BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                             : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 360/2015 Filed on 28/07/2015

ORDER DATED: 05/11/2021

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT:

This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

1. The complainant is the proprietor of M/s.Weston Watch Company.  The M/s.Weston Watch Company have an account with the 2^nd opposite party viz No.61307.  The said account had a turnover of more than 10 crores during 2012-2013.  The said M/s.Weston Watch company running its business very successfully in Kerala.  While so the said M/s. Weston Watch company intended to start a new venture at China for manufacturing watches.  For the said purpose the complainant approached the 2^nd opposite party for a Nett worth certificate to show that the  account of M/s. Weston Watch Company had a turnover of Rs.10 Crores during the financial year of 2012-2013, which is necessary to start a unit at China.  On 12/09/2013 the 2^nd opposite party issued a certificate purposely stating that the M/s. Weston Watch company has a turnover of only Rs.2 crores during the last six months.  By noticing the anomaly in the said certificate, the complainant again approached the 2^nd opposite party and the 2^nd opposite party issued another certificate on 19/09/2013 stating that the said account had a turnover of more than Rs.10 crores during the financial year of 2012-2013.  Though the willful negligent act of the 2^nd opposite party was rectified later, but it was too late and due to the said reason the complainant lost his opportunity to start a business at China and sustained a loss of more than Rs.50,00,000/-.  Hence the complainant approached this Commission for redressal of his grievances.
2. Version filed by 2^nd opposite party.  The complainant has a loan account vide No.61307 with 2^nd opposite party.  The said account turned NPA on 30/06/2014 and was subsequently regularized on 30/09/2014.  As on 20/04/2014 there was an overdue of Rs.1,82,990/- alone of the said account.  The complainant requested the 2^nd opposite party to issue the certificate for a period of 6 months prior to the date of issuance and the complainant wrongly stated in the said para only to create false evidence in the complaint.  The complainant himself admitted in said para that the 2^nd opposite party issued the certificate in two different dates.  It is clear from the statement itself that the mistake was committed by the complainant alone in seeking the certificate from 2^nd opposite party.  On 12/09/2013, the complainant sought for a certificate for period of six months prior to the date of issuance.  The complainant request for net worth certificate for the period of 2012-2013 again on 19/09/2013 after when complainant realize that certificate dated 12/09/2013 is not enough to start a unit at China.  Now the complainant is putting blame on the opposite parties only with an intention to prevent the recovery measures which the opposite parties might resort to on the event of account of the complainant becoming NPA in future.  The willful negligent act was by the complainant alone not the opposite parties.  The opposite parties act according to RBI guide lines and hence there is no deficiency of service contemplated U/S 2(g) of Consumer Protection Act 1986.
3. The evidence in this case consists of PW1 and Exts.P1 to P5 on the side of the complainant and DW1 on the side of the opposite parties.
4. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice on the      

part of the Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the complaint?
3. Order as to cost?

5.Heard both sides. Perused records.    To substantiate the case of the complainant, the complainant himself was examined as PW1 and Ext.P1 to P5 were marked.  Ext.P1 is the copy of Certificate issued by the 2^nd opposite party dated 12/09/2013.  Ext.P2 is the copy of Certificate issued by the 2^nd opposite party dated 19/09/2013. Ext.P3 is the copy of legal notice dated 18/03/2015.  Ext.P4 is the copy of reply notice dated 20/04/2015.  Ext.P5 is the copy of the relevant pages of the passport of the complainant.   The crux of the matter is that the 2^nd Opposite Party issued Ext.P1 certificate negligently and though the 2^nd Opposite Party subsequently rectified the mistake by issuing Ext.P2 certificate, it was too late and due to the said reason the complainant had lost his opportunity to start a business at China and sustained a loss of more than Rs.50,000,00/- (Rupees Fifty Lakhs only).  The complainant approached this Commission claiming a total relief amounts to Rs.19,50,000/- (Rupees Nineteen Lakhs Fifty Thousand only) from the Opposite Parties. 

6. In order to succeed the case, the complainant has to establish that he has availed service from the Opposite Parties and that there is deficiency in service on the part of the Opposite Parties.  We feel that for a proper discussion, it is necessary to go through the definitions of “service” and “deficiency” under the Consumer Protection Act 1986.  Section 2(1)(o) of Consumer Protection Act 1986 defines service as “service means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”.  So also Section 2 (1)(g) of Consumer Protection Act 1986 defines deficiency as “deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under nay law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”   

7.The Hon’ble Supreme Court in a recent Judgment dt. 6^th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.  The Hon’ble Supreme Court further held that if the complainant is able to discharge its initial onus, the burden would then shift to the Opposite Party.  According to the complainant Ext.P2 certificate is the correct certificate, but the issuance of the same was too late for him to proceed further with the project.   It is pertinent to note that Ex.P1 is dt.12/09/2013 and Ext.P2 is dt.19/09/2013, that means Ext.P2 the rectified Certificate was issued on the 7^th day from the date of issue of Ext.P1 which is the alleged defective certificate.  At this juncture the importance of the last date on which all the papers are to be submitted for starting a business at China by the complainant becomes very relevant.    Though the complainant produced Ext.P1 to Ext.P5, none of those documents shows that he had any communication with any authorities, which shall reveal that he had a plan to start a business at China for which a certificate is required.   Though the Complainant while cross examination (PW1 Cross page 2- 11^th line) deposed that he has to submit all the required documents before the “Industrial Development Guansho China” , no communication from the said authority or from any authority showing that Ext.P1 was not a sufficient certificate and that he has to submit a correct certificate within a specified time.   More over in cross examination page 6, the complainant /PW1 admitted that the Opposite Parties have not entered with the complainant offering any service to start a business at China.  The Complainant/PW1 also deposed that the Opposite Parties have not collected any service charge from the complainant.

8. In view of the dictum laid down by the Hon’ble Supreme Court in the above referred Judgment and on the basis of the above discussions, we find that the complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service rendered by the Opposite Parties.  As the burden of proving the deficiency in service is upon the person who alleges it, we find that the complainant has miserably failed to establish the case put forward by him against the Opposite Parties.      

            In the result the complaint is dismissed.  Considering the peculiar facts and circumstances of this complaint, there will be no order as to cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 05^th  day of November,  2021.

R

C.C. No. 360/2015

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:                       NIL

                                                                                                                            Sd/-

                                                                                                                    PRESIDENT