the 1st opposite party to the tune of 25 lakhs. Ex.P12, P13 and P14 are clinching so far as the liability is concerned. The opposite parties have no consistent case as noted in the order dated 8.7.97 of this Commission. Opposite parties had stated in the statement filed before the National Commission that the complainants have paid a sum of Rs.2,21,700/- in 7 instalments and the balance to be paid by the complainant is Rs.1,28,377/-. The above statement ..4.. has been marked as P23 in the above order. Subsequently the stand taken is that only a sum of Rs.62500/- has been paid. We find that the evidence adduced in support of the version of the complainant that altogether a sum of Rs.9.75 lacs has been paid appears genuine. Exs. P13 cheque and P14 promisory note has been issued by the 1st opposite party. As mentioned earlier the accused had been convicted in the criminal case filed under section 138 of the NI Act with respect to the above dishonoured cheque. 13. So far as the Ex.P14 Agreement is concerned, we find that the recitals provide for selling back 31.42 acres of land to the 1st opposite party. In the 2nd paragraph of Ex.P14 Agreement, it is mentioned that the above extent of land was sold by the 1st opposite party to the 1st complainant and that soon after the payment of the final instalment of Rs.4,25,000/- the above land will be retransferred to the 1st opposite party. There is no explanation from the side of the complainants as to the above recital in Ex.P14 Agreement. The complainant is not entitled to rely only on a particular portion of the agreement i.e. regarding the payment of Rs.4.25 lakhs and ignore the obligation mentioned in Ex.P14 agreement that 31.42 acres should be retransferred. In the absence of any undertaking in this regard or explanation with respect to the above clause incorporated in the Agreement no direction can be issued by us that the amount of Rs.4.25 lakhs should be paid to the complainant. Hence the claim for the above sum of Rs.4.25 lakhs is negatived.” 3. A bare perusal of the above findings and observations made by the State Commission does not bring out the mind of the State
..5.. Commission as to how after returning a positive finding to the effect that “we find that the evidence adduced in support of the version of the complainants that altogether a sum of Rs.9.75 lakh has been paid, appears to be genuine” as to why the State Commission has reduced the payable amount to a sum of Rs.4.25 lakh and Rs.1.25 lakh only. It appears that the State Commission has gone by surmises in assuming that pursuant to the agreement- Exhibit P-14, by which the Opposite Parties had undertaken to pay last installment had paid the amount of Rs.4.25 lakh but the land which was to be re-conveyed by the complainants had not been so re-conveyed. It appears that though no material was adduced from the side of the opposite parties to show that pursuant to the said agreement – Exhibit P-14 they had actually paid the final installment of Rs.4.25 lakh entitling them reconveyance of the land in question. In fact this aspect had become suspicious one, once the State Commission had itself held that the entire venture was a hoax meant to deceive the contributors of Agricity launched by the opposite party. If that was so, the stipulation in the agreement that 31.24 acres land was conveyed in favour of the complainants itself become suspect. All these ..6.. aspects need to be gone into and answered by the State Commission. 4. It is not disputed that in terms of the order passed by the State Commission and pursuant to the disposal of the SLP filed by the opposite parties in the Supreme Court, the complainants have already received a sum of Rs.4.25 lakh deposited by the opposite parties in the criminal court. In our view the matter requires further consideration to the extent of payment of Rs.4.25 lakhs which was to be paid as final installment. However, the finding of the State Commission so far as it had allowed the claim of the complainants to the extent of Rs.1.25 lakh based on the promissory note and Rs.4.25 lakhs on account of cheque is upheld. The State Commission also needs to consider the question of joint and several liability of the two respondents because learned counsel for the respondent no.2 states that the entire responsibility was that of the respondent no.1 who has since died and respondent no. 2 has not inherited any tangible assets from him. 5. In the result, the appeal is partly allowed and the impugned order so far it has not allowed the claim of Rs.4.25 lakh on reading of Exhibit P-14 is hereby set aside while the rest of the order
..7.. is upheld. The matter is remitted back to the State Commission for deciding the limited issue in regard to the payment of the balance amount of Rs.4.25 lakh by the respondents and interest, if any, payable thereon to the complainants. The First Appeal stands disposed of. The parties are directed to appear before the State Commission on 15.04.10 for seeking further directions in the matter. We request the State Commission to dispose of the complaint on the above limited aspect expeditiously preferably within a period of three months. 6. Before parting with the matter, this Commission is pained to notice the manner in which the judicial record of the State Commission is being handled/maintained. On a report being called from the State Commission in that behalf this Commission was informed as under:- “The former President of this Commission took the entire case file in Original Petition 243/92 for pronouncing orders. But he returned the case file without pronouncing any order after considerable time, along with other case records. Subsequently this Commission reheard the case. But by that time a few records were found missing and those records were substituted with the documents produced by the parties in the case. It appears that the concerned staff member did not verify the records when the same were returned. ..8.. While copying the pronounced orders the Confidential Assistants by mistake missed a few pages of the pleadings portion and later full text of the orders were sent to all parties concerned. Simultaneously the missing of records was enquired into. The same were located and all records has been forwarded to the National Consumer Disputes Redressal Commission as per this office letter dated 29.10.08.” We would like the present President of the State Commission to ensure that reoccurrence of such lapses and omission is avoided in future.
......................JR.C. JAINPRESIDING MEMBER
......................ANUPAM DASGUPTAMEMBER | | 
