STATE CONSUMER DISPUTES REDRESSAL COMMISSION

UNION TERRITORY, CHANDIGARH

Appeal No.1732  of 2008

Sh.M.M.Gupta and Others through Sh.M.M.Gupta, resident of H.No.1437, Sector 15, Panchkula.

….…Appellant

V E R S U S

1.     M/s Ashirwad Motor Financiers, Reg. Off. 45, Sector 8, Panchkula.

2.     M/s Ashirwad Motor Financiers, H.O. SCO 841-42 (Ist Floor), Sector 22-A, Chandigarh

3.     M/s Vijay Finance Corporation, Regd.Off. 324-A, Sector 7, Panchkula.

4.     M/s Vijay Finance Corporation, H.O.SCO No.841-42 (Ist Floor), Sector 22-A, Chandigarh

5.     Sh. Alokeshwar Tuli, Manager/Partner M/s Ashirwad Motor Financiers and M/s Vijay Finance Corporation, Flat No.38, Society GH-38, Sector 20, Panchkula.

6.      Sh. Alokeshwar Tuli, # 221, Industrial Area, Phase-I,         Chandigarh.

                                        ..…Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

ARGUED BY: Sh. Neeraj Sharma, Advocate for the appellant along with

                        Sh. M. M. Gupta, appellant in person.

                        Sh. Ramesh Kumar Bamal, Advocate for the respondents.

MRS. NEENA SANDHU, MEMBER.

1.                     This appeal has been filed by the complainants against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 19.8.2008 passed in complaint case No.322 of 2007 vide which the learned District Forum has dismissed the complaint case.

2.                     Briefly stated the case of the complainant is that he invested a sum of Rs.1,20,000/- in his own name and also deposited the following amount on behalf of his relatives with the OPs :-

3.                     As per the complainant, the OPs had promised to pay interest @ 18% p.a. at monthly intervals on the aforesaid amounts and the deposited amount was to be returned on demand. It was next averred that the OPs paid the said rate of interest only up to December, 2001 and thereafter, the complainant accepted the rate of interest @15% below the promised amount on the assurance that OPs would make the payment of remaining balance as soon as possible but they failed to make the payment of interest for the period between October, 2002 till date. The complainant, it was further averred, served a legal notice upon the OPs, who issued him cheques (C-9 to C-11) for Rs.8000/-, Rs.9000/- and Rs.8000/-  respectively with the understanding that the amounts shall be paid in cash and the original cheques would be returned. As per the complainant, the payments against the said cheques were made by OPs and the original were returned to them. It was next averred in the complaint that the principal amounts against receipts No.107,146 and 147 were paid by OPs from 28.02.05 to 26.03.06 without interest.  Alleging non payment of Rs.1,20,000/- and remaining amount due towards them along with promised rate of interest by the OPs as deficiency in service and unfair trade practice on their part, the complainant prayed for dismissal of the complaint.

4.                     OP filed written statement and took the preliminary objections regarding commercial activity and the complaint being barred by limitation. It was pleaded that OP-6 took a loan amount of Rs.1,20,000/- from the complainant in the year 2000 and the same was to be repaid in 24 monthly installment with interest @10% p.a.. It was next stated that OP-6 accordingly issued postdated cheque and the complainant used to get the monthly installment from OP No.6. As per OPs, the entire payment had been repaid in the year 2002 and nothing was due and payable by OP-6.  It was denied that the rate of interest was settled @18% per annum and paid less @15% p.a. up to September, 2002. Pleading no deficiency in service on their and that the entire payment had been made to the complainant in the year 2002 and nothing was paid in the years 2005 and 2006, OPs prayed for dismissal of the complainant.

