Karnataka

Bidar

CC/25/2014

ANIL KUMAR S/O GUNDAPPA BIRADAR - Complainant(s)

Versus

RAJU RAJSHEKAR S/O NAGAYYA HANGARGI - Opp.Party(s)

P.M. DESHPANDE

08 Nov 2016

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,AT BIDAR::

 

 

                                                                                                                 C.C.No 25/2014

                                                 

                                                                                                 Date of filing : 04/04/2014.

 

                                                                                             Date of disposal : 08/11/2016.

 

P R E S E N T:-                (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                           (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                   

 

                                               

COMPLAINANT/S:               Anilkumar S/o Gundappa Birdar

                                                Age 45 years, Occ: Adv., and Agri,

                                             R/o H.No.9-10-130,

                                             Rampure Colony, Bidar.

 

              

 

 

                                            (By Shri. P.M. Deshpande., Advocate )

 

 

                                                      VERSUS

 

OPPONENT/S   :-                 Raju @ Rajshekhar S/o Nagayya Hangargi,

                                                Prop: Dealing agent of trading of antique

                                             pieces etc. RR Antique pieces,

                                             supplying Agency

                                            (now shifted the shop from Bidar)

                                                To

                                             M/s Kumaresvar trading Co.,

                                             Prop. Raju@ Rajshekhar,

                                            Shop No.8 and 9 Adat Angadi

                                             navnagar, APMC yard Bagalkot-

                                             587101(Karnataka).

 

 

                                           (By Sri. R.G.Kali., Advocate)          
                                         

 

 

 

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint filed u/s 12 of the C.P. Act, 1986 alleging deficiency of service and unethical trade practices in the part of the opponent. The averments of the complaint in a nutshell is as underneath.

 

2.              That, the complainant is an Advocate and agriculturist by profession and has his homestead property at the address shown in the cause title.  The opponent had a supplying agency of antique pieces at Bidar and was dealing with such pieces. The complainant having a motto decorating his house with antique materials visited the business premises of the opponent along with two of his friends by name Sangappa and Basawaraj and were shown samples, on 11.12.2012.  The cost of the articles selected by the complainant was Rs.10,00,000/- and it was demanded that, the price to be paid in advance consequent upon which, articles would be delivered within a period of seven days.  The complainant, in the presence of his aforestated friends paid the sum of Rs.10,00,000/- on 02.02.2013.  The opponent deliberated that, should there be a failure in his part to deliver the articles within the stipulated period of seven days the complainant can take back his money and as a collateral security issued a post dated cheque ( ExP1) favouring the complainant.

 

 

                   

3.                The complainant further asserts that, even after 10/15 days of the receipt of amount, the opponent did not deliver the desired articles and when was demanded the refund, persuaded the complainant to encash the cheque already issued to him.  The complainant presented the cheque for encashment through his bankers u/s syndicate Bank, Bidar on 11.03.2013 (Ex.P2) ad (EXP3) but was issued an endorsement by the bankers on 10.04.2013 (EXP4) regarding dishonour of the cheque concerned, on the ground of “Stop payment”.

 

4.                 Exasperated, the complainant got issued a legal notice (copy as ExP5) date: 22.05.2013, postal receipt as ExP-6, Returned Postal Cover with endorsement “Refused by party” date: 24.05.2013, as (ExP-7) and postal acknowledgement form as (ExP8).  The Complainant has also submitted a receipt acknowledging the payment date: 02.01.2013 vide (Ex.P9).  In furtherance of the case, along with the complaint, the affidavits of witnesses by names Sangappa and Baswaraj has been filed and they are marked as Ex. P10 and ExP11 respectively.

 

5.        On receipt of Court of notice, the opponent had put up appearance through an advocate and had filed Versions (Objections) denying al charges levelled by the complainant.  As a corollary to the denial, the opponent purportedly revealing the true facts of the transactions atpage-4 of the versions states as follows:

 

i.          The Respondent is under taking business in the name and style of the “M/s. Kumareshwar Trading Company” situated at A.P.M.C. Yard, Navanagar Bagalkot.  The Respondent is doing business as Commission Agent in respect of agricultural produce.  The Respondent business is existing since 20 years and has good name and reputation in business, society among Bagalkot District and also at different Districts. The Respondent Company is well-known trade and Commission Agent, obviously known to the persons doing agriculture.

