OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.134/09
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Sri Upendra Nath Deka - Member
Sri Dhirendra Kumar Yadav - Complainant
S/O Late Basudev Rai,
Garowan Patty, Tezour Town,
P.O. & P.S.Tezpur, Dist:-Sonitpur , Assam.
-vs-
1) The Peerless General Finance & Investment Co.Ltd. - Opp.Party No.1
Represented by its Branch Manager,
Dr.B.Baruah Road, Ulubari,Guwahati-781007
District -Kamrup,Assam
2) The Peerless General Finance & Investment Co.Ltd. - Opp.Party No.2
Represented by its Regional Manager,
Dr.B.Baruah Road, Ulubari,Guwahati-781007
District -Kamrup,Assam.
3) The Peerless General Finance & Investment Co.Ltd. - Opp.Party No.3
Represented by its General Manager (Administration)
Peerless Bhawan,3 Esplanade East, Kolkata -69, West Bengal.
4) The Peerless General Finance & Investment Co.Ltd. - Opp.Party No.4
Represented by its Director (Operation)
Peerless Bhawan,3 Esplanade East, Kolkata -69, West Bengal.
-2-
Appearance-
Learned advocate Mr.M.R.Adhikari for the complainant.
Learned advocate Mr.Z.Ahsan for Opp.Parties
Date of argument - 24.2.16
Date of judgment- 20.9.16
JUDGMENT
This is a case u/s 12 of the Consumer Protection Act , 1986.
1.The complaint filed by Sri Dhirendra Kumar Yadav was admitted on 19.12.2009 and notice was served on the opp.parties and opp.party side filed their written statement. Thereafter , the complainant filed his evidence in affidavit and also the evidence in affidavit of one Sri Chanchal Kr. Chouhan in support of his case and the opp.party side cross-examined them. Thereafter, the opp.party side filed evidence in affidavit of Sri Surajit Bordoloi and he was also cross-examined by the complainant side. Finally, ld advocate Ms Sewalee Das filed written argument for the complainant and Ld.advocate Mr.Z.Ahsan for the opp.parties.
2. The gist of the pleading of the complainant is that Peerless General Finance and Investment Co.Ltd.,Guwahati branch , Ulubari received payment of Rs.10,000/- (Rupees ten thousand)only as deposit against peerless social Welfare Scheme on 28.3.2001 and the certificate No. V0003199 dtd. 30.3.2001 was issued to the complainant. The said certificate matured on 28.3.2006. After the maturity, the opp.parties are liable to pay Rs.15,720/- and the same has not yet been paid in spite of efforts made by the complainant. The aforesaid certificate of Peerless General Finance and Investment Co.Ltd.Guwahati branch was signed by the Chief Executive (Operation) and the company Secretary. The complainant accompanying by Shri Chanchan Kumar Chauhan of Tezpur met the Branch Manager and requested him for early settlement of the aforesaid amount due under the certificate just after the maturity in the year 2006. Nothing was done by the Opp.Party No.1 as assured. Thereafter , vide letter of request dtd. 25.8.2008, the complainant urged the Guwahati Branch of the said company with copy to the Regional Manager, of the Peerless General Finance and Investment Co.Ltd., Kolkata for settlement of payment and taking proper and necessary action. The Branch Manager of the said company, Guwahati asked for furnishing the receipt of proposal to settle the payment. The complainant, vide letter dtd.9.4.09, the Photostat copy of the certificate was duly sent to the said Branch Accountant with copies of each to the concerned officials of the company by registered post. The said letter was duly received by Branch Manager, Guwahati Branch, the Accountant of Guwahati branch and the Regional Manager, Guwahati but even then settlement was not made. Having failed in settlement of the matter, the complainant was compelled to issue a notice to the Director (Operation), The Peerless General Finance & Investment Co.Ltd., Kolkata, the General Manager (Adm), of the said Company, Kolkata dtd. 5.8.2009 through complainant’s advocate Sri Sewalee Das, Tezpur Bar Association, Tezpur by registered post and the said officials received the same. Even then the matter of payment has not been settled by the opp.parties. So, he prays to this forum for directing the opp.parties to pay Rs.15,720/- against the principal amount to him and also Rs.5,000/- as compensation for causing mental pain and Rs.5,000/- as cost of the suit and also Rs.5,500/- as interest calculated @ 10% per annum with effect from 28.3.06 to 28.9.09.
