FA   790/2008 against C. C. No. 30/2008 on the file of the District Forum II, Tirupathi

Between :

D. V. S. Phanindhra, S/o Dhara Subramanyam,

Hindu, aged 23 years, Flat No.401, 3^rd floor,

Lakshmi Apartments,. Prasanthi Nagar,

Chittoor District                                             … Appellant/complainant

And

1.                  K. Babu, S/o not known , Hindu

Aged about 50 years

Proprietor of New Soft, having shop at

X O – Tech Computer Center

At 18-1-18/3A, Ground Floor

Dwaraka Nagar, K. T. Road, Tirupathi.

2.                  The Branch Manager, United Bank of India,

Balaji Nagar Branch, 164, Prakasam Road,

Tirupathi.                           .. Respondents/Opp. Parties.

Counsel for the Appellant            :           M/s. M. Haribabu.

Counsel for the Respondents    :           Mr. K. Jawahar for R-1.

                                                                        R2 served.

Coram           ;           Sri Syed Abdullah              …        Hon’ble Member

And

Sri R. Lakshminarasimha Rao…      Hon’ble Member

Tuesday, the Twenty Seventh Day of July, Two Thousand Ten

Oral Order     :           ( As per Sri Syed Abdullah,  Hon’ble Member )

*******

The appellant is the unsuccessful complainant  in CC 30/2008 before the District Forum II, Tirupathi and on the dismissal of the complaint, this appeal is filed questioning that the order is erroneous  both on question of fact and law. 

The facts of the case as set out in the complaint are that the complainant, who is  a B-Tech student of Siddartha Engineering College, Puttur, approached second opposite party  for financial assistance  for prosecuting  his higher studies and to purchase a computer.  The second opposite party  sanctioned loan for Rs.45,000/-  under loan Account Bearing no.  UEL 1578. The loan is payable with interest at 9% pa  out of the said loan a sum of Rs.20,000/- was given to meet educational fees.  The remaining amount of Rs.25,000/- was issued in the form  of pay order bearing  No. 328688 dated 14.09.2005  in the name of the first opposite party for supply of Intel Computer  worth Rs.30,000/- .  The complainant had already paid Rs.5000/- towards advance payment .  So pay order was intended for the remaining amount of Rs.25,000/-. After receiving the said pay order, the first opposite party failed to supply computer as a result of which he suffered in prosecuting his studies.  The first opposite party had closed his shop situate at Gandhi Road so he could not contact him.  Further, after ascertaining his address, the complainant got issued a legal notice on 09.01.2008 requiring him to supply the computer or to refund the amount with interest thereon.  The first opposite party failed to comply with the demand. The act or omission amounts to deficiency in service and unfair trade practice.

The opposite parties 1 and 2 resisted it  filing separate versions by denying the allegations that the complainant filed the case by suppressing real facts. The complainant is a belated one  and this Forum has no jurisdiction  to entertain the matter.  The alleged loan amount was paid  on 14.09.2005.  The complaint was filed in the year 2008 after lapse  of 3 years.  The first opposite part had provided a computer to the complainant  on receipt of payment of Rs.25,000/- and that the complainant was duly satisfied with the computer supplied.  The second opposite party had already closed his loan account and thereafter a fresh loan was also applied for by the complainant.  As such, the complainant is not entitled for the relief as claimed for. 

The second opposite party’s  stand is that under financial assistance scheme, the second opposite party  had sanctioned loan under loan Account No UEL 1578 on fulfilling formalities.  A pay order dated 14.09.2005  was issued for Rs.25,000/- in favour M/s. New Soft as per the written request  of the first opposite party basing on the quotation produced by the complainant.  The pay order was realized by the first opposite party on 15.09.2005.  The second opposite party  had furnished the information under Right to Information Act.  The complaint is barred by limitation.  The loan account is not closed and the same still exists as per the records.  The second opposite party is not a proper party. The complaint is filed to have wrongful gain. 

The complainant filed Ex. A-1 to A-3 along with his affidavit in support of his claim.  The first opposite party field its affidavit.  So also, the Senior Manager of the second opposite party filed affidavit along with Ex. B-1 to B-4. 

