AMRIT LAL vs INSTANT GROWTH FUNDS (P) LTD

THIS order will dispose of Complaint No. 167,168,197, 264 of 1991 which contain common questions of law and fact.

THE facts in the order are being given from Complaint No. C-264/91. THE complainant deposited an amount of Rs. 1,70,000/- with the defendant as detailed below:- Check No. Amount Dated 203062 Rs. 50,000/ 10-10-90 203063 Rs. 50,000/ 10-10-90 203064 Rs. 50,000/ 10-10-90 203065 Rs. 20,000/ 10-10-90 All the cheques were drawn on the Bank of Tokyo Ltd., Parliament Street, New Delhi. THE respondent had agreed to pay interest on the amount @ 20% p.a. The respondents issued 12 cheques in advance of Rs. 17,000/- each, to be payable on 10th of each month from November '' 90 till October ''91. It is alleged that the three cheques pertaining to November'' 90 and December '' 90 and January'' 91 were honoured but, the other nine cheques were not honoured. It is consequently prayed that the respondent be directed to pay the balance amount of Rs. 1,53,000/- with interest @ 20% p.a. till the date of payment.

The petition has been contested by the respondent. It is inter-alia pleaded by them that the service of the respondent was not hired by the complainant for a consideration and consequently the complainant does not fall within the definition of the word ''consumer'' as defined in Section 2(1)(d)(ii) of the Consume Protection Act.'' (hereinafter referred to as the ''Act''). It is further pleaded that the complainant should start liquidation proceedings against the respondent and the present complaint in view of the provisions of the Companies Act, is not maintainable. The dispute it is next pleaded, does not fall within the ambit of ''consumer dispute'' as defined in Section 2(c) of the Act. It is also alleged that in view of a criminal complaint against the Directors of the Company having been filed by the complainant, the present proceedings could not be initiated against them.

ON merits it is admitted that the amount was deposited by the complainant with the respondent. However, it is averred, that it was due to the financial difficulties that the money was not repaid to him. Consequently it is prayed that the complaint be dismissed. The first contention that has been raised by the learned Counsel for the respondent is that a criminal complaint has been filed by the complainant against the Directors of the respondent. Therefore the present complaint is not maintainable. We have duly considered the contention but regret our inability to accept the same. A criminal complaint cannot be treated as a remedy for recovery of the amount. In case a criminal complaint has been filed by an aggrieved party against the respondent, that will not be a bar for the former to institute proceedings for recovery of the amount due to him from the latter. Consequently the contention of the Counsel for the respondent is rejected.

THE second question that arises for determination is as to whether the complainant in view of the provisions of the complaint in view of the provisions of the Companies Act, can file the complaint under the Act. Under the Companies Act a creditor prays for the winding up of the company, whereas under the Consumer Protection Act he prays for decree to recover, the amount. THEse two remedies are different remedies. If a person wants to avail of a remedy under the Consumer Protection Act, in our view he cannot be forced to file proceedings under the Companies Act. THE learned Counsel for the complainant has placed reliance on a judgment of the National Commission in Consumer Unity and Protection Centre v. Laxmi Chand Bagali Ltd. & Ors. (original petition No. 8 of 1989) decided on 17-10-89. In that case the complaint was filed by the voluntary consumer association stating that the respondent company had taken substantial amount by way of deposits by a large number of people belonging to the middle income group and poorer sections of society but had defaulted in the matter of payment of the amounts after they became due. It was prayed that action should be taken against the respondent company. From the above allegations it is evident that the complainant was not an individual and the complaint was not for recovery of an amount by the consumer. THE above said case is, therefore, distinguishable and the ratio in that case will not apply to the present case. Consequently we are of the opinion, that the present complaint is maintainable. The third question that arises for determination is whether the complainant is a consumer as defined in the Act. The contention of the learned Counsel for the respondent is that the respondent did not receive any consideration from the complainant for rendering service and therefore the complainant does not became consumer. We have considered the arguments but do not agree with the same. The word ''service'' has been defined in the Act as follows:- "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service of free of charge or under a contract of personal service. From a reading of the definition it is evident that if a person is providing any facilities in connection with banking that amounts to service. It is a common knowledge that the persons who are carrying on the business of banking, utilise" the amount deposited by the customers and earn high profits. Out of that they pay a parrot the money by way of "interest to the depositers. Thus the business of banking impliedly inclndes-element of consideration from the depositors. Therefore, we reject the contention of the Counsel for the respondent. The next question that arises for decision is whether the present dispute is a ''consumer dispute'' or not. The word ''consumer dispute'' has been defnied in Section 2(1)(e) of the Act. It reads as follows:- ''"Consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.'' It is true that the respondent has fairly admitted the receipt of the consideration. However, it disputes the right of the complainant to recover the amount of the deposit made by the complainant. The respondent is not ready to pay the amount even now. In the circumstances the complainant''s right to recover the amount immediately is disputed by the respondent. Therefore, the present dispute is a ''consumer dispute'' as defined in the Act.

