Haryana

StateCommission

A/305/2015

NITIN YADAV - Complainant(s)

Versus

PAWAN KUMAR AND OTHERS - Opp.Party(s)

B.K.BAGRI

06 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

First Appeal No.305 of 2015

Date of Institution: 31.03.2015

                                                          Date of Decision: 06.10.2015

 

Nitin Yadav S/o Shri Vijender, Resident of House No.33, Gali No.2, Shakti Nagar, Rewari.

     …..Appellant

                                                Versus

 

1. Pawan Singh S/o Shri Kuldeep Singh, Resident of village Naichana, Tehsil and District Rewari.
2. Rupesh Sharma S/o Shri Kishore Kumar Sharma, MD Shri Om Sai Nath Resident of E/1/403 Bhumi Park Phase No.1, Malad West Mumbai.
3. Amit Sharma S/o Shri Kishore Kumar, Chairman Shri Om Sai Nath Car on Rent Ltd., resident of E/1/403 Bhumi Park Phase No.1, Malad West Mumbai 400095 Presently at Tihar Jail, New Delhi.
4. M/s Shri Om Sai Nath Car on Rent Ltd. Through Managing Director Register Office 14 Awn Apartment Chhatapati Shivaji Near Santoshi Mata Ka Mandir Dawnukar Wardi Kandiwali (W) Mumbai.

         …..Respondents

 

CORAM:   Mr. R.K.Bishnoi, Judicial Member.
                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.B.K.Bagri, Advocate counsel for the Appellant.

                   Mr.K.L.Saini, Advocate counsel for the respondents.

                  

                                      O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:

 

It was alleged by the complainant that Opposite Parties (O.Ps.) started a company under the name and style of Shri Om Sai Nath and assured the people that if anyone would deposit Rs.1,40,000/- then he would get commission through cheque regularly for 60 months and agreement would be in writing. They were running another scheme as silver card report membership which should be obtained after depositing Rs.1,70,000/-.  If the amount would be paid at one time discount of Rs.21,000/- would be given and commission of Rs.9000/- would be  given for 60 months.  O.P. Nos.1 to 3 were running company in shop No.43 Brass market and O.P.No.3 was working as manager.  In the month of November he deposited Rs.1,40,000/- vide cheque No.019653 through O.P.No.3 as per his allurement mentioned above and receipt was also issued to this effect.  It was told by O.P.No.4 that he would receive agreement and advance cheque within one week. When such documents were not received he contracted them, but, no satisfactory reply was given.  On 22.01.2009 he received written agreement dated 03.11.2009 which was incomplete.  When enquired it was told by O.P.No.3 that amount would come to his account automatically.  Lateron O.P.No.4 stated that it was not his responsibility to pay the amount.  Lateron office was closed and it came to his  notice that O.P.No.3 i.e. Nitin Kumar was residing in house no.33.  When he went there it was told that he was in Tihar Jail.  He was asked to pay Rs.5000/- to Sh.A.K.Mehra Advocate and Nitin told him that amount would be paid within  one month. Even thereafter no amount was paid.  In this way fraud was played with him and his amount was usurped by the O.Ps.  Fraud was played with him and O.Ps. be directed to pay Rs.1,40,000/- alongwith interest @ 18% and Rs.20,000/- for harassment etc. 

2.      Appellant-O.P.No.3 filed reply controverting his averments and alleged that neither he assured nor he allured complainant to enter into an agreement with O.P.No.4. though O.P.Nos.1,2 and 4 were running business in shop No.43 Brass Market, Rewari, but, he never worked as Manager with them.  He was not having any concern with those persons and complaint was filed against him just for harassment.  Objections about maintainability of complaint, relationship of consumer and estoppal etc. were also raised and requested to dismiss the complaint.

3.      O.P.No.4 was given up and O.P.Nos.1 and 2 were proceeded against ex parte.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Rewari (In short “District Forum”) allowed the complaint  vide impugned order dated 18.02.2015 and directed as under:-

“Resultantly, in view of the above discussion and for the foregoing reasons, the complaint is allowed directing the opposite parties No.1 to 3 to refund Rs.1,40,000/- to the complainant with  punitive interest @ 12% from the date of deposits till payment maximum within a period of one month from the date of receipt of the copy of this order. Since the complainant has suffered a lot, he is awarded compensation to the tune of Rs.30,000/- and Rs.5500/- as litigation charges against the opposite parties Nop.1 to 3 to be paid within the above stipulated period. Ordered accordingly.”

5.      Feeling aggrieved therefrom, appellant-O.P No.3. has preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for the appellant vehemently argued that    it is alleged in complaint that fraud was played with him. Criminal cases are also registered about deposits which is clear from the perusal of copy of FIR No.179 and 180 dated 16.12.2009.  The matter is of civil nature and consumer forum has no jurisdiction to adjudicate upon this dispute. 

8.      These arguments are of no avail.  As per averments raised in the complaint and agreement Ex.C-2 it is clear that O.Ps. assured to pay Rs.10908/- per month against swiss gold card.  As per this agreement amount was received from complainant.  In this way O.Ps. were supposed to render service as per that agreement and Consumer Forum can see whether there is any deficiency in service or not.  The complaint cannot be rejected on the basis of this ground. 

9.      Learned counsel for the appellant further argued that learned District forum did not get his signatures compared on receipt Ex.C-3 so it cannot be presumed that he received Rs.1,40,000/- on behalf of O.P. Nos.1, 2 and 4 as the manager.  He himself was cheated by other O.Ps.  So he is not liable to pay any amount.  In support of his arguments he placed reliance upon the opinion of Hon’ble Supreme Court expressed in Bhagwati Vanaspati Traders Vs. Senior superintendent of Post Officers, Meerut,  (2015) I Supreme Court Cases 617. 

10.    These arguments are also of no avail.  It is specifically alleged by complainant in para No.4 of the complaint that O.P.No.3 received cheque of Rs.1,40,000/- from him on 02.11.2009.  Appellant/O.P.No.3 did not deny this fact specifically in it’s reply.  It was simply alleged that averments raised in this para were wrong and he was not having any concern with the same.  Complainant also averred about this fact in his affidavit Ex.C-1.  O.P. filed affidavit Ex.R-1 in rebuttal thereof.  It is no where alleged in this affidavit that he did not receive any amount from the complainant.  He only alleged that he did not act as Manager. In this way when this fact is not specifically denied by O.P.No.3 it amounts to admission.  It is well settled proposition of law that if any fact is not specifically denied then it amounts to admission.  It was the duty of the appellant/O.P.No.3 to specifically allege that he did not receive any amount by way of cheque as alleged by complainant, which he has not.  In this way it can be presumed that he received the amount as manager for rendering service as per agreement and complainant is consumer.  Learned District Forum rightly came to the conclusion that he is also liable to pay Rs.1,40,000/- alongwith other O.Ps.  Impugned order is well reasoned based on law and facts and cannot be disturbed.

11.    Appellant cannot derive any benefit from the cited case law because that is based on altogether different facts.  In that case there was dispute about NSC issued by post office in favour of the company. Resultantly appeal fails and the same is hereby dismissed.

 

October 06th, 2015     Urvashi Agnihotri         R.K.Bishnoi                                               Member                        Judicial Member                                       Addl. Bench                  Addl.Bench                 

S.K.