DAYANAND SINGH MODSARA vs Ganpat Ram

THIS appeal under Section 15 of the C.P. Act, 1986 (the ''Act''), by a supplier of goods against the order of Distt. Forum, Jhunjhunu (Raj.) dated 6.1.1999 arises under the following circumstances.

RESPONDENT-complainant Nos. 1 to 3, are members of Scheduled Caste carrying on the profession of agriculture in a village of Jhunjhunu district. With a view to purchase a tractor with the agricultural loan to be obtained by them from the Co-operative Land Development Bank at Jhunjhunu, O.P.-respondent Nos. 4 and 5, they contacted the appellant, who is a dealer of "Swaraj" Tractors and carries on his said business in the business name and style of M/s. Shekhawati Auto Tractors and Spare Parts at Jhunjhunu. The appellant quoted the price at Rs. 2,53,090/- of a Swaraj 735 F.E. Tractor and the complainant deposited the quotation on 20.11.1995 with O.P.-respondent Nos. 4 and 5. A loan of Rs. 1,60,000/- was sanctioned to them on 30.11.1995 and they were required to deposit their share of price of tractor and other expenses amounting to Rs. 61,655/- and also to secure the debt with the mortgage of their immovable property. The complainant executed the mortgage deed of their immovable property in favour of respondent Nos. 4 and 5 on 6.12.1995 and also deposited a sum of Rs. 61,655/- with them on 11.12.1995. But despite their repeatedly visiting the offices of the Bank and the appellant for about two years the complainant got neither the delivery of any tractor nor any substantial information regarding the possibility of getting one. Finally they served a written notice upon respondent Nos. 4 and 5 and in reply to their notice the said respondents informed them vide letter dated 31.7.1997 that the Bank made a payment of Rs. 2,53,090/- to the appellant on 11.12.1995 towards purchase of 39 H.P. Swaraj Tractor by the complainants and that the appellant had informed the Bank Authorities that a Swaraj Tractor had been delivered to the complainants on 13.12.1995 vide Bill No. 290 dated 13.12.1995. On making further inquiry into the matter the complainant came to know that the appellant had sold the tractor mentioned in the aforesaid bill, to S/Shri Rati Ram and Mohan Singh, Jats of village Ratipura. The complainant apprised the Bank Authorities of such facts accordingly and thereupon an inquiry was initiated by the Bank against the appellant. On enquiry the Bank Authorities, through preliminary report of the Asstt. Registrar, Co-operative Societies dated 21.2.1998, came to know that the appellant did not deliver any tractor to the complainants against the loan sanctioned to them and misappropriated the same. In reply to the complaint filed against them, the appellant-O.P. No. 1 asserted that on receipt of the price of the tractor, as per quotation given by him, on 11.12.1995 from respondent Bank, he had delivered a Swaraj 735 F.E. Tractor with Chassis No. 95 K 3403845 and Engine No. 37.1301/95 H 3969 to the complainant on 12.12.1995 and obtained a receipt in respect thereto from them. Further, he delivered Bill No. 289 dated 12.12.1995 and sale certificate on Form No. 21 along with Form No. 22 of Punjab Tractors Ltd. to the complainants. It was further stated that a registration certificate was also subsequently issued by the Registration Authorities in complainant''s favour and that in their affidavit dated 12.2.1998 they acknowledged the delivery of the tractor to them. The appellant explained that he had sold another tractor to S/Shri Rati Ram and Mohan Singh vide Bill No. 290 having Chassis No. 39.1301/95 N 6392. It was contended that the preliminary report of the Asstt. Registrar, Co-operative Societies was incorrect and not reliable.

The version given by respondent Bank (respondent No. 2 is the Branch and respondent No. 3 is the main Bank) is that they had made payment of Rs. 2,05,300/- to the appellant on 11.12.1995 relating to appellant''s Bill No. 290 dated 13.12.1995 vide Bank Draft No. 0202981 and obtained receipts from the appellant as well as the complainants, that the vehicle was also got insured and a verification/utility certificate was also obtained. It was further averred that after issuing notice to the respondent Bank, the complainant had later on informed them on 22.8.1997 that he had obtained the delivery of the tractor from the appellant and that they no longer had any dispute with them.

HIGHLIGHTING the material contradictions in the versions, as obtained from the appellant and the respondent Bank with regard to the particulars of the tractor allegedly financed by the Bank and sold by the appellant to the complainants, the District Forum finally held that no tractor was ever delivered by the appellant to the complainants and that the verification/utility report, stated to have been submitted to the Bank by its employee, was totally false, that the appellant in collusion with Bank officials had managed to prepare false documents with a view to deprive the poor and illiterate agriculturists of their precious money without making delivery of any goods to them. The Forum, therefore, directed that : (i) the appellant shall deliver to the complainants a tractor of the same make, as mentioned in Bill No. 290 dated 13.12.1995, within 15 days failing which he would be liable to pay to the Bank within a period of next one month all the dues of the Bank, as are found outstanding against the complainants, in respect to the loan advanced for purchase of tractor, on the date of making such payment by him to the Bank; (ii) in case the appellant failed to deliver a new tractor to the complainants as per directions given above the appellant would pay a sum of Rs. 61,655/- with interest @ 18% p.a. from 11.12.1995 to them; (iii) the appellant and the Bank would be jointly and severally liable to pay Rs. 10,000/- to the complainants as compensation for mental agony and physical discomfort; (iv) the appellant and the Bank shall pay cost of litigation at Rs. 1,000/- to the complainant; and (v) the Bank shall be reimbursed for the loss, if any, caused to it under the transaction in question, by the erring and delinquent officials.

