MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the appellant/complainant against the order, dated 3.2.2011 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 221 of 2010 vide which, it dismissed the complaint.

2.         Briefly stated, the facts of the case, are that, the OP asked the complainant to purchase the Reliance Mutual Fund and demanded a sum of Rs.40,000/-, including commission charges, which was paid by him (complainant) vide cheque No.34321 dated 9.7.2008. It was stated that the mutual fund was to be purchased within 2 days of the encashment of the cheque.  It was further stated that neither the complainant received the Reliance Mutual Fund nor the OP returned the money, despite repeated requests.  The complainant sent a legal notice dated 21.1.2010 to the OP, but to no avail.  It was further stated that the aforesaid acts of the OP, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by the OP, wherein, it was stated that the complainant had issued the cheque of Rs.40,000/- towards the part payment of friendly loan of Rs.85,000/- taken by her. It was further stated that the complainant, thereafter, ignored the calls of the OP, and refused to make payment of rest of the amount of Rs.45,000/-. The OP sent notice dated 29.7.2009 to the complainant but she did not reply to the same. It was denied that the complainant had issued the cheque for the purchase of Reliance Mutual Fund or that the OP had misappropriated her funds.  Receipt of legal notice sent by the complainant was also denied.  All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OP, nor he indulged into unfair trade practice.

4.         The parties led evidence, in support of their case.

5.         The learned District Forum, dismissed the complaint, in the manner, referred to, in the opening para of this order.  

6.            Aggrieved by the order, passed by the learned District Forum, the appellant/complainant, filed the instant appeal.

7.         We have heard Sh.Arun Kumar, Advocate, for the appellant, Sh.Anil Kumar Gulati, respondent in person, and have perused the record, carefully.

8.         The learned Counsel for the appellant/complainant contended that the fabricated documents of the OP were taken to be genuine, by the District Forum, although no reasons was given, as to why the OP chose to send a letter under UPC. It was further contended that the learned District Forum failed to appreciate that the alleged loan was paid by the OP to the complainant, in cash and how the part payment thereof could be made by her (complainant) through cheque. It was further contended that the OP failed to produce the income tax returns to show the transaction in question regarding Rs.85,000/- in cash and having accepted a part payment through cheque. It was further contended that the order impugned, being illegal, be set aside.

9.         The Counsel for the respondent/OP contended that the complainant had been known to the OP since long and both were having good family relations. The complainant was in need of personal loan and she approached the OP with a request for lending Rs.85,000/- and considering their relations, the OP gave Rs.85,000/- to the complainant in good faith on 15.4.2008. It was further contended that the complainant had paid the amount of Rs.40,000/- through cheque No.34321 dated 9.7.2008 and after that payment, she ignored the calls of the OP and ultimately refused to make payment of rest of the amount. Therefore, the OP sent a notice dated 29.7.2009 to the complainant for the repayment of loan taken by her from him but she did not bother to reply to the same. It was further contended that for investing in any mutual fund, the complainant was required to sign the application form by accepting the terms and conditions of the same. If the complainant invested in any fund through the OP then she must have issued cheque favouring the company and not the OP. It was further contended that the complainant is an educated person and working with the Punjab National Bank. Therefore, the complainant was very well aware of the terms and conditions of investing in mutual funds. It was further contended that the learned District Forum passed the well reasoned order.  

10.       It is evident from Annexure C-1 that the complainant issued a cheque for Rs.40,000/- in the name of the OP, which according to her was for investment in the Reliance Mutual Fund. It may be stated her that in order to invest money in mutual funds, the complainant/appellant was required to sign the application form. As per the terms and conditions, of the blank application form (Annexure R-2), it is clear that complainant/applicant was required to make the payment through cheque favouring the scheme but she neither signed the application form, nor she issued the cheque in the name of the Reliance Mutual Fund. Therefore, in the absence of any evidence, it could not be believed that the money was paid by her to the OP for investment in the mutual fund. The OP also produced a letter Annexure R-1, which was sent to the complainant on 29.9.2009, vide which, he requested her to return the balance amount of Rs.45,000/- out of Rs.85,000/-, which she took as a friendly loan and promised to pay back the same. It is pertinent to mention here that this letter was sent to the complainant, much before the filing of the complaint on 7.4.2010. Thus, from this, letter, an inference can be easily drawn that the cheque worth Rs.40,000/-, issued in the name of the OP was not for the purchase of the mutual funds, but rather it was for the repayment of loan. Furthermore, the claim of the complainant that she had paid this cheque for the purchase of the mutual fund, is also falsified, because the complainant issued the cheque in the name of the OP on 9.7.2008, whereas, she sent a legal notice to the OP on 21.1.2010 i.e. after a delay of more than 1 ½ years. In our opinion, no prudent person will wait for such a long time, if she was not issued the mutual funds, for which, she had applied. This all seems to be a concocted story to save herself from the liability to repay the loan, which she had taken from the OP.

11.       From these facts, it has been established that the cheque issued by the complainant in the name of the OP, was not for the purchase of mutual funds, and as such, the complainant failed to prove that any services of the OP had been hired by her for consideration for the purchase of mutual fund. In this view of the matter, we are of the view that the complaint was not maintainable because the complainant did not fall within the definition of consumer qua the OP, as per Section 2(1)(d) of the Consumer Protection Act. 1986. The District Forum was right in holding so. The order of the District Forum, being legal and valid does not call for any interference. 

12.       In view of the above discussion, the appeal filed by the complainant is dismissed, being devoid of merit, and the order passed by the learned District Forum is upheld.

13.       The parties are left to bear their own costs.

14.            Copies of this order be sent to the parties, free of charge.           

Pronounced.                                                                        

9^th September, 2011