3.The gist of the pleading of the opp.parties namely Peerless General Finance and Investment Co.Ltd.and others is that the instant case filed by the complainant is motivated, untrue, vexatious and baseless. The case is barred by limitation as per Section 24(A) of Consumer Protection Act,1986 having it was not filed within two years from the date of arising of cause of Action. The cause of action herein arose on 28.3.06 having date of maturity of Certificate No.V0003199 was on 28.3.2006 and the complainant had to file the complaint within two years in between 28.3.2006 and 28.3.2008, but he filed the complaint in Dec,2009 i.e. after expiry of the period of limitation. They did not issue the Certificate No. V0003199 to the complainant and this is a forged document and hence the complainant has no cause of action to file the present complaint. They never received Rs.10,000/- from the complainant on 28.3.2001 nor issued Certificate No. V0003199 to him and therefore they are not liable to pay Rs.15,720/- as maturity value of the said certificate to the complainant. In all the certificates issued by the opp.parties some signatures were printed, but the genuine certificates bear the signature and seal of the issuing branch and the instant certificate bears only printed signatures and although it is shown to have been issued from the Guwahati Branch Office of the company, the same does not have signature and seal of the Branch Manager of the issuing branch office. The complainant might had got blank certificate from their office and printed some scheme on it and now has been claiming the alleged maturity value of the said fake certificate knowing fully well that he had never deposited any money with the company and therefore he is not entitled to get any money from them. The complainant prepared the said certificate in fraudulent manner and put his claim before them with that forged document, and therefore, he is not entitled to get any relief from this forum.
4.We have perused the pleading of both the parties as well as the argument forwarded by their ld counsels. We have also perused the evidence adduced as well as the order of this forum dtd. 22.12.2009. It is found that the ld counsel of the opp.party Mr.Z.Ahsan, at the out set of his argument, submits that the complaint is barred by limitation having it was not filed within two years of limitation provided u/s 24(A) of Consumer Protection Act 1986, and hence the complaint is liable to be dismissed. In support of his argument he refers judgment of Hon’ble National Commission in Baroda Municipal Corporation V/s Akhil Bharatiya Grahak Panchayat Ltd & Ors, reported on Vol-1 (1993)CPJ and Revision Petition No.2618 of 2002 andin C/H.Vittal Reddy-vs- The Manager, District Co-operative Central Bank Ltd. & others as well as the judgments of Hon’ble Supreme Court in M/S Kerala Agro Machinery Corporation Ltd.-vs- Bijoy Kumar Roy and Others (Civil Appeal 1771-1772 of 2002),and Civil Appeal No.2067 of 2002 and in State Bank of India-vs- B.S.Agriculture Industries (2009) 5 SCC. Before perusing the submission of ld advocate Mr.Z.Ahsan, on limitation point, we have, after perusing the order of this forum dtd. 22.12.2009 in Misc Case No. 20/09, found that at the time of filing the instant complaint, the complainant had also filed one petition u/s 24 (A)(2) of Consumer Protection Act,1986 praying for condonation of delay in filing the complaint and the said petition was registered as petition No. 1228 dtd. 19.12.2009 (Misc Case No. 20/09) and this forum, on 22.12.2009, passed a speaking order and by that order, the forum held that there was no delay in filing this complaint which is to be condoned and that this complainant may file the case (the complaint) which appears to be within time at this stage, meaning thereby the complainant had not caused delay in filing the present complaint. It is also found that after passing the said order, the complaint filed by this complainant was admitted by this forum on 19.12.2009. Secondly, it is also found from the record that the opp.party side did not assail the order dtd. 22.12.2009 passed in Misc Case No. 20/09 (Condonation of delay petition ) before higher authority, and in such situation, the said order has attained finality. For that count, neither of the parties can re-open this issue again, nor this forum has authority to give a fresh decision on that issue , rather this forum has to comply with the said order. Therefore, we hold that the order of this forum dtd. 22.12.2009 in Misc. Case No. 20/09 will remain in vogue which commands that the complaint filed by the complainant, had been filed within limitation.
