1. AYISHAKUTTY. E 2. C.S. SULEKHA BEEVI 3. MOHAMMED MUSTAFA KOOTHRADAN
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
By Smt. C.S. Sulekha Beevi, President 1. First opposite party is a financial concern of which second opposite party is the Managing Partner. Other opposite parties are partners of the said concern. Sixth opposite party approached complainant requesting him to deposit money as fixed deposits and also assured regular interest. Complainant deposited Rs.30,000/- on 29-01-1997 for which opposite parties issued a receipt and agreed to pay interest @ 12% per annum. Complainant received interest upon this deposit till 28-7-1998. On this date complainant made a further deposit of Rs.20,000/- for which also opposite parties issued a receipt and agreed to pay interest @ 12% per annum. Opposite parties did not pay any interest after 28-7-1998 and also failed to return the fixed deposit amounts. Later the firm was closed down. Hence this complaint. 2. First, second, fourth and fifth opposite parties have filed a joined and detailed version. Opposite parties dispute the complainant to be a consumer and deny the dispute to be a consumer dispute. It is submitted by opposite parties that the documents referred in the complaint are forged documents created by sixth opposite party in collussion with the complainant, to cause injury and harassment to the firm and it's partners. That it was sixth opposite party who was actually conducting the business of the firm as Manager and that second opposite party was acting as Managing Partner only for name sake. It is averred that sixth opposite party has created documents forging the signature of second opposite party by using the printed forms available in the firm. That the partners only later came to know about the embezzlement done by sixth opposite party in collussion with many others in whom he had interest. Such forgery was done without knowledge and consent of other partners of the firm. The documents are not admissible in evidence. That opposite parties have not received any amount from the complainant. Complainant is not entitled to any reliefs. 3. Sixth opposite party has filed a separate version contending that the complaint is not legally maintainable. He admits that he was a partner of the firm. He denies to have received any amount from the complainant and submits that he is not liable to pay any amount as claimed in the complaint. 4. On 31-7-2000 this case was disposed by my predecessor, allowing the complaint. Opposite parties filed appeal No.1063/2000 challenging the order. As per judgment dated, 10-6-2005 the case was remitted to this Forum to enable both sides to adduce evidence in support of their rival cases. At the time of remand of the case there was no sitting of this Forum for almost three years due to vacancy in the post of President. After sitting commenced, notice was issued again to all parties. The notice issued to 3rd opposite party was returned with endorsement 'addressee expired'. Complainant filed I.A.147/2007 to delete the name of 3rd opposite party from party array. This petition was allowed and third opposite party was deleted as per orders dated, 13-2-2008. 5. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.P1 and P2 marked for him. Second opposite party was examined as DW2 on behalf of himself and first, fourth and fifth opposite parties. Ext.R1 marked on their side. Sixth opposite party examined as DW1. No documents marked for sixth opposite party. 6. Points that arise for consideration:- (i) Whether complainant is a consumer. (ii) Whether opposite parties are deficient in service. (iii) If so, reliefs and costs. 7. Point (i):- Opposite parties dispute the maintainability of the complaint upon the contention that complainant is not a consumer. It is submitted by opposite parties that complainant has not hired or availed any services from opposite parties and hence would not come within the ambit of the definition of consumer. It was also submitted that the case involves complicated questions of fact and law which is not possible to be adjudicated in the summary procedure adopted by Consumer Forum. The grievance raised in this complaint is the failure to repay the fixed deposits. The definition of service in Sec.2(1)(o) includes the provisions of facilities in connection with banking, financing etc. Further the position in this regard is no longer res integra. It is held by National Commission in Mrs.Anitha Ahiya Vs. Banwarrilal Arora III 2003 CPJ 137 NC that when amount is deposited in partnership firm, upon agreement to pay interest, the firm is rendering service and that the complainant is a consumer. It is held in Shiv kumar Agarwal Vs. Arun Tandon & another II (2007) CPJ 321 (NC) R.P.No.849/2007 decided on 19-3-2007 that Consumer Forum headed by Senior Judicial Officers is capable of dealing complex questions and even for getting opinion of handwriting expert in cases of disputed documents. The Apex Commission relied upon the position of Apex Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi 2002 (3) CPJ 8 (SC). Relying upon the principles laid in the above decisions we have no doubt to conclude that this complaint is maintainable before this Forum. 