DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Execution Case No.855/2005
IN
C.C. No. 68/93 & 69/93
SHRI G.D. RENWAL
S/O LATE SHRI M.D. RENWAL,
R/O Flat No. 56-A, SURYA APARTMENTS (POCKET-A 11)
KALKAJI EXTN.,
NEW DELHI-110019.
….Complainant/ DH
Versus
MR. MANJEET SINGH BAJAJ,
DIRECTOR
M/S CHOJI PRETAM CHITS (P), LTD.,
2ND-1-38, CENTRAL MARKET,
LAJPAT NAGAR, NEW DELHI.
….Opposite Party/ JD
Date of Institution : 25.08.2005 Date of Order : 07.10.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
The present execution application is the outcome of the order dated 03.07.1996 passed in the case No. 68/93 and 69/93 tilted as G.D. Renwal vs. Manjeet Singh Bajaj Director, M/s Choji Pretam Chits Pvt. Ltd. & others.
In order to decide the execution application effectively, it is necessary to advert to the facts of the main case as borne out from the order dated 03.07.1996. In complaint case No. 68/93, the complainant/ DH had sought direction to OP to pay Rs. 25,320/- along with interest from October, 1991 and compensation of Rs. 40,000/- while in complaint bearing No. 69/93 a direction for payment of Rs. 38,000/- with interest from July, 1992 along with compensation of Rs. 40,000/- was made.
It was not disputed between the parties that the complainant/ DH “had become subscriber of OP-1 being Chit No. CPC 13/23 of face value of Rs. 40,000/- and in case No. 69/93 & CPC 11/39 in Case No. 68/93 the face value of the chit was Rs. 60,000/-.” The complainant/ DH claimed to have paid 37 out of 40 installments in case No. 68/93 and 38 out of 40 installments in case No. 69/93 through one Shri S.P. Paul Singh Sondhi and some payments were made in cash. The complainant/ DH alleged that he was successful in the bid held in the month of September, 1991 in respect of CPC 11/39 and the OP had issued three cheques dated 25.04.1992, 23.05.1992 and 06.06.1992 for Rs. 15,000/- each but all of them dishonoured but, however, the OP made payment of first bounced cheque on 15.05.1992 but the remaining amount was not paid. It was alleged that chit No. 13/23 had become overdue on 17.07.1992 and the complainant had become entitled to get Rs. 38,000/- after deduction of Rs. 2,000/- as 5% commission from the OP but the OP had failed to pay the same.
OP in their reply inter-alia pleaded that amount due to the complainant in both the chits was calculated at Rs. 44,183/- before the Registrar, Chit Funds which amount had already been paid to the complainant. Copy of the letter addressed to the Registrar, Chit Funds dated 25.09.1992 was filed showing that the total amount deposited by the complainant in CPC 11/39 was Rs. 29,818/- and in CPC 13/23 was Rs. 19,365/- making a total of Rs. 49,183/- after deducting Rs.5,000/- as 5% commission the amount payable was worked out at Rs. 44,183/-. It was mentioned on behalf of OPs that Rs. 15,000/- was paid vide cheque dated 28.04.1992, Rs. 15,000/- by cheque dated 13.09.1992 and Rs. 14183/- vide cheque dated 28.09.1992.
Complainant failed to produce receipts of payments made by him to the OP on the ground that some of the receipts had not been issued and the payment was made through one Shri S.P. Paul Singh Sondhi. However, maintenance of the accounts in due course of their business was not denied by the OPs. The relevant portion/ para of the order dated 03.07.1996 reads as under:-
“Although the OP claims to have informed the Registrar of Chit Fund that out of the total amount of Rs. 49,183/- deposited by the complainant in the two chits after deduction of 5% commission Rs. 44,183/- was payable which was paid through two cheques each of Rs. 15,000/- dated 28.04.92 and 13.09.92 and one for Rs. 14,183/- dated 29.09.92, the complainant has alleged that post dated cheque of 25.04.92, 23.05.92 and 06.06.92 each of Rs. 15,000/- had been issued but dishonoured and payment of first bounced cheque for Rs. 15,000/- was made on 15.05.92. The correctness of this claim has not been specifically denied by the OP in their written statement. The OP has also not made any claim to the effect that the cheques of 28.04.92, 13.07.92 and 28.09.92 had been encashed or has any proof of payment of any amount other than the sum of Rs. 15,000/- admitted by the complainant has been given.”
