Per Hon’ble Mr. P.N. Kashalkar PRESIDING JUDICIAL MEMBER
This is an appeal filed by the original opponents against the judgement and award passed by Additional Mumbai Suburban District Consumer Disputes Redressal Forum in consumer complaint no.405/2007 decided on 25/09/2009. While allowing the complaint partly, forum directed that the opponents should jointly and severally pay interest amount of `30,900/- to the complainant and also pay an amount of `5,000/- towards mental harassment and amount of `500/- towards cost and if these amounts are not paid within one month whole amount shall carry interest @ 9% p.a. Aggrieved by this order, original opponents have filed this appeal. Facts to the extent material may be stated as under:-
Complainant was an employee of opponent no.3-M/s.Godrej Consumer Products Ltd. As such employee, he was also a member of Godrej Industries Employees Co-operative Credit Society Ltd. of which opponent no.2-Mr.Nadir B.Godrej was Chairman and opponent no.4-Mr.A.Adi Godrej was Chairman & Managing Director of opponent no.3-M/s.Godrej Consumer Products Ltd. According to complainant, since he was a member of opponent no.1/Co-operative Society he had purchased 50 shares each of `10/-. He was issued share certificate no.211. Accordingly, the shares were from 10501 to 10550. He resigned from the membership of opponent no.1 on 08/10/2001 and requested opponent no.1 society to refund him the amount of shares. He requested opponent no.1 to refund him an amount of `8,569/- and `53,647/-. However, he was told on telephone that the cheques and the gift voucher would be sent to him by courier but since he did not receive the same within reasonable time, he sent notice by registered post to the opponent on 07/01/2007 and requested that he should be given back two cheques of the said amount. But despite notice the said amount was not given to him and, therefore, he filed consumer complaint alleging deficiency in service and unfair trade practice on the part of opponent nos.1 to 4.
Opponent no.1 society filed written version and stated that the complainant was not a consumer. Complaint as filed was absolutely barred by limitation. They denied all the allegations made against them. They admitted that complainant was issued shares of `10/-. Those were 50 shares. Opponent no.1 also admitted that complainant was member of the society from 10/12/1978 to 08/10/2001. When he resigned from the membership, opponent no.3 filed written version and admitted that complainant was their employee and as such employee, he was member of complainant society opponent no.1. According opponent no.3, complainant had caused wrongful loss of `7 to `8 lakhs to the Company and, therefore, opponent no.3 had asked opponent no.1 not to make any payment to the complainant since they had to settle the accounts of the complainant. Opponent no.3 pleaded that in the circumstances, they were not guilty of deficiency in service or unfair trade practice. Complainant had misappropriated certain amounts belonging to the Company for which prosecution was also lodged and, therefore, they pleaded that they had rightly directed opponent no.1-society not to make disbursement of the amount now claimed by the complainant from them. However, forum below while partly allowing the complaint held that during the pendency of the complaint on 22/09/2009 complainant was paid an amount of `98,566/- inclusive of original principle amount of `62,216/- plus interest as calculated by the company on 17/09/2009. However, according to forum, company had given him interest @ 7.50% p.a. But complainant insisted that they should have paid interest @ 18% p.a. whereas the forum was of the view that the complainant can be awarded interest @ 12% p.a. for the period 08/10/2001 to 22/09/2009. Forum held that there was deficiency in service on the part of opponent no.1 because after he resigned from the membership of the society, the amounts lying with the society should have been refunded by the society directly to the complainant in the year 2001 itself but the said amount was withheld by opponent no.1 at the direction of opponent no.3- employer of the complainant. Thus, withholding of dues was illegal and bad in law and, therefore, the forum was of the view that amounts should have been paid to the complainant immediately after he resigned in 2001 itself. They paid the dues in the year 2009 during the pendency of the complaint @ 12% p.a. though complainant had asked for interest @ 18% p.a. Therefore, forum passed an order that besides whatever has been given by the opponents during the pendency of the complaint, opponents should jointly and severally pay a sum of `30,900/- towards the interest to the complainant and also directed to pay `5,000/- towards compensation for mental harassment and `500/- as costs. Aggrieved by this order original opponents have filed this appeal.
We heard submissions of Mr.S.B.Prabhawalkar-Advocate for the appellant and Mr.U.B.Wavikar-Advocate for the respondent. We are finding that apart from anything else during pendency of complaint at the suggestion of the Ld. District Consumer Disputes Redressal Forum, opponent Company was pleased to give cheque of `98,566/- to the complainant on 22/09/2009 in full and final settlement of the dues and receipt was executed by Mr.Vipin Dwivedi- respondent herein in the District Consumer Disputes Redressal Forum on that day. He put signature as having received the said cheque of `98,566/- and in bracket he wrote subject to realization. When this is the receipt issued by the complainant/respondent herein and when the amount was accepted by the complainant in full and final settlement of the dues, forum should not have proceeded further after 22/09/2009 and should not have passed the impugned order by allowing the complaint partly directing appellant to pay a sum of `30,900/- towards the interest to the complainant and to pay `5,000/- towards compensation for mental harassment and `500/- as costs. For once during the pendency of the complaint when claim is fully satisfied and the respondent executed receipt therefor as having received an amount in full and final settlement of dues, there is no question of proceeding further with the consumer complaint by the District Consumer Disputes Redressal Forum and further passing final order which is impugned in this appeal by all the opponents.