8. Point (ii):- Complainant is aggrieved that opposite parties failed to repay the two fixed deposit amounts along with its interest. According to him at the instance of sixth opposite party he deposited Rs.30,000/- on 29-01-1997 on promise to pay interest @ 12%. It is his case that he received interest till 28-7-1998. On this date complainant made another fixed deposit for Rs.20,000/-. Interest agreed was again 12%. Complainant alleges that opposite parties did not pay any interest after 28-7-1998 and has not returned the deposited amount. Complainant relys upon Exts.P1 and P2 which are photocopies of the two receipts for Rs.20,000/- and Rs.30,000/- respectively. 9. The claim is resisted by opposite parties one, two, four and five specifically contending that the receipts are concocted documents made by sixth opposite party in collusion with complainant by forging the signature of second opposite party. It is their case that they have not received any amount as stated in Ext.P1 and P2. 10. Thus the vital issue that poses for consideration before us in deciding whether opposite parties are deficient in service is to examine whether Exts.P1 and P2 documents are genuine or not and whether these can be relied on. At this point, the operative portion of the judgment in Appeal No.1063/2000 is noteworthy. The impugned order is set aside on the ground that documents in support of the case of complainant is not proved to be genuine or not by either party. We remit the case to the lower Forum to enable both the parties to adduce evidence in support of their rival cases. 11. Both sides were allowed to adduce evidence. Complainant produced only photocopies of the receipts earlier, which were marked as Ext.P1 and P2. Complainant presently produced the original of Ext.P2 which is a receipt for deposit of Rs.30,000/-. Complainant has not brought this original receipt on record by specifically requesting to mark it. Counsel for opposite party has any how availed his opportunity to cross examine referring to this document also. Complainant has not produced the original of the receipt for Rs.20,000/-. 12. Counsel for opposite parties Sri.Suresh Alingal argued that Ext.P1 and P2 are not fixed deposit receipts but are only pro notes. If the amounts are received by the firm promising to pay interest then definitely the person who has made the deposit is entitled to receive it back with interest, be it a pro note or fixed deposit receipt. Therefore we do not think it is necessary to delve into this question as to the nature of documents Ext.P1 and P2. 13. The specific defence raised by opposite parties in this case is that Exts.P1 and P2 are forged documents. 14. Second opposite party who was examined as DW2 on behalf of remaining opposite parties has denied signature in the Ext.P1 and P2. Second opposite party relies upon Ext.R1 and contends that the receipts are forged by Sixth opposite party. Ext.R1 is an agreement dated, 01-02-2000 purported to be executed between Sixth opposite party and opposite parties two, four and five. In Ext.R1 it is seen stated that sixth opposite party has received various amounts from several persons (whose names and details are also stated) including the complainant, and that sixth opposite party has issued receipts to these persons by forging the signature of second opposite party who is the managing partner of the firm. It is agreed by parties in Ext.R1 that the liability for such amount is solely upon sixth opposite party. 15. Counsel for complainant argued that in Ext.R1 it is specifically stated that Rs.30,000/- and Rs.20,000/- was received from complainant by sixth opposite party and therefore Ext.R1 would substantiate the case of complainant. We are unable to accept this contention in totality. In Ext.R1 it is stated that the amounts were received by sixth opposite party for which forged receipts were issued. If Ext.P1 and P2 are forged documents in collusion with complainant then definitely complainant is not entitled to any relief. 16. We have carefully perused the oral testimony of PW1, DW1, DW2 and the documents Exts.P1, P2 and R1 placed before us. We have to say that the evidence tendered by complainant in the box is full of inconsistencies and contradictions. In the beginning of cross examination he deposed that an amount of Rs.50,000/- was paid to sixth opposite party in one transaction. Later he shifts his stand and says that Rs.20,000/- was given by him later but he cannot remember the date of transaction. He further states that he cannot remember the agreed rate of interest. In cross examination PW1 deposes as under: 1. എന്െറ കൈയില് നിന്നും സംഖ്യ 50.000 - ക. ഒരുമിച്ചു വാങ്ങിയതാണ്. 