OPs were directed to refund the amount received from the complainant along with interest @ 18% from the date of receipt of each sum till payment after deducting Rs. 15,000/- admitted to have been paid to the complainant along with Rs. 2,000/-in each of the cases as cost/ compensation.
The parties filed four appeals against the order dated 03.07.1996 before the Delhi State Commission. The State Commission disposed off all appeals vide order dated 25.10.2004. The relevant portion/ para of order dated 25.10.2004 reads as under:-
“The nature of dispute arising from the aforesaid conspectus of facts shows that the accounts were being maintained by the respondent in due course of their business, which were not produced by the respondent before the District Forum. There are allegations that appellant was in default and therefore could not have taken the plea that he was declared successful in bid. However in the absence of documentary evidence the District Forum found itself unable to record finding as to the proof of installments paid by the appellant or the exact amount paid by him through two chits. The counsel for the respondent contended and states that the respondent has already paid Rs. 70,000/- to the appellant out of which Rs. 55,000/- before M.M. in the proceedings u/s 138 of the Negotiable Instrument Act and Rs. 15,000/- by way of pay order. Consumer disputes are not such disputes which require to be determined by way of evidence to be led by the parties for ascertaining the facts in such manner as are decided through civil suits. These are disputes that arise out of either unfair trade practice or deficiency in service for which the consumer is awarded a compensation for loss and for mental agony and harassment.
Aforesaid facts do not call for any interference as in the impugned order the relief granted to the appellant directing the respondent to refund the amount received by them from the complainant appears to be reasonable as per principle of governing the consumer disputes and at the same time we feel that rate of interest awarded by the District Forum is on the higher side as rate of interest should be awarded which is normally the bank rate not at the rate the money lenders charge. In the result, we deem that 12% per annum rate of interest shall be payable by the respondent on the balance amount.
However, to cut the controversy short, by deciding the dispute on the pattern of consumer disputes we deem that compensation of Rs. 15,000/- on account of mental agony and harassment on account of deficiency in service would meet the ends of justice.”
In view of the above facts, the State Commission did not interfere in the order dated 03.07.1996 passed by our predecessors. The interest was, however, reduced to 12% per annum on the balance amount.
Thereafter vide order dated 04.11.2006 in (execution) case No. 855/2005 our predecessors considered the order dated 25.10.2004 passed by the Delhi State Commission and passed the order. The relevant portion of the order dated 04.11.2006 reads as under:-
“The order of the Hon’ble State Commission has to be interpreted in view of the payments already received by the DH in the proceedings u/s 138 of the Negotiable Instruments Act in Dec., 1999. As already discussed the DH has received a total sum of Rs. 70,000/- from the JD against the sum of Rs.44,183/- paid against the two chits and Rs. 20,000/- against the two receipted personal loans of Rs. 10,000/- each. It is pertinent to note here that cheque dated 6.6.92 which was also basis for the compliant u/s 138 of the Negotiable Instruments Act was given to the DH by the JD towards repayment of Rs. 44,183/-. This was one of the 3 postdated cheques given by the JD to the DH. Against one bounced cheques Rs. 15,000/- were paid in cash on 15.5.1992. Against the second cheque the JD has already paid to the DH the sum of Rs. 15,000/-. In a compromise both the sides have to give and take. Against the two bounced cheques of Rs. 15,000/- and Rs. 10,000/- totaling a sum of Rs. 25,000/- the JD would not have paid to the DH a sum of Rs. 55,000/-. Keeping in view these facts and circumstances of the case which have also been mentioned by the Hon’ble State Commission in its judgment we are of the view that the Hon’ble State Commission settled the controversy between the parties by granting the DH a compensation of Rs. 15,000/-. This is a clear from the words, “however, to cut the controversy short, by deciding the dispute on the pattern of consumers disputes………” The order passed by this forum has merged into the order of the Hon’ble State Commission. Hence the JD is liable to pay to the DH only a sum of Rs. 15,000/-. A pay order for Rs. 15,000/- has already been given by the JD to the DH. However, the DH has not encashed the same. This pay order is dated 28.2.05. If the validity of this pay order has expired the JD shall issue a fresh pay order to the DH on return of the previous pay order by the DH. The JD shall issue a fresh pay order to the DH within 15 days of the receipt of the previous pay order form the DH. The order under execution shall stand satisfied on payment of Rs.15,000/- by the JD to the DH as mentioned above. These proceedings are closed.”