5.The complainant’s main plea is that on 28.3.2001 he deposited Rs.10,000/- against Peerless Social Welfare Scheme, and accordingly the certificate No. V0003199 dtd. 30.3.2001 was issued to him. In the evidence the complainant states that he deposited Rs.10,000/- in the Guwahati Branch of the opp.party company against Peerless Social Welfare Scheme and certificate No. V0003199 dtd. 30.3.2001 was issued to him by Guwahati Branch. But the plea of the opp.party side is that the certificate Annex.A certificate is a forged document and such certificate was not issued by their company. C.W. 2, Sri Chanchal Kumar Chauhan states that he was the agent of the opposite party since2.5.91 and while he was agent of the opp.parties, the complainant deposited Rs.10,000/- against Peerless Social Welfare Scheme through him to the said company and the company issued certificate bearing No. V0003199 dtd.30.3.2001 to him and Ex.1 is the said certificate and he deposited the said amount at Guwahati branch in presence of the complainant . By cross examining C.W.2, the opp.party side has failed to break his veracity. Hence what he states in evidence can be relied on and his version supports the version of the complainant(C.W.1) that the complainant deposited Rs.10,000/- against Peerless Social Welfare Scheme at Guwahati branch of the opp.party company and the said branch then issued certificate bearing No. V0003199 dtd.30.3.2001 to him. In this case, the opp.party side’s version is that the certificate is a forged document. In this case certain statements of D.W.(O.P.W.) namely, Mr.Surajit Bordoloi are very important. In the cross examination, he states that his office had not taken action against their agent Sri Chanchal Kumar Chauhan with allegation that he had issued a fake certificate in favour of the complainant, nor they have taken plea that the said agent had issued a fake certificateto the complainant, nor takes plea that Mr.Chanchal Kr.Chauhan was an inactive agent at that time. Thus, this version of O.P.W. infers that Mr.Chanchal Kr.Chauhan was the agent of the opp.party’s at the time of issuance of the certificate ( Ex.1) to the complainant and through him the complainant deposited Rs.10,000/- at Guwahati branch of the opp.party company against Social Welfare Scheme, and said the branch also issued Ex.1 certificate to the complainant.
6.D.W.(O.P.W.) in the cross examination, further states that the formats of the certificate are kept in a highly protected place. He further states that in the written statement they have not mentioned that Ex 1 is a fabricated document which was made by printing or scanning. He further states that he has not mentioned the said thing in his affidavit also. He further states that he does not know whether the company had taken any action against the keeper of the documents for taking out blank format of Ex.1from the stock of their office.From these versions of D.W.(O.P.W.), it is established that, he admits that the format of Ex.1 certificate belongs to their company and that was taken out from their store. Now question is that why the company had not taken any legal action against the store keeper of the said format for act of taking out said format from their store. For not taking such action by the opp.party against their store keeper, an inference arises that the format of Ex.1 was lawfully taken out from the store ( highly protected place) of the opp.party. We have perused Ex.1 (certificate ) and found that it contains signatures of the company secretary and the Chief Executive (operation) of the company. It is found that the opp.partyalso admits that Ex 1 bears the signatures of these two authorities of the company, but their plea is that it is a fake documents as was not signed by the Branch Manager of the issuing branch. We have taken judicial notice of to paid up certificates belong to namely Sri Amar Gaur, and Mrs.Dipti Ghosh produced by the complainant and found that said certificates also do not bear the signatures of the Branch Manager of the issuing branch, but bear signatures of the company secretary and the Chief Executive (Operation), only and maturity amount of both certificates were paid to the incumbents. This factual situation inferrs that for issuing the certificates under any scheme of the opp.party, the signature of the branch manager of the issuing branch is not required , but the signatures of secretary