Ld.counsel for the respondent brought to our notice that on the receipt his client had mentioned two more sentences in his own hand writing which runs as under:-
“Recd. Subject to grant of more prayers for interest, compensation, legal fees”.
Receipt is complete in all respect. It was typed one and it was signed by the respondent and after he has received the cheque, probably after appellant’s advocate and appellants had gone out of the forum, Mr.Vipin Dwivedi changed his mind and wrote that he was accepting the amount subject to his prayers for interest, compensation and legal fees. This addition in the receipt is not permissible in law. If at all he wanted to object the payment being tendered by the appellants, he should have mentioned above his signature that he is accepting the cheque subject to his right to claim further interest, compensation and legal fees. What is pertinent to note is the fact that after he wrote in his own hand writing these words, he had not put his signature. So this addition is made after appellants had left the forum. Appellants were under impression that they had tendered the payment in full and final settlement of his dues and complaint would not be proceeded further but the forum allowed the complainant to proceed further with the endorsement he wrote on the receipt and went on to pass further order in favour of the complainant. This is not permissible in law. When during the pendency of any complaint matter is thus settled between the parties, District Consumer Disputes Redressal Forum has no further authority to continue with the litigation and to grant some more reliefs, despite the fact that dues of the litigant has been fully satisfied in full and final settlement of the dues. That apart Mr.Prabhawalkar also brought to our notice that this complaint as filed in the year 2007 by the respondent was absolutely barred by limitation. This point was raised by the opponents in their written version filed in the District Consumer Disputes Redressal Forum, but this plea of limitation was not at all discussed by the District Consumer Disputes Redressal Forum. In fact when any plea of limitation is taken by the opponents as preliminary objection while disposing of the complaint, it is the duty of the District Consumer Disputes Redressal Forum to give finding on the plea raised by the opponents in their written version. At page nos.85, 86, opponent no.1 seems to have raised plea of limitation in as much as it has been mentioned that complainant resigned from the membership of opponent no.1 on 18/10/2001 and on that day after resignation he was not given certain dues by the society on that day. The defence of opponent no.1 was that it was not given because opponent no.3 employer had told them that this man had caused loss to the company to the extent of `7 to `8 lakhs and so that amount payable by opponent no.1 to the complainant should be transferred to opponent no.3. In any case on 18/10/2001, after tendering resignation opponent no.1 had not paid the amount to the complainant. So certainly, within two years from 18/10/2001 i.e. on or before 17/10/2003 complainant should have filed consumer complaint against the opponents, but this complaint came to be filed on 09/08/2007. So from the accrual of cause of action complaint as filed was absolutely barred by limitation and there was no condonation of delay application. That apart respondent has filed written arguments and he has touched the plea of limitation raised by the appellant. He says that the amount of Provident fund was credited to the account of the complainant on 26/05/2005 and on the same day it was forfeited for satisfaction of home loan given by the appellant bank to the respondent and this was high handedness. If this plea is to be accepted or is to be acted upon reasonably within two years from that day i.e. from 26/05/2005 he had not filed consumer complaint on or before 25/05/2007. If that date is to be taken as starting point of limitation even according to respondent’s own contention, in any view of the matter we are finding that the complainant had sent registered notice on 07/01/2002 and asked society opponent no.1 to pay him his dues since he has tendered resignation and by letter dated 18/01/2002 society opponent no.1 refused to pay the dues and directed complainant that he should get settled his dues from Personal department of opponent no.3 since they had transferred the amount to opponent no.3-M/s.Godrej Consumer Products Ltd. since he had committed misappropriation of the employer’s fund. Even after receipt of this reply by opponent no.1, which is dated 18/01/2002, respondent had not filed consumer complaint upto 17/01/2004 because by letter dated 18/01/2002, opponent no.1 refused to pay any amount to the complainant even after receipt of notice sent by complainant by RPAD. So in any view of the matter we are finding that complaint as filed by the respondent in the District Consumer Disputes Redressal Forum against all the opponents was absolutely barred by limitation and on that count itself complaint should have been dismissed but even in the absence of plea of limitation raised but not discussed by District Consumer Disputes Redressal Forum, we are of the view that when the appellants had satisfied complainant’s dues on 22/09/2009, there was no propriety for the Ld.District Consumer Disputes Redressal Forum to proceed further with the complaint and pass further order directing appellants to pay amount of `30,900/- towards the interest to the complainant and to pay `5,000/- towards compensation for mental harassment and `500/- as costs. On the whole we are finding that the order passed by the District Consumer Disputes Redressal Forum in favour of the respondent is surely not sustainable in law. It is bad in law on all counts and, therefore, by allowing this appeal we are inclined to quash and set aside the order passed by the District Consumer Disputes Redressal Forum. Hence the following order:-
ORDER
Appeal is allowed.
Impugned order is quashed and set aside.
Consumer complaints stands dismissed.
Inform the parties accordingly.
Pronounced on 16th April, 2012.