 

ii.         It is submitted that complainant used to sell his agriculture produce to Respondent Trading Company, the Respondent use to visit the complainant and deal to the agriculture produce of complainant.  The complainant agreed to sell his crop of ‘Tordal’ to the Respondent Trading Company.  The Respondent Trading Company in order to seize the goods to sell in his favour issued a cheque as per annexure ‘I’ to the complainant with a condition that same to be presented after supply of ‘Tordal’ of a specified quantity and after the final invoice, the complainant has to receive his amount as per the supplied quantity of ‘Tordal’ and to return the cheque at annexure ‘I‘ to the Respondent.  The cheque Annexure ‘I’ was issued as a security of the supply of Tordal as agreed.  This being the fact, the complainant not sold his Tordal to the Respondent Trading Company when on enquiry goes  postponing the supply of Tordal on or other pretext.       

 

iii.       It is submitted that the Respondent has no other business except “M/s. Kumareshwar Trading Company” situated at A.P.M.C. yard, Navanagar Bagalkot.  The Respondent having no knowledge of supplying or in dealing with any kind of antique pieces.  It is submitted that at no point of time the Respondent Company had undertaken its business under the name and style of the ‘R.R. Antique Pieces Supplying agency “near Ambedkar Chowk Bidar.  The document at Annexure ‘IX’ to the complainant is concocted and created.  It is submitted that Annexure ÍX’ does bear the name of Respondent and it is a computer printout without bearing any valid license number, etc., and the signature appearing Annexure ‘IX’ is forged on the Respondent dispute the signature on Annexure ‘IX’ and the same be sent to examination to the competent laboratory.  At the same time the story of complainant concocted and no prudent man would pay Rs.10,00,000/- without there being any proper document or a contract.  It is submitted that on : 02.02.2013 the Respondent with his Manager by name ’Mahadevappa. Kalyanshetty’went to Bidar and asked the complainant to supply the agreed goods or return the cheque at Annexure ‘I’, the complainant again took time to supply the same as per oral agreement, believing the words of the complainant the respondent return back to Bagalkot in anticipation of receipt of agreed goods from the complainat.  Inspite repeated phone calls to the complainant he goes on postponing the fulfilment of oral agreement.  Hence, Respondent had no other option to intimate the Bank to make stop payment.  Finally, the Respondent warned the complainant to return the cheque immediately the complainant submitted the same for encashment.  It is submitted that the reading of complaint appears that the complainant  intends t initiate the proceedings under ‘Negotiable Instruments Act’ only in order to harass and to get wrongful gain from the illegal position of Annexure ‘I ‘as time lapsed to initiate the same under Negotiable Instruments Act, but filed the present complaint before the Consumer Forum.

 

iv.       There is nothing to show that the Respondent was Trading in any antique pieces as alleged by the complainant.  The cheque was issued as a security for the supply of agricultural produce Tordal to the respondent by the complainant.  There is a contractual obligation on the complainant to supply Tordal or to return the cheque at Annexure-I.

 

v.         The respondent is not a Trader as alleged by the complainant.  Hence, there is no such unfair trade practice, deficiency of service, dereliction or victimization a alleged in the complaint.  The alleged act of Respondent does not fall within the provisions of Consumer Protection Act.  The Respondent never undertook his Trade or business in the name of ‘R.R. Antique Pieces Supplying agency’, the burden is on the complainant to prove that Respondent was doing business or trade in the name and style of ’R.R. Antique Pieces Supplying Agency’.  The Respondent reserves his right to initiate proceedings against the complainant for breach of contact for non-supply of Tordal to Respondent and with holding of cheque as per Annexure-I.

 

vi.       It is submitted that this Forum has no jurisdiction to entertain the present compliant.  The allegation in the complaint will not fall within the provisions of Consumer Protection Act, the complainant has not produce any material to show the Respondent is Trader as alleged by him and he himself is a consumer.

 

6.                     We see from the objections that, the opponent is denying his status as and antique dealer, rather claiming himself as an agent at A.P.M.C. Yard at Bagalkote  ( Ex R-1) and claims that, partnership firm has been formed to deal with agricultural produces (ExR-2) in conducting the business.  As a whole, the opponent claims that, the cheque was issued in anticipation of procuring Turdal from the complainant and since he could not supply the product, an advice was rendered to the bank regarding stoppage of payment etc.  Out of the two documents referred to above, Ex R-1 has some relevance, certifying alleged Kumareshwar Trading Co. As a Commission agent.  The document at Ex R-2, an unregistered one has no relevance in view of the provisions of section -39 of the Partnership Act.

