DARSHANABEN CHANDRAKANT BHAI MEHTA vs HEMENDRABHAI VAKHARWALA

DARSHANABEN Chandrakantbhai Mehta, the proprietress of Microlink Computers, Surat by this appeal has bought under challenge the impugned judgment and order dated 30.6.1997 rendered in Complaint No. 307 of 1993 by the Consumer Disputes Redressal Forum, Surat, wherein the complaint filed against her by the respondent Hemendra R. Vakharwala came to be allowed directing her to refund the amount of Rs. 65,000/- after deducting 10% of the administration costs from the said amount with no order as to the costs.

THAT as regards the relevant facts of the case of the complainant and opponent, for the sake of brevity and convenience, instead of renarrating everything in extenso here, we would like to simply refer and rely upon the same as reproduced in para 1 and paras 2 to 6 respectively of the copy of the impugned judgment treating the same as the part of this judgment. The District Forum on the basis of the rival pleadings, raised following five points for consideration which have been resolved in favour of the complainant. They are : 1. Whether the Consumer Disputes Redressal Forum has jurisdiction ? 2. Whether the complaint is in time ? 3. Whether the complainant is entitled to refund of booking amount of Rs. 65,000/- ?

Whether HCL HP Limited is a necessary party ? 5. Whether the applicant proves that at the time of giving booking amount, it was stipulated by the applicant that if he does not receive the loan from the Bank, he will cancel the order and the opponent will refund the booking amount ?

Now, once again, for the sake of brevity and convenience it may be stated that .all these points have been exhaustively dealt with in paras 11,12,13 and 14 of the impugned judgment. Ms. Jariwala has raised the very same points for our reconsideration which, in our opinion, since they are suitably dealt with by the District Forum on the basis of the cogent and convincing reasons, we do not deem it necessary to unnecessarily repeat the same burdening the pages of this judgment. Quite suffice it to say that we are in general agreement with the same. However, it needs to be specially mentioned that Ms. Jariwala has also cited two authorities before us in support of her contention namely that since the alleged transaction between the appellant herein and the respondent was in nature of ''commercial purpose'', the respondent was not entitled to the protection under the Consumer Protection Act, 1986. The said two decisions are as follows : 1. Hajarimal Moonat v. M/s. Kumar Iron Works, III (1996) CPJ 158 (NC)=1997 (1) CPR 18. The head note of the same reads as under. "Consumer Protection Act, 1986- Section 21(b) Complainant placed order on respondent for supply of certain hardware items - Items supplied did not conform to specifications - District Forum dismissed complaint holding that goods purchased for commercial purpose - Appeal - State Commission took view that grievance of petitioner did not fall within ambit of expression complaint''-Revision - No satisfactory discussion whether intended purchase of goods by complainant was either for resale or for commercial purpose or only for carrying on small business for purpose of eking out his livelihood by way of self-employment - Order of District Forum and State Commission set aside - Case remanded to District Forum for fresh determination on aforesaid after affording opportunity to both sides."

Cheema Engineering Services (Mis.) v. Rajan Singh, II (1996) CPJ 88 (NC)=1997(1) CPR 30. The head note reads as under: "Consumer Protection Act, 1986 - Section 2(1)(d), Explanation - Consumer - Commercial purpose - Scope - Word ''self employment'' - Matter of evidence - Respondent using machine ''Brickman'' for clay preparation, brick moulding, brick drying and brick burning-Whether respondent has been using machine for earning his livelihood within the meaning of Explanation to Section 2(1)(d)? - It is matter of evidence - Burden is on respondent to prove them - ''Merely earning livelihood in commercial business'' does not mean that it is not for commercial purpose-Matter remitted to District Forum to record evidence and dispose it of in accordance with law."