2. എതൃകക്ഷികളില് O.P.6-നെ പരിചയമുണ്ട്. സുധാകരന്െറ (O.P.6) കൈയിലാണ് 50.000 - ക. കൊടുത്തത്. 3. എത്ര രൂപ പലിശ തരാമെന്നു പറഞ്ഞുവെന്ന് ഒാര്മ്മയില്ല. സംഖ്യ കൊടുത്തപ്പോള് കൂടുതല് interest തരാമെന്നു പറഞ്ഞു. പലിശയെക്കുറിച്ച് എത്ര ശതമാനം എന്ന് ഒാര്മ്മയില്ല. 4. ഞാനും സുധാകരനും (O.P.6) കൂടി സുധാകരന്െറയും മറ്റൊരാളുടെയും ഒപ്പ് കൃത്രിമമായി ഇട്ട് ഉണ്ടാക്കിയതാണ് Ext. P1 and P2 രേഖകള് എന്നു പറഞ്ഞാല് എനിക്കറിയില്ല. കേസില് എതൃകക്ഷികളുടെ വാദങ്ങള് എന്തൊക്കെ എന്നറിയില്ല. കേസില് എതൃകക്ഷികളുടെ വാദത്തിന് അനുസരിച്ച് വേണ്ടതായ നടപടികള് എടുത്തിട്ടില്ല എന്നു പറഞ്ഞാല് എനിക്കറിയില്ല. 5. ഞാന് സുധാകരനെ പോയി കണ്ട് ഇൗ പണം തരുവാന് അാവശ്യപ്പെട്ടിട്ടില്ല. പലിശ കിട്ടാതായപ്പോള് ഞാന് സുധാകരനെ കണ്ട് അനേഷിച്ചു. രണ്ടു മൂന്നു തവണ പോയി. 6. സുധാകരന് എന്തു മറുപടി പറഞ്ഞുവെന്ന് എനിക്കോര്മ്മയില്ല. സുധാകരന് പണം തന്നിട്ടില്ല. പിന്നീട് പരാതി കൊടുത്തു. പരാതി കൊടുക്കുവാനുളള എതൃകക്ഷികളുടെ വിവരവും കാര്യങ്ങളും സുധാകരനാണ് പറഞ്ഞു തന്നത്. 17. The demeanour of PW1 during cross examination is also worth mentioning. The complainant who was a hale and healthy young man by his appearance was finding it difficult to withstand cross examination and asked for a seat when continuously confronted by his contradictions and inconsistent statements. No document was placed before us to show that he was sick or suffered any serious ailment. 18. On appreciating the evidence tendered by PW1 it throws some light upon the contention of collussion between complainant and sixth opposite party. A defence of blanket denial is put forward by sixth opposite party against whom the arrow of forgery is pointed. Sixth opposite party denies Ext.P1, P2 as well as Ext.R1. He has specifically denied the signatures in all these documents. 19. At this juncture, we think that it is necessary to revert to the position of the case prior to the order dated, 31-7-2000. On 24-7-2000 complainant filed a petition to withdraw the prayer for repayment of fixed deposit of Rs.20,000/- with liberty to file fresh case for this amount. The petition was allowed by my predecessor and order was passed allowing complaint in regard to repayment of fixed deposit of Rs.30,000/- with interest only. It is this order that was challenged by opposite parties whereby the case was remitted for adducing fresh evidence. 20. Though complainant had already withdrawn the prayer for refund of Rs.20,000/-, presently he gives a go by to such a petition and seeks for all reliefs as prayed for in the complaint. In the affidavit he does not state anything about the earlier withdrawal of the prayer. Complainant has been less fair to us by suppressing this. The original of this receipt for Rs.20,000/- is not produced. Ext.P1 is only a photocopy. He contends that the original is lost. In cross examination complainant states that the original receipt was entrusted to his counsel and that he is unable to say how it was lost. In the affidavit he affirms that the original was lost from his custody. The mystery behind the act of complainant in not pressing the claim of Rs.20,000/- initially and thereafter contending that the original of the said receipt is lost is known only to the complainant. But such situations impells us to infer that the contention of opposite parties that they are forged in collussion with complainant to be more probable and true. 21. From the totality of facts, circumstances, evidence and materials placed before us, we are able to reach the inescapable conclusion that complainant has failed to prove that Exts.P1 and P2 documents are genuine. We therefore are not inclined to rely upon them. We hold that complainant has miserably failed to establish a case in his favour, and he is not entitled to any of the reliefs claimed in the complaint. 22. In the result, we dismiss the complaint. We make no order as to costs. Dated this 10th day of November, 2008. Sd/- C.S. SULEKHA BEEVI, PRESIDENT Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER APPENDIX Witness examined on the side of the complainant : PW1 PW1 : E. B. Rajan, Complainant. Documents marked on the side of the complainant : Ext.P1 and P2 Ext.P1 : Photo copy of the m Receipt for Rs.20,000/- dated, 28-7-1998 from opposite party. Ext.P2 : Photo copy of the m Receipt for Rs.30,000/- dated, 28-1-1997 from opposite party to complainant.. Witness examined on the side of the opposite parties : DW1 and DW2 DW1 : E. M. Sudhakaran, Sixth opposite party. DW2 : Janardhanan, 2nd opposite party. Documents marked on the side of the opposite parties : Ext.R1 Ext.R1 : Photo copy of the agreement. Sd/- C.S. SULEKHA BEEVI, PRESIDENT Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER
......................AYISHAKUTTY. E ......................C.S. SULEKHA BEEVI ......................MOHAMMED MUSTAFA KOOTHRADAN
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