AVANTIKA vs M.D.SHARMA

THE opposite party before the District Forum has filed this appeal against the order dated 24.5.90 passed by the District Forum, Jaipur in Complaint Case No. 856/89. THE District Forum directed the opposite party to pay to the complainant a sum of Rs. 2,600/- together with interest from the date of the deposit until payment @ 12% p.a. simple. It has been alleged that opposite party framed a Sales Promotion Scheme ("the Scheme") for the purchase of Kelvinator refrigerator according to which Rs. 200/- were to be deposited every month and the refrigerator was to be made available by drawing lottery. THE complainant deposited a sum of Rs. 200/- and enrolled himself as a customer for the purchase of Kelvinator refrigerator. His group No. was G-19. THE complainant is said to have deposited Rs. 2,600/- in all from August, 1983 to August, 1984 @ Rs. 200/- per month. It has been alleged that besides the aforesaid amount deceased Chiranjilal Kabra also realised other instalments from the complainant but he is not in a position to produce the receipts. It was alleged that the opposite party may be directed to produce the register and submit details of the amounts deposited. In para 4 of the complaint it was alleged that Shri Chiranjilal Kabra who enrolled the complainant as a member of the above Scheme and used to take Rs. 200/- from him for deposit and pass the receipts. He, however, died all of a sudden on August, 1984 and thereafter no amount was deposited with the opposite party. It was alleged that the opposite party used to intimate the result of the lottery and also acknowledgement of the instalments. According to the complainant he was deposited 13 instalments as is evidenced from the receipt dated 4.8.1984. THE opposite party failed to make available the refrigerator inspite of various entreaties or return the amount of Rs. 2,600/- with interest. No reply was given. THE complainant sent a letter dated 14.9.1988 to the opposite party in this connection but that also did not bear any fruit. He, therefore, filed the complaint before the District Forum, Jaipur on 5.2.1989. Version of the case was submitted on 22.3.1990. It was pleaded that the complainant is not a customer of the opposite party. THE opposite party has no relationship whatsoever with it. THE person mentioned as Chiranjilal Kabra who had taken the amount, action should be taken by the complainant. He should institute a suit against the heirs of Chiranjilal. THE complaint for the recovery of the money and interest is not maintainable. An objection relating to limitation was also taken on the ground that the dispute relates to the year 1983 whereas the complaint had been filed on 5.2.1989. THE complainant submitted a reply (application) to the version of the case on 22.5.1990 reiterating the averments made in the complaint. In support of that affidavit of the complainant was submitted. With that photo stat copy of the letter dated 3.10.88 which was sent to the complainant by the opposite party was also produced. Besides the affidavit in support of the reply of the complainant (application) parties did not produce any evidence before the District Forum.

