BIRENDER KUMAR SINHA vs DHARMA NATH CHOUDHARY

THIS appeal arises out of the judgment and order dated 14.12.1996 passed in Complaint Case No. 107/1995 on the file of the District Forum, Hazaribagh concluding portion of the order reads thus : "We, therefore, direct O.P. Nos. 1 and 2 to refund back Rs. 1,99,000/- to the complainant with interest at the rate of Rs. 18% payable from 18.10.1994 till the date of final realisation of the amount positively within a period of one month from the date of this order failing which, the provisions of Section 27 of the Act would be invoked for compliance." The opposite party Nos. 1 and 2 in the Court below are the Managing Director and Chairman of Basera India Housing Finance and Developers Ltd. and 3 and 4 are their agents. The facts of this case are not very much in serious disputes rather stand admitted. The appellant being the Managing Director of the Company aforesaid Finance Co. received a Bank draft of Rs. 1,50,000/- from the complainant on 19.9.1994 and thereafter a sum of Rs. 49,000/- was paid in cash on 17.10.1994 to the appellant Managing Director and the Chairman of the Company through their agents namely opposite parties 3 and 4 on the assurance that the aforesaid Finance Company will provide the vehicle to the complainant. The Company neither supplied the truck nor returned the amount.

THE opposite parties 3 and 4 namely the agents of the Company specifically alleged in their show cause that the Bank Draft and cash were received by the Managing Director as well as Chairman of the Company in their presence and have issued the receipt thereof and hence they are in no way responsible for the lapses on the part of the Managing Director as well as Chairman of the Company. In spite of notice having been published in the newspapers neither they appeared nor any show cause was filed on their behalf. Learned District Forum after going through the pleadings of the parties has passed the order as stated above. Learned Counsel appearing on behalf of the appellant has challenged the order mainly on the ground that the complainant is not consumer within the meaning of the Act, inasmuch as the instant transaction is commercial in nature, adjudication whereof is outside the purview of the Consumer Court and further no notice was ever served during the pendency of the proceeding in the Court below. It is further stated that appellant resigned from the post of Managing Director on 15.12.1994 and, as such, he cannot be held responsible for the default on the part of the Company.

In opposition, however, the learned Counsel for the respondent submits that the complainant, being a poor man, intends to purchase a Tata Made Dumpher for earning livelihood for himself and his family members and hence the complainant is a consumer within the meaning of the Act. The appellant has received the Bank draft and the cash amount when he was admittedly the Managing Director of the Company. It is submitted that the complainant, on the assurance of the opposite parties 1 and 2 including their agents that they will supply the Tata Made Dumpher, purchased a Bank draft for Rs. 1,50,000/- in favour of Basera India Housing Developers Limited. Subsequently, Rs. 49,000/- was also paid in cash to the opposite party appellant who issued a money receipt duly signed in token of having received the amount and assured that the vehicle will be supplied within a month and if not, the amount will be returned to the complainant. Accordingly, the opposite parties 1 and 2 handed over 12 post-dated cheques to the complainant. When the vehicle was not supplied to him, the complainant presented these cheques to the Bank which was dishonoured, as a result, the complainant has to approach the District Forum, for redressal of his grievance.

IT may be mentioned here that the receipt of the aforesaid amount has neither been denied nor they have denied to have issued 12 post-dated cheques to the complainant. The opposite party agents, however, specifically stated that the complainant, no doubt, met them and asked for the vehicle and accordingly the complainant was brought to the appellant as well as Chairman of the Company who received the draft as well as cash amount and issued the cheques and, as such, they are not, in any way, responsible for the lapses on the part of the Company and/or its Managing Director and Chairman. Having regard to the pleadings of the parties and taking the facts and circumstances of this case into consideration, we are of the view that the complainant is a consumer within the meaning of Section 2(1)(d) of the Act and further on a false representation made by the appellant as well as Chairman of the Company, the complainant was forced to part with his hard earned money on an assurance of providing him a Tata Made Dumpher for earning his livelihood. It may be mentioned here that liability to pay the amount is not denied which stands admitted that the post-dated cheques issued to the complainant has been dishonoured. Admittedly, the appellant was the Managing Director of the Company till 15.12.1994 when he is alleged to have been relieved from the post but he has accepted the amount from the complainant on 19.9.1994 which is well within the tenure as Managing Director of the Company. In that view of the matter, he cannot escape from his liability to pay the amount which he has admittedly received from the complainant. The appellant as well as the Chairman of the Company are equally liable to return the amount with interest and in our view the District Forum has rightly passed the order which cannot be interfered with in the facts and circumstances of the case. In the result, the appeal fails and is dismissed with a cost assessed at Rs. 10,000/- (Rupees ten thousand).

BEFORE parting with the order, we direct the appellant as well as the Chairman of the Company opposite party in the Court below to comply with the order within three weeks from the date of receipt and/or production of copy of this order, failing which, the complainant will be at liberty to execute the order in accordance with law and in that event, the complainant will be entitled to further interest at the rate of 18% from the date of this order till the date of realisation in addition to what has been allowed by the District Forum. Appeal dismissed.