The District Forum had adjudicated  the dispute  on three aspects

(1)                 whether there is any deficiency in service on the part of the first opposite party towards the complainant ?

(2)                 whether the complaint is barred by limitation ?

(3)                 whether the complainant is entitled to the reliefs as prayed for ?

After going through the evidence on record, the District Forum came to the conclusion that the complainant failed to establish that the first opposite parties   have not  committed any deficiency in service.  Apart from it, the complaint is barred by limitation as it was filed beyond the period of limitation.  The contention that the cause of action continues till delivery of the computer by the opposite party is untenable. 

Point for consideration is, whether  the impugned order suffers from any factual and legal infirmity ?

 The learned counsel for the appellant contended that there is no dispute  with regard to payment of the amount by the second opposite party to the first opposite party and in such case the burden lies upon the  first opposite party to prove that he had supplied or  delivered the computer but  even in the absence of any evidence the District Forum failed to decide th issue in proper perspecstive.   It is also the contention that the cause of action continues  where there is an obligation on the part of the opposite parties to fulfill its commitment.

We have gone through the documentary evidence, Ex. A-1 to A-3 and Ex. B-1 to B-4 and on reappraisal of the evidence we have arrived at the following conclusions.

Undisputedly, the second opposite party bank had sanctioned loan to the complainant to a tune of Rs.45,000/- , out of which, Rs.20,000/- was given to him  for meeting educational fees and the remaining amount of Rs.25,000/- was given in the form of pay order in favour of New Soft Computer Company  towards cost of the computer  against the quotation filed by the complainant’s father and that the said pay order  was delivered to Sri Dhara Subrahmanyam, the father of the complainant and this is supported by the letter written by the complainant’s father  covered under Ex. B-1 dated 14.09.2005 along with Ex. B-2 which is  Estimation-cum-quotation dated 13.09.2005 issued by the New Soft Computer Company.  In pursuance of it,  the second opposite party bank issued pay order for Rs.25,000/- in favour of New Soft Computer Company for supply of the computer.  Ex. B-4  Loan Ledger Account shows that regular payment of instalments were paid  by the complainant right commencing from September, 2005 up to 31.12.2007. The complainant  has not filed affidavit of his father Sri D. Subarahmanyam.  In support of his contention that  after receipt of  the pay order  for Rs.25,000/-, the first opposite party did not supply and deliver the computer.  No prudent person would keep quite for a period of three years, when the supplier, ;i.e., 1^st opposite party  had not supplied the computer even though he had received  payment order for Rs.25,000/-. In case, the first opposite party had not supplied the computer one would report it to the banker for  non-supply of it and the Banker  could have taken immediate action.   But he continued  to repay monthly instalments  and he never bring it to the notice of 2^nd opposite party about the non-supply of it.   

                        While so, all of a sudden, on 09.01.2008 he got issued a legal notice covered by Ex. A-1 to the first opposite party informing him to proceed against the first opposite party for non-delivery of the computer. Ex. A-3 notice was also sent to the first opposite party stating that the company had changed its business address to escape its liability  and hat the computer was not supplied.  It is surprising  as to how the complainant could wait from 14.09.2005 up to 28.01.2008 without taking action  against the first opposite party for non-supply  of the computer  which is infact actually required in connection of his educational pursuit.   Merely because 1^st opposite party has not produced acknowledgement of delivery of the computer on receipt of payment order, it cannot be inferred that  the first opposite party  till this date  has not delivered it . The complaint has become stale and  barred by limitation as he failed to take action within time.   The complaint was filed on 25.02.2008, as such,  it is barred by limitation and it is liable to be dismissed.

The contention  that cause of action continues  in the present case is nothing but misconception.   Citations that have been referred to are not applicable to the facts of the case. Thus, both  on question of fact and law, the complaint is not maintainable and the District Forum has rightly dismissed the claim and there is no flaw or infirmity in the order for its interference. 

In the result, the appeal is dismissed  but in the circumstances  of the case  each party to bear their own costs.

Sd/- MEMBER

                                                                                                                                                                  Sd/- MEMBER

                                                                                                                                                                  DATED : 26.07.2010.