5.                     The learned District Forum, in its analysis of the complaint has firstly recorded in the impugned order that the present complaint was filed on 25.4.2007 i.e. beyond the period of two years and thus, the same was barred by limitation. As regards the contention of the complainant that he had invested various amounts on behalf of his relatives on the same terms and conditions, the learned District Forum observed that those amounts were also invested in the year 1994 in the names of Om Sahai, Kusum Sahai and others and none of them had been joined as party to the complaint case.  In view of the learned District Forum, the persons Om Sahai and others were deemed to be the owners of that amount, which had been invested in their names. As per the learned District Forum, the Complainant could not claim ownership or title to the said amounts In view of the Benami Transactions Act. It was recorded that the complaint regarding deficiency in service with respect to those amounts could only be filed by Om Sahai and others and not by the Complainant as the complainant had no power of attorney in his name.  Finally, dealing with the preliminary objection, as regards the complaint being barred by limitation, the learned District Forum observed that as per the record, the complaint with respect to the amount invested in the names of Om Sahai and others was also barred by time as the amounts were invested in the year 1994 and OPs had issued three cheques dated 10.8.2004, 22.9.2004 and 23.10.2004 (C-9 to C-11) regarding payment of those amounts. Thus, in the view of learned District Forum, the present complaint on the basis of those cheques was also barred by time, because the amount could only be claimed within two years of 23.10.2004. As regards the contention of complainant that certain payments towards interest were made by OPs from 28.2.2005 to 26.3.2006 with respect to the investments made in the name of Om Sahai and others, the learned District Forum observed that except than the receipts issued in his own name regarding the said amount, no documentary corroborative evidence had been placed on record by the complainant to suggest that from where the said amount was withdrawn and in which account the said amount was deposited on the said dates on which the payment of interest was alleged to had been made by the OPs. In the view of the learned District Forum, merely on the basis of self-serving statement of the Complainant, it could not be believed that any such payment towards interest was made by the OPs during the period from 28.2.2005 to 26.3.2006. The learned District Forum finding the complaint time barred and without merit, dismissed the same by leaving the parties to bear their own costs.

6.                     Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal seeking setting aside of impugned order and awarding relief as prayed for in his complaint. Record of complaint case was also summoned from the District Forum. Sh. Neeraj Sharma, Advocate appeared on behalf of the appellant/complainant along with Sh. M. M. Gupta, appellant in person whereas Sh. R. K. Bamal, Advocate appeared on behalf of the respondent/OP.

7.                     We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties. There are only three issues raised in the present appeal for our determination, which are, as under: -

(a)   Whether the complainant is a consumer qua OP?

(b)  Whether the complaint is hopelessly time barred?

(c)  Whether there is any deficiency in service on the part of OP?

8.                     As regards the first issue as regards the complaint being a consumer or not, the learned counsel for the respondent/OP placed reliance on the authority of Rajasthan State Commission rendered in the case of Krishna Kanwar (Smt.) Vs. Ahore Cooperative Marketing Society Ltd. & Anr, II (2009) CPJ 431 wherein it has been held that the relationship of complainant and Society is that of a debtor/creditor and the society by taking amount on interest is not a service provider to the complainant and the complainant is not a consumer qua the Society. In the present case also, the complainant is a debtor and the OP is a creditor and as such, the ratio of the authority relied upon by the OP is fully applicable to the case in hand. Accordingly, in our view, the complainant cannot be said to be a consumer qua the OP and in case certain amount is claimed by the complainant then, he should file a Civil suit in the appropriate Court. Thus, we are in consonance with the view held by the learned District Forum that the  complainant is not a consumer and this preliminary objection has been rightly decided in favour of the OP.

9.                     Now coming to the second limb of argument as regards the complaint being hopelessly barred by limitation, we are again in consonance with the view held by the learned District Forum that because the amounts were invested in the year 1994 and OPs had issued three cheques dated 10.8.2004, 22.9.2004 and 23.10.2004 (C-9 to C-11) regarding payment of those amounts, the complaint on the basis of those cheques was hopelessly time barred. In our view, the said amount could only be claimed within two years of 23.10.2004 and thus, this objection raised by the OPs was also rightly decided by the learned District Forum in favour of OPs.

10.                   Now coming to the third and the last issue as regards deficiency in service, if any, on the part of OP, we again go by the view expressed by the learned District Forum that nothing has been brought on record by way of documentary evidence by the complainant to prove the contention of the complainant that certain payments towards interest were made by OPs from 28.2.2005 to 26.3.2006 with respect to the investments made in the name of Om Sahai and others, In our considered view and as also been held by the learned District Forum, there is no evidence, much less cogent evidence, to suggest, when the amounts, as alleged, were withdrawn and in which account the said amounts were deposited on the said dates on which the payment of interest was alleged to had been made by the OPs. In this view of the matter, it could not be believed, merely on the basis of self-serving statement of the Complainant that any such payment towards interest was made by the OPs during the period from 28.2.2005 to 26.3.2006. In view of the foregoing discussion, we are of the considered view that the complainant is not a consumer qua the OP as it appears from the transactions between the parties that as though there is a relationship of debtor/creditor, the OP-financier by taking amount on interest not becomes service provider qua the complainant. Hence, this appeal is not maintainable.

11.                   Consequently, finding no merit in the appeal, the same is dismissed and the order of learned District Forum is upheld being just, fair and legal. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.

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

Pronounced.

11^th August, 2010.

[JUSTICE PRITAM PAL]

PRESIDENT

[MRS. NEENA SANDHU]

MEMBER

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