 

7.                     As it emerges, the opponent interalia challenges the jurisdiction of this Forum to adjudicate the case in para( vi) at page 7 of the objections, justifying the same in para (iii) at page-6 of the objections that, he was anticipating a case u/s 138 of the N.I. Act and not the present one.

 

8.                     Delving further into the matter, we analyse the corollary of events from the order sheets of the case. It appears, on 08.12.2015, after hearing the respective counsels up to certain extent, a submission was made by both sides expressing their willingness to arrive at an amicable settlement and acting under the principles of Alternative Disputes Redressal Mechanism, this Court has been giving liberal adjournments till 22.10.2016.  When the parties to the dispute failed to appear on the said date, we were constrained to post the case for passing the verdict on 08.11.2016.

 

9.                     Justifying their respective stands, the parties have filed their respective evidence affidavits and written arguments.  Synthesizing the diverse stands of the parties to the dispute, the following points arise for our consideration:

                a.              Does this Forum lack the jurisdiction to try this case as

                        claimed by the opponent?

            b.         Does the complainant prove that, there has been a                                  

                       deficiency of service and unethical trade practice in the

                       part of the opponent?

            c.         Does the opponent prove that, the alleged transaction was
                       not for antique articles but for procurement of Turdal?

            d.         What order?

 

 

 

 

                                                                                                              :: REASONS ::

 

10.       a).       As discussed supra, the opponent is clamouring that, he was expecting a case u/s 138 N.I. Act. and not before this forum.  He asserts that, the cheque under caption was issued in anticipation of supply of Turdal and not a transaction in antique articles.  He has not denied the issuance of cheque, nor had preferred to cross examine the complainant or the witness about the issuance of the cheque.   It was open for him to do so, which opportunity he ignored, rather preferred to propose an amicable settlement on 08.12.2015 as is revealed from the order sheet.  Had there not been an iota of the veracity in the complaint, he could not have come forward to offer such a proposition.  Blasting his assertions about the lack of jurisdiction of this forum, we resort to the all pervading provision of section-3 of the C.P. Act, which confers a power on this forum to try this case, arising out of the transactions between a consumer and trader/service provider, not in derogation of any other law for the time being in force and rule the points raised by the opponent in negative.   

            b).       The points at (b) and(c) are to be answered concurrently.  The complainant by producing documents vide Ex.P1 to P11 has amply proved that, there was a proposition of supplying antique items to decorate his house.  Per contra, the opponent has miserably failed to prove that, the cheque at Ex.P1 was issued for supply of Turdal and not otherwise.  He has not preferred to cross examine the complainant or his witness to elucidate any fact to the contrary, rather has taken this court on a ride outright from 08.12.2015, proposing on amicable settlement and absenting himself thereafter.  This itself proves the mensrea of the opponent amply, whereby we answer the points (b) in affirmative, point (c) in the negative and constrained to pass the following:

  

ORDER

 

           

 

1. The complaint is allowed.
2. The opponent is directed to pay a sum of Rs.10,00,000/- (Rupees ten lakhs) together with an interest @ 12 % p.a. from the date of receipt of the amount i.e., 02.01.2013, till the date of realisation.
3. The opponent is further directed to pay a sum of Rs.1,00,000/- as compensation to the complainant undergoing loss, mental agonies undergone by the later.
4. The opponent is further directed to pay a sum of Rs.10,000/- towards litigation expenses.

e)   Four weeks time is granted to comply this order.

 

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 8^th day of  November-2016 )

                  Sd/-                                                               Sd/-

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                   President.                    

                                    

Documents produced by the complainant

1. Ex.P.1- Cheque under caption.
2. Ex.P.2- Deposit ship of the bank.
3. Ex.P.3- Copy of the whole of deposit ship.
4. Ex.P.4- Bankers endorsement.
5. Ex.P.5- Office copy of legal notice.
6. Ex.P.6- Postal receipt of legal notice.
7. Ex.P.7- returned postal cover.
8. Ex.P.8-Postal acknowledgement form.
9. Ex.P.9- receipt of the opponent date: 02.02.2013.
10. Ex.P.10- Affidavit of witness Sri. Sangappa.
11. Ex.P.11- affidavit of witness Sri Basawaraj.

 

Documents produced by the Opponent/s

 

12.  Ex.R1- License of A.P.M.C., Bagalkote (copy).
13. Ex.R2- Copy of purported instrument of partnership

             (unregistered).

 

                    Sd/-                                                                    Sd/-

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                   President.