THE District Forum heard the arguments and passed the impugned order as aforesaid on 24.5.1990. THE complainant has submitted a reply to the appeal on 28.8.1990. In that reply besides the reliefs already sought in the complaint, certain other reliefs were also prayed for by the complainant-respondent. As nobody appeared on behalf of the appellant on 6.9.1990, we heard the learned Counsel for the respondent and proceeded under Rule 8(6) of the Consumer Protection (Raj.) Rules, 1987. However, on 12.10.1990 Shri Tarachand Jain Advocate appeared. On that day Mr. Jain submitted an application supported by affidavit praying that the documents which are submitted by him may be taken on record. THEreafter further arguments of Mr. B.K. Bhatnagar, learned Counsel for the appellant were heard. Two documents so submitted on behalf of the appellant and on which reliance was placed are (1) Terms and Conditions of the promotion scheme and (2) the entries from the register of the opposite party regarding the amounts received from the complainant. Entries of the register are eight in number, each entry being of Rs. 200/-. THEse eight instalments were paid from August, 1983 to March, 1984. THE complainant has produced four letters addressed to the complainant by the opposite party. THE last letter is dated 4.8.1984 in which it is written that your 13th instalment of Rs. 200/- is to be deposited with on or before 7th of every month, as per our terms and conditions. THE 13th draw for group ''G'' was to be opened on 8.8.1984 at 6.30 p.m. In the version of the case objection was taken by the opposite party that Circular Promotion Sales Scheme commenced from 1983 and Chapter I, II and IV of the Act came into force from 15.4.1987 and Chapter III came into force from 1.7.1987 and thereafter the District Forum was constituted in 1988. THE opposite party has placed on record the Terms and Conditions of the Circular Promotion Scheme (CPS). Condition No. 2 is that the monthly instalments to be paid by every month will be of Rs. 200/- for a period of 25 months. According to Condition No. 3 the monthly instalment was payable by 7th of each month in cash, demand draft, money order and not by cheque and that the receipt will be obtained in token of such payment. It is also mentioned that those who fail to pay on due dated shall be debarred from the draw till the entire amount with interest @ 18% is paid by them. According to the complainant, he started paying the instalment of Rs. 200/- from August, 1983 and paid until August, 1984. See para 3 of the complaint. It has also been stated in para 3 that some of the instalments had been paid by him to late Shri Chiranjilal Kabra but he has got no receipts with him. Be that as it may, under the Circular Promotion, Scheme 25 instalments were to be paid. THE complainant had paid some of the instalments as per his version upto August, 1984. THE last instalment was to be paid in August, 1985. THE cause of action for getting the amount back that has been deposited by the complainant with the opposite party accrued to him in August, 1985, for thereafter no instalment was payable. It may be stated that the month mentioned so far as the complainant is concerned for the payment of last instalment was August, 1985. He paid instalments upto August, 1984. THE complaint was filed on 5.2.1989. On that day admittedly the complainant could not institute a suit for the recovery of the amount under the Limitation Act, for the period had expired. Thus, the claim of the complainant arising out of the contract incorporated in the Circular Promotion Sales Scheme had become time barred under the Law of Limitation. As such the stale claim of the complainant should not have been entertained by the District Forum. Even when the 13th instalments was demanded from the complainant on 4.8.1984, thereafter nothing seems to have been done and if the complainant wanted to get the amount back, he should have instituted a suit within limitation. Even the last instalment being August, 1984 under the Scheme the complainant should have been filed his complaint in August, 1988. As stated above the complaint was filed on 5.2.1989. Viewing the question of limitation from any angle, the claim of the complainant should not have been entertained by the District Forum being claimed barred by Law of Limitation. THEre is another aspect of the case and that is this: that the complainant did not make any payment admittedly after August, 1984. He has stated in the complainant that after the payment of 13 instalments, no intimation about the lottery was received. THE complainant has been requesting the opposite party to take the amount and make available the refrigerator or return the amount of Rs. 2,600/- with interest but the complainant was not informed. THE letter dated 14.9.1988 cannot be availed of by the complainant for that was written after the limitation had already expired. THE matter does not rest at that. It will be useful to refer condition No. 6 of the Terms and Conditions of Scheme. It is as under :- "THE members who do not want to continue the membership will have to intimate the Management within 7 days in advance. A sum of Rs. 500/- will be adjusted towards incidental and cancellation charges out of the amount of monthly instalments already paid otherwise the amount falls short members. THE balance of any after adjusting Rs. 500/- will be refunded at the end of the final draw of the Scheme."

According to this if the complainant did not want to continue the membership, he should have intimated the Management within seven days in advance. After adjusting Rs. 500/- that have already been paid, the balance could be refunded to the complainant at the time of final draw of the Scheme. The final draw of the Scheme as per the Terms and Conditions was to be drawn on August 7, 1985. The complainant failed to resort to Condition No. 6, when he did not want to continue the membership as no amount was paid by him after August, 1984 though he has stated that some instalments, were paid to Chiranjilal Kabra regarding which he has no receipts and the entries are in the register. The last entry of the register of March, 1984. Even from this point of view the claim of the complainant had become barred by time. It may be stated that while awarding a sum of Rs. 2,600/- to the complainant, the District Forum lost sight to the Terms and Conditions of the Scheme which, inter alia, provides that payment without receipt will not be considered. It will serve no useful purpose to pursue this matter further. However, as on the basis of the Terms and Conditions of the Scheme which are signed by the complainant, they are taken on record for they are necessary for pronouncing the order in this case, which were not produced before the District Forum. We are of opinion that the claim of the complainant respondent is a stale claim and should not have been adjudicated on merits by the District Forum. In these circumstances it is difficult to sustain the direction of the District Forum to the opposite party-appellant to pay Rs. 2,600/- together with interest from the date of deposit until its return @ 12% simple. The order dated 24.5.1989 is, therefore, set aside. The complainant shall stand dismissed.

The appeal is allowed and the order dated 24.5.1989 passed by the District Forum, Jaipur in Complainant Case No. 856/89 is set aside. There will be no order as to costs. Appeal allowed.