FA.No.94/2009  against  in C.C.No.97/2006, District Forum, Prakasam at Ongole.

Between:

1. Jaya Sandal Estates, Regd.Office

    At Inkollu, rep. by its

    Managing Partner K.Babu Rao,

    D.No.5-41,  Prakasam District.

2. K. Babu Rao, Managing Partner of

    Jaya Sandal Estates, aged about 52

     Years, Hindu, Business,

     College Road, Inkollu,

    Prakasam Dist.,                                                                            .Appellants/

                                                                                                Opp.parties.

And

Alapati Naga Srinivasa Rao, S/o.Nageswara

Rao, aged 40 years, Hindu, Business,

R/o.Chirala, rep. by SPA Agent,

Y.Madhana Sudhakara Krishna

S/o.late Phanibhushanachari,

Aged about 43 years, Goldsmith,

Near Pattabhi Sweets,

R/o.Chirala, Prakasam District.                                                      Respondent/

                                                                                                            Complainant

Counsel for the Appellant:                Mr.K.Naga Prasad.

Counsel for the Respondents.         Mr.M.Ramgopal Reddy       

                                    QUORUM:SRI SYED ABDULLAH, MEMBER.

AND

SRI K.SATYANAND, MEMBER.     

 MONDAY, THE THIRTY FIRST DAY OF AUGUST,

TWO THOUSAND NINE

ORAL ORDER: (Per Sri K.Satyanand, Hon'ble Member .)

                                                                                                                                                                                                                        ***

        This is an appeal filed by the opposite parties against whom the District Forum passed an order to pay the amount as claimed by the complainant.

        The facts of the case are as under:

        The opposite parties, a partnership firm and its managing partner floated a scheme under which they accepted investment by public in Rs.1,000/- bonds promising to grow sandal wood and red sandal trees and handover to each bond holder at the rate of one each of the two varieties against each bond of Rs.1000/- stipulating the period of maturity of 126 months.  The complainant claimed to have taken two such bonds dated 30-12-1999.  On the reverse of the bond pre-term redemption on suspicion at the end of 13 months, 37 months and 61 months with proceeds scaled down commiseratively was also promised.  Having grown suspicious, the complainant claimed to have approached the opposite parties in order to encash the bonds after 61 months and claimed Rs.3,000/- per each bond.  It is the complaint of the complainant that the opposite parties postponed and finally evaded to accede to his request.  Hence the complaint.

        The opposite parties filed common counter and asserted that the claim of the complainant was satisfied as far back as on 10-1-2001 under receipt though it was added that the complainant excused himself from surrendering the bonds stating that he left them at the house.  The earlier demands for return of discharged bonds were not complied with.  The opposite parties further averred that they realized the trick only after they received summons in the complaint and therefore, they without loosing any more time issued a legal notice calling upon the complainant to surrender the bonds lest face legal action on the ground of discharge of liability long back.  The opposite parties pressed for the dismissal of the complaint.

        In support of the case of the complainant, he examined P.W.1 (the G.P.A.) and 2 (the complainant) and marked documents as Exs.A1 to A3.  The opposite parties did filed the affidavit of opposite party No.2 and also filed Ex.B1 stated to be the receipt passed by the complainant bond holder dated 10-1-2001 and the copy of the legal notice allegedly given on behalf of the opposite parties to the complainant.

        It seems during the enquiry, the complainant filed an application to refer the  signature on Ex.B1 to a handwriting expert.  Though it was allowed, further steps were abandoned.

        The opposite parties also filed a petition to cross-examine P.Ws.1 and 2 and the some other person.  It appears that the District Forum dismissed the said petition.

        Eventually on a consideration of the evidence adduced on either side, the District Forum disbelieved Ex.B1 receipt resorting to ocular comparison of the signature on Ex.B1 with the signature of the executant of G.P.A. and the signature of the complainant himself on his deposition as P.W.2.  It also remarked that when the complainant disputed signature on Ex.B1 the burden of proving the discharge through Ex.B1 squarely lies on the opposite parties who filed the discharge voucher and consequently upheld the claim and passed the order under appeal against the opposite parties.

         In this appeal, the opposite parties assailed the order in question on the following among other grounds.

        The District Forum went wrong in evaluation the evidence assuming the role of an expert.  It failed to see that the complainant failed to take steps to send Ex.B1 to handwriting expert.

        Heard the counsel on both sides. 

        The points that arise for consideration is whether the order of the District Forum suffers from any illegality or irregularity or infirmity?

        The basic facts are not in dispute.  The complainant invested money and obtained bonds issued by the opposite parties by virtue of which act, they answer the description of a financial service provider making the complainant in in turn a consumer within the meaning of C.P.Act.  As service provider, the opposite parties, are under an obligation to honour and do according to the terms set out on the reverse of the bonds  Exs.A1 and A2.  The moment the investor grows suspicious he gets a right to encash the bonds.  It was how the complainant too demanded encashment.  Answering the claim the opposite parties pleaded discharge under Ex.B1.  Ex.B2 legal notice has no probative value as it was admittedly issued after receiving notices in the consumer complaint. Ex.B1 was dated 10-1-2001.  There is an important circumstance that casts a heavy doubt on the story of discharge propounded by the opposite parties especially when the complainant (P.W.2) stated on oath that Ex.B1 was false.  The term on reverse of the bond clearly dictate that the encashment has to be effected on the surrender of the bond.  It is unimaginable how a businessman would part with an amount without the compliance of an essential formality.  This suspicious circumstance is all the more compounded by the lack of proof of intermittent demands for return of the bonds referred to in Ex.B2 which in itself has all the sings of an after thought.

        The opposite parties tried to take some advantage of two circumstances believing that they approximate to the weak points of the complainant. They tried to contend that the complainant rolled back after taking initiative to refer Ex.B1 to expert and therefore an adverse inference has to be taken against him.  This amounts to looking at things upside down.  The initial burden of proving the genuineness of the complainant’s signature on Ex.B1 in the force of a denial by the complainant squarely rests on the part relying upon Ex.B1 to prove discharge.  Perhaps realizing this position of law in his favour, the complainant might have backed out from such exercise.

        Similarly the insistence upon the so called deprivation of an opportunity to them to cross examine P.W.1 and 2 is equally untenable as recourse cross examination in Consumer Forum is guided by the dicta contained in J.J.Merchant’s case before the Hon’ble Supreme Court and many more in that row.  No body prevented him from serving questions of  cross examination as commended by the Hon’ble Supreme Court.  Thus the lapses and infirmities in the evidence of the opposite parties unmistakably suggest that the discharge pleaded remained disproved.     For the reasons stated above, we do not see any merits in the appeal.

        Accordingly the appeal is dismissed with costs in a sum of Rs.1,000/-.  The opposite parties are allowed a time of six weeks to comply with the orders of the District Forum and also to pay the costs imposed by this order.

MEMBER.           

                                                                                      MEMBER

                                                                                   Dated 31-8-2009