of the company and the chief executive (Operation) are required; and so, in such situationit cannot be said that Exhibit-1 is a fabricated document. The opp.party side, vide Ex.A, trys to states that the list of purchasers of the certificates of Social Welfare Scheme does not bear information about Ex 1 certificate. We have perused the said statement and found that the last number of the certificate is V0003194 which is in the name of Dilip Ch.Kalita , but in the said statement, the certificate of the complainant was not recorded. The opp.party side Ld counsel submits that as the certificates ( Ex 1) is not recorded in Ex.A which is the statement of certificates issued under Social Welfare Scheme, it is found that no such certificate was issued to the complainant. The opp.party sides admits that Ex.1 is a format belong to their office and the signatures of the company secretary as well as Chief Executive (operation) are the printed signatures of these two authorities and their certificate bears their signatures . In such circumstances,the fact of not recording Ex.1 certificate in Ex. A (statement of the certificates) does no way inferrs that Ex.1 is a false certificate. Ld advocate Mr.Ahsan further submits that the complainant has failed to submit the copy of the proposal and the money receipt either before the opp.party or in this forum, and that fact inferrs that the complainant neither deposited any amount nor signed any proposal form. This argument of Ld.advocate Mr.Ahsan is not sustainable because after receipt of the certificate itself, no certificate-holder generally preserves the copy of the proposal form and the money receipt and only responsibility of the certificate-holders to produce the certificates only before the company for payment of the maturity value. The another argument of the opp.party sides’ counsel Mr. Ahsan is that as alleged certificate has not been recorded in the register of the opp.party’s company, the said certificate must be held to be a fraudulent one. His argument is not sustainable owing to the fact that it is not the liability of the certificate-holders to look into the matter whether his certificate is recorded in the register or not. Therefore, we hold that the fact of not recording Ex.1 certificate in the register of the company does not cause the assertion of the complainant to the fact that he purchased Ex.1 from the opp.party unbelievable. In this premises, we hold that the certificate No. V0003199 dtd. 28.3.2001 (Ex.1) was actually issued on 30.3.2001 to the complainant by Guwahati branch of the opp.party after receipt of Rs.10,000/- from him, and it is a genuine certificate and the complainant is entitled to get the maturity amount of the said certificate. We also hold that the act of refusal to pay the maturity amount of the said certificate to the complainant by opp.party is an act of deficiency of service on the part of the opp.parties towards the complainant, and in result the opp.parties are liable to pay the maturity amount of the said certificate which is Rs.15,720/- along with interest @10% from the date of its maturity(28.3.2006) to the complainant. It is also seen that the complainant was compelled to make correspondence with them on several occasions in the pursuit of getting the maturity amount paid to him, but the opp.parties refused to pay the said amount to him and thereby they caused harassment to the complainant and in result the opp.parties are liable to pay atleast Rs.4,000/- as compensation to the complainant for causing harassment to him and also to pay another amount of Rs. 4,000/- as the cost of the litigation.
7.Because of what has been discussed as above , the complaint against the opp.parties is allowed on contest and the opp.parties are directed to pay the maturity value of the concerned certificate i.e. Rs.15,720/- along with interest @ 10% from the date of maturity (28.3.06) till full payment and Rs. 4,000/- as compensation for causing harassment to him as well as Rs.4,000/- as cost of proceeding to which the opp.parties are jointly and severally liable. They are also directed to make the payment within two months, in default of which, the other two amounts shall also carry interest at the same rate.
Given under our hands and seal of this forum on this day 20th Sep, 2016.
Free copies of judgment be delivered to the parties.
(Mr.U.N.Deka) (Md.S.Hussain)
Member President