NOW, neither of the aforesaid two decisions, in our opinion has any bearing whatsoever on the facts and circumstances of the present case, more particularly when the case of the complainant is more essentially based upon non-returning of the advance deposit to the tune of Rs. 65,000/- paid towards the purchase of the machine. Further, this is not the case of making a grievance against sale of defective goods because the goods in question was merely agreed to be sold and purchased on the condition of the complainant being ultimately able to secure the loan from the Bank which as the complaint shows he unfortunately could not raise constraining him to ask for the refund amount of Rs. 65,000/- paid by way of advance deposit only. Further, in facts of this case, we cannot be oblivious to the most glaring fact viz., that the respondent-complainant wanted to purchase DTP System from the appellant herein, the total price of which was Rs. 3,95,000/-. Accordingly, (as per the original record) the respondent- complainant paid two different cheques of different dates of Rs. 25,000/-, Rs. 20,000/- of 18.3.1992, 25.3.1992 drawn on the Syndicate Bank, Nanpura, Surat and also paid Rs. 20,000/- cash on 20.4.1992 totalling Rs. 65,000/-. This was paid as a ''booking advance''. At the time of booking said DTP System, it was made clear to the appellant herein and accordingly orally agreed upon that as the complainant was not in a position to pay at a time the entire cost- price of DTP System in question to the tune of Rs. 3,95,000/- he in the course of time would try to obtain financial assistance from Bank by way of loan, and in case if he failed to get the same, he would be cancelling the said order and in that case the appellant shall refund the booking deposit of Rs. 65,000/- within 15 days of the cancellation of order. NOW it appears that despite the efforts made to secure Bank loan, the respondent could not get the same and accordingly he was constrained to cancel orders requesting the appellant to return the amount of Rs. 65,000/-. It also further appears from the record that since despite the demand for refunding of Rs. 65,000 / - made by the respondent the appellant herein did not remit the same, on his behalf "Grahak Parishad, Surat" had issued Regd. A.D. Notice dated 27.1.1993, calling upon the appellant herein to refund the amount of Rs. 65,000/- as orally agreed upon. NOW, despite this notice also since the appellant persistently failed to return Rs. 65,000/-, the respondent was constrained to file complaint before the District Consumer Disputes Redressal Forum at Surat. Thus all these basic facts clearly indicate that the case of the complainant is purely and simply for the recovery of Rs. 65,000/- which he deposited by way of "booking advance" only and not the booking amount for the purchase of DTP System in three instalments, the last instalment being paid on 20.4.1992. It was neither disputed before the District Forum nor before this Commission that the appellant herein has replied the above notice dated 27.1.1993, disputing and challenging the case of the complainant that she had accepted Rs. 65,000/- in all by way of advance deposit which was to be refunded with interest thereon in case if he failed to secure Bank loan for the remaining amount. Under such tell-tale circumstances, if the District Forum on quite just and equitable proposition directed the appellant herein to refund Rs. 65,000/ - it cannot be said that the said order is in anyway unjust and illegal bringing about any miscarriage of justice to the appellant calling for any interference in this appeal. It also appears from the complaint that the appellant Company while entering into oral agreement with the complainant that the advance of Rs. 65,000/- shall be refunded within sixty days of the receipt of the cancellation advice alongwith interest @ 12% p.a. Further still, as alleged in the complaint, it is also not disputed before us that the complainant had written a letter dated 14.3.1992 requesting the appellant herein to cancel the booking and to refund the amount of Rs. 65,000/- being the amount of booking deposit. Despite these glaring facts, quite a feeble attempt has been made by the learned Advocate Ms. Jariwala that the appellant was not at all concerned with the return of the advance deposit as whatever amount was received by her was in turn passed on HCL HP Ltd. Company (not made party to the proceedings) of which she was merely a dealer. This argument, in our opinion has no substance as it is contrary to what has been submitted. The self-evident cause title in the memo of appeal itself admittedly tells us that the appellant Darshanaben Chandrakantbhai Mehta was/is admittedly proprietress of Microlink Computers. NOW, when the appellant is proprietress, then in that case, when she accepted the amount, it does not lie in her mouth now to turn round and say that unless the Company to which the money was transferred was made party, she is not accountable for the refund of the same. In this regard, at this stage it would be quite useful to refer to the stamped receipt dated 14.3.1992 issued in favour of "Unique Photogram" of which the respondent- complainant is the proprietor wherein the amount in question is accepted by the appellant herein for "Microlink Computers". Not only that but even if the Company was not joined as a party nonetheless, the appellant herein admittedly being a proprietress, or even otherwise as a dealer, contracting party on behalf of HCL HP Ltd. she can''t be permitted to run away from the ultimate liability to refund the amount of Rs. 65,000/- as agreed. Yes, the appellant would have been quite justified had indeed the cross A/c Payee cheque of Rs. 65,000/- was straightaway drawn in name and favour of HCL HP Ltd. and she was merely a collecting and forwarding agency on behalf of the said HCL HP Ltd. Company. But then that is not the case here. In fact if such mischievous double standard, trapping contentions are lightly accepted, the innocent gullible customers in some given cases may suffer irreparable losses and for them justice would be simply fruitless and distant cry in wilderness. If the dealer''s case is that it can enter into agreement, accept the amount on behalf of the manufacturer or distributor Company, then it being a party to the transaction cannot be permitted to plead no liability. In fact in such types of cases to keep the record clear, clean and indisputable while accepting the ''advance deposit'' towards future purchase of same goods, the dealer should insist upon executing a document in writing that it was accepting and ultimately passing on the money to the Company of which it was dealer and that it was not liable for any financial dispute or ultimate liability that may be fixed upon. This we feel is absolutely necessary to protect the interest of some innocent, gullible consumers as against some scheming dealers. The consumer needs some protection, and that is how the view taken by us protects it. Thus, in the alternative, even as a dealer, she is equally jointly and severally accountable for the refund of the deposit of Rs. 65,000/- in question. Further still, assuming for the sake of argument, that the appellant herein had passed on advance deposit of Rs. 65,000/- to HCL HP Ltd. then even merely because of that it does not mean that she would not get the said amount back from HCL HP Ltd. when there was no delivery of the said machine to the complainant. Under such circumstances if at all HCL HP Ltd. raises any dispute it is between the appellant herein and said HCL HP Ltd. Such type of cases before the Consumer Forums are always and invariably required to be tried summarily with sound commonsense, equity, justice and good conscience, more particularly, bearing in mind dominant purpose of the CP Act which is indisputably for the protection of the consumers. From this basic stand-point of the ''consumer jurisprudence'' also the District Forum has rightly allowed the complaint. It was next contended by Ms. Jariwala that the respondent-complainant had not produced any written agreement to show that in case if he failed to raise necessary Bank loan for the balance amount, money deposited by way of advance money shall be refunded to him with the interest as claimed. Now, no doubt, the complainant has not produced any such written agreement in support of his case. But then merely because no such written agreement is produced that by itself in facts and circumstances of the case would not matter rendering fatal the case of the complainant. In this regard we are of the opinion that if at all the complainant was not genuinely interested in purchasing the DTP System in question he would not have taken the risk of depositing as big an amount as that of Rs. 65,000 /- incurring loss of the interest thereupon. The District Forum has quite rightly appreciated and accepted the words of the complainant as dependable even in absence of the written agreement to the said effect. In all such cases the ultimate question is whether the evidence of the party pleading particular case is dependable or not. Now to lend assurance to its judicial conscience every Court wants some sort of satisfaction regarding the truthfulness and genuineness of the case. This can be had either by way of written document or some oral evidence. But then over and above these two modes of deriving satisfaction, there is yet one more important mode and that is the ''probability of the case'' - arising out of the attending circumstances of the case lending intrinsic corroborative assurance. In the instant case that assurance, satisfaction is very much there as discussed above. Further, in this regard it is required to be noted that, unless the Appellate Court in facts and circumstances of the case is satisfied that appreciation of evidence made by the District Forum is ex facie, perverse and illegal, merely because no corroborative documentary evidence was there in support of the case of the complainant that does not mean appeal can be allowed. Further still, merely because the Appellate Forum thinks that it is superior Forum that also does not automatically vest any arbitrary power to arrogantly interfere with every finding of fact irrespective of the perversity and illegality duly shown. In fact, it is a settled legal position that "even though an Appellate Court has same powers as any original Court, such powers have to be exercised with caution. When finding of fact have been recovered by the Trial Court mainly appreciating the oral evidence, they should not be ordinarily disturbed by the Appellate Court unless the approach of the Trial Court in appraisal of evidence appears materially erroneous". In our opinion the District Forum in facts and circumstances of the case having found the evidence on oath of the complainant quite probable and dependable and hence worthy of acting upon, merely because his case does found get reduced into writing by way of agreement and produced before the District Forum, we do not think that the appellant has made out any case to question and doubt the said satisfaction of the District Forum.