THE last question that arises for determination is whether the complainant is entitled to recover the balance amount. It is not necessary to dilate upon this point as this matter has already been decided by us in Kailash Chand v. I.G.F. Leasing Pvt. Ltd. I (1992) CPJ 214 (C-124/91) decided on 18.11.91 M/s. I.G.F. Leasing and M/s. Instant Growth Fund are sister concerns and respondent No. 1 is the Managing Director of both the concerns. Agreements which were executed between the parties and the letters which were issued by the respondents to the complainants in both the cases are similar. For the reasons given in that case we are of the view that the complainant is entitled to recover the balance amount with interest from the respondent. In that case we allowed the interest @ 16% p.a. In the present case we also allow the interest to the complainant at the said rate.

THE complainant is entitled to recover rupees 1,40,896.00 with interest @ 16% p.a. from 16.10.91 till the date of payment as detailed in Annexure ''A''. Consequently, we accept the complaint with costs and direct the respondent to pay an amount of Rs. 1,40,896/- with interest @ 16% p.a. from the date of filing the complaint i.e. 16.10.91 till the date of payment to the complainant within a period of three months from the date of the order. Costs Rs. 2,000/-. C-168/91 Kailash Chand v. M/s Instant Growth Fund (P) I (1992) CPJ 214. 1. The complainant deposited a sum of Rs. 80,000/- with the respondent on 12.11.90 on interest @ 36% p.a. against receipt No. 920 issued by the respondent No. 1. The respondent issued 24 cheques of Rs. 3,666/- each payable from 12.11.92 till 4.5.91 as detailed below:- S. No. Date of cheque Number of the cheque Amount of the cheque 1. 12.11.90 086050 Rs. 3,666/- 2. 21.11.90 086051 Rs. 3,666/- 3. 28.11.90 086052 Rs. 3,666/- 4. 04.12.90 086029 Rs. 3,666/- 5. 12.12.90 086030 Rs. 3,666/- 6. 21.12.90 086031 Rs. 3,666/- 7. 28.12.90 086032 Rs. 3,666/- 8. 04.01.91 086033 Rs. 3,666/- 9. 12.01.91 086034 Rs. 3,666/- 10. 20.01.91 086035 Rs. 3,666/- 11. 28.01.91 086037 Rs. 3,666/- 12. 04.02.91 086038 Rs. 3,666/- 13. 12.02.91 086039 Rs. 3,666/- 14. 21.02.91 086040 Rs. 3,666/- 15. 28.02.91 086041 Rs. 3,666/- 16. 04.03.91 086042 Rs. 3,666/- 17. 12.03.91 086043 Rs. 3,666/- 18. 21.03.91 086044 Rs. 3,666/- 19. 28.03.91 086045 Rs. 3,666/- 20. 04.04.91 086046 Rs. 3,666/- 21. 12.02.91 086047 Rs. 3,666/- 22. 21.04.91 086048 Rs. 3,666/- 23. 28.04.91 086049 Rs. 3,666/- 24. 04.05.91 086053 Rs. 3,666/- 2. The complainant presented the cheques to the Bank. However, only first five cheques were encashed and the remaining 19 cheques were dishonoured with the remarks ''not arrangement for account closed''. Consequently the complainant has filed the complaint for recovery of an amount of rupees 1,00,728/-. The complaint has been contested by the respondents and similar pleas have been taken by them as have been taken in complaint Nos. 124/91 decided on 18.11.91 and No. 264/91. For the similar reasons we do not find any merit in the pleas of the respondent and consequently reject the same. The interest and the principal, which is due to the complainant as on 24.7.91 comes to Rs. 68,863/-. The deiails are given in Annexure ''A''. 3. Consequently we accept the complaint and direct the respondent to pay an amount of Rs. 68,925/- with interest @ 16% p.a. from 24.7.91 till the date of payment within three months. Costs Rs. 2,000/-. C-197191 Veena Bhatnagar v. J.G.F. Leasing 1. The complainant deposited an amount of Rs. One lac with the respondent on 29.11.90 and the respondent agreed to pay the interest on the deposit @ 36% p.a. The defendant issued advance 48 cheques of Rs. 3,000/- each to be paid each month and also issued a post-dated cheque of Rs. One lac plated 29.11.92 for the return of the capital. The cheques dated 29.5.91 and 29.6.91 respectively drawn by the defendant were not honoured by the Bank and returned with the remarks ''account closed''. Consequently the present complaint has been filed. 2. The complaint has been contested by the respondent on similar grounds on which the complaint Nos. 264/91 has been contested. We find that the pleas taken by the defendant for the reasons recorded above are without any merit. 