Feeling dis-satisfied, the complainant/ DH herein filed FA No. 1316/2005 before the State Commission.
Vide order dated 13.03.2007, the State Commission observed that the learned predecessors of this Forum had wrongly interpreted the order dated 25.10.2004 by taking the viewz that the amount of compensation of Rs. 15,000/- on account of mental agony and harassment awarded by the commission was towards full and final settlement whereas the fact remains that the commission had awarded the same only on account of mental agony and harassment whereas the interest awarded by the District Forum was reduced to 12%.
Accordingly order dated 04.11.2006 was set aside and the case was sent back to the Forum for deciding it afresh by deeming that amount of Rs. 15,000/- was over and above the amount which the complainant/ DH was entitled to including the interest awarded @ 12%.
OP filed a record of account on 02.12.2009. In the statement, OP claimed that the complainant had to refund Rs. 59,382/- plus further interest to the OP.
Complainant filed objection to this account on 21.07.2010 wherein the complainant showed Rs. 96,510/- recoverable from the OPs after deducting Rs. 15,000/- paid by OP to him in Patiala House Court in 138 NI Act on 06.12.1999.
Latest statement of account of payment made by the OP was filed by the complainant on 06.05.2011 wherein he again prayed to issue direction to the OP to pay the decreetal amount of Rs. 96,510/- (to be revised on the date of final settlement of the case).
On 09.08.2011, the OP also filed the details of payment i.e. account statement. OP showed Rs. 77,197/- as recoverable amount from the complainant.
From the perusal of the order sheet dated 11.09.2012 recorded by our predecessors, it appears that on that date, separate statements of both the parties were recorded and they gave their figure of respective amounts paid/ to be recovered.
As per the statement made by the complainant, he had received Rs. 30,000/- from the OP by way of pay order dated 13.07.1992 for Rs. 15,000/- and Rs. 15,000/- through the Court of the M.M. in response to 138 NI Act case for bouncing cheques Rs. 15,000/- and the details of the rest of the amount alongwith interest dated 08.02.2010 were to be calculated again on the final decision of this court as per the annexure-A attached to his application dated 09.11.2011. As per the statement made by the OP Shri Manjeet Singh had given Rs. 1,00,000/-to the complainant in the following manner Rs. 15,000/- on 15.05.1992, Rs. 15,000/- on 13.07.1992, Rs. 55,000/- on 06.12.1999, Rs. 15,000/- on 28.02.2005 for chit for the amount of Rs. 44,183/-.
Complainant has again filed the details of the account on 01.04.2014. He has shown Rs. 30,000/- to have been received by him against the claim of OP of Rs. 1,00,000/-.
Now, we discuss the order passed by the Metropolitan Magistrate, New Delhi in 138 NI Act proceedings. The complaint was dismissed as withdrawn on 06.12.1999 in view of the settlement arrived at between the parties i.e. complainant and OPs.
As per the statement made by the complainant in those proceedings, he had received a bank draft of Rs. 35,000/- along with cash of Rs. 10,000/- towards the disputed cheque amount and that he had already received Rs. 10,000/- on 31.11.1999. Therefore vide that statement complainant had received Rs. 55,000/- towards the disputed cheque from the OP.
We do not know whether the disputed cheque involved in that case was the one which has been shown as bounced on 15.05.1992 in the present complaint.
The net result of the above discussion is that the amount to be recovered from the OP by the complainant or the amount in excess, if any, paid by the OP to the complainant is not certain and is a matter of someone’s guess from the very beginning. Unless and until the amount is calculated in a legal manner, no specific order can be passed. In order to calculate the exact amount to be paid to the complainant or to be refunded to the OP, the parties have to lead their respective evidence and adduce evidence which would also require the cross examination of each other’s witnesses. Production of account books will also be required. This cannot be done in the present proceedings which have to be decided in summary manner.
Therefore, in our considered opinion this Forum is not in a position to decide the matter. Therefore, parties are advised to approach the appropriate Forum to get the controversy decided, if they are so advised.
Execution application stands disposed of accordingly.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 07.10.17.
