BHARAT OVERSEAS CONSTRUCTION LTD. vs Kamlesh

THIS order shall dispose of 308 appeals arising out of identical decisions in separate complaints. The leading decision was recorded by the District Forum-II in Complaint Case No. 555/95 dated 28.11.95. It would be sufficient to refer to the facts in that complaint. The complainant therein, deposited Rs. 5,000/- with the opposite party for a period of 170 days bearing interest @ 14% p.a. against fixed deposit receipt dated 10th August, 94. The complainant surrendered the fixed deposit receipt duly discharged on maturity to enable the opposite party to pay the amount but to no purpose. The complainant, therefore, filed the said complaint which was contested. The opposite party did not deny its liability to pay the amount but raised a preliminary objection that the complaint was not maintainable under the Consumer Protection Act and the complainants remedy was only by filing a civil suit. The learned District Forum considered the case including the aforesaid preliminary objection and allowed the complaint directing the opposite party to refund the amount which fell due on maturity with interest @ 18% p.a. from 27.3.95 till the date of payment besides Rs.1,000/- as damages and costs within three months. It was further directed that in case of default the complainant was entitled to interest @ 24% p.a. on the entire sum payable under the order and that the amount would be recoverable by proceeding u/Section 27. Aggrieved, the opposite party has preferred these appeals.

MR. Harish Malhotra, learned Counsel for the appellant, repeated the contention put forward before District Forum-II, namely, that the present complaint was not maintainable under the Consumer Protection Act. The contention is based on a decision in the Consumer Unity and Protection Centre v. Luxmi Chand Bhagaji Ltd. & Ors., II (1992) CPJ 447 (NC). The case related to deposits made with the opposite party. The opposite party defaulted in repayment. The National Commission observed that the proper course to be adopted by the petitioner, in the Circumstances of the case, was to file a petition for winding up of the Company before the appropriate Court having jurisdiction under the Companies Act. In repelling the contention, the District Forum placed reliance on a later decision of the National Commission in Neela Vasant Raje v. Amogh Industries & Another, III (1993) CPJ 261 (NC). The complainant in Neela Vasant Raje''s case had deposited money with the opposite party. On maturity, the amount together With interest was not paid. The depositor filed a complaint. The District Forum and State Commission dismissed the complaint holding that the depositor was not a ''consumer'' and the opposite party was not rendering any service as contemplated under the Act. The complainant filed a revision before the National Commission. It was held that the depositor was a ''consumer'' and the opposite party was rendering service, and it was within the meaning of the Act by majority of 3:1. We find ourselves in agreement with the detailed reasons given by the District Forum in support of its conclusion that the said decision directly covered the present case. We may further point out that in a recent decision in K. Kasi Annapurna & Others v. Smt. Vamori Bharthi & Ors., I (1996) CPJ 43 (NC) the National Commission observed as follows: "It is well-settled that the failure to refund the amounts deposited with any financial institution on maturity will amount to deficiency in service." The next contention of Mr. Malhotra is that the opposite party failed to refund the amount not on account of any negligence on its part but in circumstances beyond its control. He relied on the following decisions in support of his contention: 1. Ramakanta Rath v. Asstt. Registrar of Co-operative Societies, Puri & Ors., II (1992) CPJ 877. 2. M/s. Ras Motors v. Aditya Jain, I (1992) CPJ 168 3. Air lndia v. Suganda Ravi Mashelkar I (1993) CPJ 63 (NC).

Sainik Service Station v. Dr. Badriprasad Purohit, II (1992) CPJ 553. We have gone through these decisions. None of them is applicable to the facts of the case. In Ramakant''s case (supra) certified copy had not been made available for three years on the ground that the records of which copies were to be given, were not available. It was held that non-availability of records was beyond the control of the Copy Issuing Authority. In the second case referred to above, failure to deliver motor-cycle by a stipulated date occurred on account of reasons beyond its control. In the third case, luggage could not be delivered on account of Gulf War and in the case last mentioned the petrol could not be given even though the complainant waited for a long time as the mob made it impossible to carry on the work of vending petrol which was beyond the control of the dealer. It will be seen that these decisions have no application to the facts of the present case and we, therefore, find no merit in this contention. Lastly, it was submitted that the entire assets of the appellant had been attached and inability to re-pay the amount arose out of the said default and not on account any malafide. With regard to this contention, we may point out that there is a clear distinction between passing of a decree or order on the one hand and its execution or enforcement on the other hand. The question of attachment of assets may be relevant at the stage of execution or enforcement of the order. Attachment of the assets furnishes no reason why decree or order for re-payment which is otherwise admittedly due, should not be passed. For these reasons, we find no merit in these appeals. The same are dismissed. The parties shall bear their own costs in the appeal. A copy of this order be communicated to both the parties as well as District Forum-II. A copy of this order be placed in the record of the connected appeals. Appeal dismissed.