3. The amount of instalment and principal amount which is due to the complainant on 28.8.91 comes to Rs. 93,820/-. The detailed statement is attached herewith as Annexure ''B'' 4. Consequently we accept the complaint with costs and direct the respondent to pay Rs. 96,306/- with interest @ 16% p.a. from 20.8.91 the date of institution of the complaint till the date of payment within three months from the date of the order. Costs Rs. 2,000/-. Annexure ''A'' Principal Amount Rs. 1,70,000.00 Interest for three months@ 16% p.a. Rs. 6,800.00 Total to be paid at the end of 3 months Rs. 1.76,800.00 Amount paid by the respondent Rs. 51,000.00 Balance to pay Rs. 1,25,800.00 Interest on the balance shown above at 16% from 10.1.91 to 16.10.91 i.e. 9 months and 6 days. Rs. 15,096.00 Total to pay Rs. 1,40,896.00 Annexure ''B'' Interest on Rs. 80,000/- @ 16% p.a. from 12.11.90 till 12.12.90 Rs. 1,066.00 Principal amount Rs. 80,000,00 Total Rs. 81,066.00 Amount received till 12.12.90 Rs. 18,330.00 Balance due for payment Rs. 62,736.00 Interest on Rs 62,675/- from 12.12.90 till 24.7.91 i.e 7 months and 12 days Rs. 6,189.00 Total Amount Due as on 24.7.91 Rs. 68,925.00 Annexure ''C'' Detailed statement of Account Interest on Rs One lac @ 16% p.a. from 29.11.90 to 29.5.91 Rs 8,000.00 Principal Amount Rs. 1,0,000.00 Total Amount Rs. 1,08,002.00 Amount re-paid by the respondent upto 29.5.91. Rs. 15,000.00 Balance Rs. 93,000.00 Interest on Rs. 93,000/- from 30.5.91 to 20.8.91 (2 months & 20 days) Rs. 3,306.00 Total Amount due Rs. 96,306.00 Case No. 167/91 1. Briefly the facts are that the complainant is a Secretary of CTZ Citizen Council, which is .registered-under the Societies Registration Act. The Society vide resolution dated 16.7.91 authorised its Secretary to file the present complaint on behalf of following four persons against the respondent:- 1. Shri Chander Bhan S/o Shri Kailash Chand, A-1/301, Safdarjung Enclave, New Delhi. 2. Shri Janeshwar Das S/o Shri Shiv Prashad, F-118, Rajouri Garden, New Delhi. 3. Shri Hari Chand S/o Shri Girdhar Lal A-1/301, Safdarjung Enclave, New Delhi. 4. Shri Naval Kishore S/o Shri Girdhar Lal A-88, Om Vihar, New Delhi. 2. They deposited the following amounts with the respondent on the dates mentioned therein. S.No. Date Amount Deposited Remarks Shri Chander Bhan:- 1. 1.9.1989 Rs. 15,000/- Amount Received. 2. 25.9.1989 Rs. 9,000/- Only interest received. 3. 28.10.1989 Rs. 6,000/- Amount received. 4. 20.12.89 Rs. 7,000/- Principal Amount received. 5. 6.3.1990 Rs. 16,000/- 6. 29.3.1990 Rs. 5,000/- Shri Janeshwar Dass :- 1. 5.5.1990 Rs. 18,000/- Shri Hari Chand :- 1. Rs. 26,000/- Rs. 13,000/- on a/c of return of Principal Amt received. 2. 5.5.90 Rs. 18,000/- Shri Naval Kishore :- 1. 15.9.1989 Rs. 15,000/- Amount received. 2. 18.9.1989 Rs. 2,000/- Amount received. 3. 30.9.1989 Rs. 10,000/- Interest of Rs. 3,600/- received. 4. 28.10.1989 Rs. 18,000/- 5. 5.5.1990 Rs. 18,000/- 6. 5.5.1990 Rs. 18,000/- 7. 10.12.1989 Rs. 10,000/- Amount received. 3. It is alleged that the respondent issued cheques towards payment of the principal and interest. It is further alleged that except the payment as shown above, no other payment has been received from the respondent. Now the following amounts are due from the respondents. S. No. Date of Cheque Cheque No. Amount Remarks Shri Chander Bhan 1. 25.9.1990 610631 Rs. Rs. 9,000/- Towards Principal Amounts 2. 20.12.1990 0706178 Rs. 2,500/- Towards Interest 3. 6.3.1991 070668 Rs. 5,260/- Towards Interest 4. 6.3.91 070669 Rs. 16,000/- Towards Principal Amount 5. 29.3.91 070676 Rs. 1,800/- Towards interest. 6. 29.3.91 070677 Rs. 5,000/- Towards Principal Amount. Shri Janeshwar Das :- 1. 5.5.91 070683 Rs. 18,000/- Towards Principal Amount 2. 5.5.91 070682 Rs. 6,480/- Towards Interest. Shri. Hari Chand 1. 15.12.90 088308 Rs. 3,250/- Towards Part Principal Amount 2. 24.12.90 088309 Rs. 3,250/- -do- 3. 31.12.90 088310 Rs. 3,250/- -do- 4. 7.1.91 088311 Rs. 3,250/- -do- 5. 5.5.91 070681 Rs. 18,000/- Towards Amount Principal 6. 5.5.91 070680 Rs. 6,480/- Towards Interest. Shri Naval Kishore :- 1. 30.9.90 610645 Rs. 10,000/- Towards Principal Amount 2. 28.10.90 201122 Rs. 6,480/- Towards interest. 3. 28.10.90 201123 Rs. 18,000/- Towards Principal Amount 4. 5.5.91 070679 Rs. 18,000/- -do- 5. 5.5.91 070678 Rs. 6,480/- Towards interest. Complaint accepted.