THEREAFTER, it was further contended by Ms. Jariwala that the complainant has not adduced any evidence to show that he had made any efforts to secure loans from the Bank and accordingly on this ground also the complaint must fail. Here also once again there is no substance in the submission. As already stated above, a person who went on depositing amount as big as that of Rs. 65,000/-, (which if kept with some Bank, taking fixed deposit or investing the same by purchasing saving certificates etc., would have surely yielded sizable interest) why should he take unnecessary risk of loosing the interest if indeed he was not really interested in purchasing the machine in question and for that purpose hopefully making some honest and sincere efforts to secure Bank assistance. This inherent circumstances of probability of ordinary human behavioural pattern leaning in favour of the complainant clearly lends quite needed intrinsic strength and corroboration to the say of the complainant on oath and accordingly though the complainant has not produced any contemporaneous material showing he had made efforts to secure Bank loan and still he did not get it, we do not doubt his words. As a matter of fact, once was accept the case of the complainant that there was an agreement to return the deposit of Rs. 65,000/- advanced by way of booking advance, in case he failed to raise Bank loan, then, in that case, the District Forum, prima facie was not justified in deducting 10% for administrative cost from the said amount of Rs. 65,000/- from the complainant and more particularly when it accepted the case of the complainant. In this view of the matter we have indeed no alternative but to quash and set aside the order of deducting 10% by way of the administrative cost from Rs. 65,000/-. Further, this complaint came to be filed in the year 1993. The consumer cases which are ordinarily required to be disposed of within 90 or 150 days (as the case may be) came to be decided after about four years, without any interest on principal amount of Rs. 65,000/- and also cost. Anyway, at present we are not concerned with this, since this particular part of order is not so far challenged by the complainant before us to express either way. Taking overall view of the matter, in our opinion, since the impugned judgment and order to the extent discussed above is just, legal and proper, it does not call for any interference at our hands and accordingly, the same deserves to be dismissed summarily. In the result, this appeal fails and is dismissed summarily. On 5.8.1997 after hearing the learned Advocate, this Commission when orally dismissed the appeal summarily, the learned Advocate appearing for the appellant requested the Commission to extend the ad- interim stay for further 5 weeks as the appellant intended to challenge this order before the National Commission. Permission was granted. Ad-interim stay granted on 28.7.1997 is accordingly extended and to continue till 3.9.1997.

THE office is directed to, (i) immediately return the R & P of the case to the District Forum, and (ii) to immediately communicate this order to Hemendrabhai Vakharwala, respondent- original complainant at his address. Appeal dismissed.