Aggrieved by the above order, the appellant has filed this appeal.

IT was not reported to us that the Bank had also felt aggrieved against the above order of the Forum and has filed an appeal against the same. In fact despite service of notice of hearing of the appeal on them, none appeared before us either on behalf of respondent No. 4 or respondent No. 5, to support or oppose the appeal. In view of the peculiar facts of the present appeal and clear and specific findings recorded, conclusions arrived at and directions given by the District Forum, we heard the learned Counsel for the parties at great length and examined the materials available on the record of the Forum, quite minutely and critically. It gives us no pleasure to say that in the facts and circumstances of this case and on study of the documents available on the record of the Forum there is no scope for us to interfere with the impugned order. In view of the positions taken by the parties in their respective versions, which we have referred to in sufficient detail and, therefore, do not consider it necessary to reproduce the same once again, the pertinent question that arises for serious consideration is : whether the appellant, after having, undisputedly, received the full consideration of the goods from the complainants through the Bank (respondent Nos. 4 and 5) on 11.12.1995, had delivered a tractor to them. In this behalf his assertion, in para 4 of the reply filed by him, was that he had sold the tractor to the complainants vide Bill No. 289 dated 12.12.1995 mentioning Chassis No. 95 K 3403845 and Engine No. 39.1301/95 H 3969 model "Swaraj" 735 F.E. No bill of the above mentioned number, date and mentioning the aforementioned Chassis and Engine numbers was, however, produced in support of such assertion. If the original bill be assumed to have been issued to the complainants, the duplicate or carbon copy, whichever would have been there in the counter foil or bill book with the appellant, could have been produced. That was not done.

A receipt dated 12.12.1995 purported to have been thumb marked by Ganpat, the father complainant, has been produced to prove the delivery of the tractor to him. Apart from the fact that this receipt, on the face of it, does not inspire confidence for more than one reasons, the Chassis and Engine numbers, as mentioned in this so - called receipt, do not tally with the Chassis and Engine numbers mentioned in the "Sale Certificate", stated to have been issued by the appellant to the complainants while making the alleged delivery of tractor to them. The "Sale Certificate" dated 13.12.1995 mentions Chassis No. as 95 K 360.6997 and Engine No. as 39.1301/95 N 6392 as against 95 K 3845 and 39.1301/95 H 3969 respectively mentioned in the so-called delivery receipt dated 12.12.1995. This obvious and material contradiction in the two documents clearly exposes the game-plan of the appellant and falsifies his version.

THE Registration Certificate prepared on 6/7.8.1997 but signed by the Registration Authority on 13.8.1997, the alleged affidavit of Ganpat, complainant dated 19.3.1998 and his undated application addressed to respondent No. 5 were obliviously prepared on the basis of the so-called delivery receipt, much after the complainant lodging complaint in the matter with the Minister for Co-operative Societies. A unique feature of these documents is that the show blurred thumb impressions purported to be of Ganpat complainant who happens to be the old father of his two young sons, the co-complainants. One of his son Chandagi Ram was quite active in all the stages of the proceedings from obtaining loan to the filing of the complaint. He has in the affidavit filed by him, denied the correctness of the documents filed by the appellant. Neither Chandagi Ram nor his brother Mani Ram is alleged to have made any such applications. Instead, they appear to be repeatedly visiting the offices of the appellant and the Bank and complaining to higher authorities in the matter. Had they obtained the delivery of a tractor in December, 1995 they would have not waited for getting the Registration Certificate as late as on 13.8.1997. Apart from the above, the case put forth by the Bank (respondent Nos. 4 and 5) was that the appellant had submitted to them Bill No. 290 dated 13.12.1995 in support of his assertion of having sold and delivered a tractor to the complainants after receipt of the sale-consideration thereof from the Bank on 11.12.1995. It may be recalled that the case of the appellant in para 4 of his reply was that the bill, through which he had sold the tractor to the complainants numbered, 289 and not 290. He had specifically mentioned that by Bill No. 290 dated 13.12.1995 another tractor had been sold by him to S/Sri Rati Ram and Mohan Singh s/o Sri Pitram Katewa. The bill numbering 289 dated 13.12.1995 was never produced by the appellant. However, two bills, bearing the same number 290 issued by the appellant on the same date 13.12.1995, have been placed on record of the Forum. One of them was prepared in the names of Rati Ram and Mohan Singh in English and the other in the name of the complainants in Hindi. Although both mention the same number of Engine but the Chassis number is different. The appellant did not deny of having issued these two bills. The bill bearing the name of the complainants was forwarded to the Bank to show that the tractor mentioned therein had been sold and delivered to the complainants in consideration of the loan obtained by them from the Bank. The other bill of the same number and date was, however, given to Rati Ram and Mohan Singh who, according to appellant''s own version, had actually purchased that tractor. The illiterate complainants were thus left in the jungle of wilderness, getting in return the burden of paying a huge loan to the Bank and the apprehension of loosing their bread-giving mortgaged agricultural land.

In view of the discussion made above, we hold that although the appellant had received the full consideration of the tractor from the complainants through respondent No. 4 but he did not deliver any tractor to them in return. The appellant had played a fraud not only on the complainants but also on the bank as a Financial Institution with the help of false and forged documents, which could have been possible only, with the active connivance of Bank officials including the one who had submitted the false verification report without ever contacting the complainants and knowing whether they were having any tractor or not.

IN the result we find not the least force in this appeal. INstead, we are clearly of the opinion that the appellant had resisted a genuine claim of the complainants and compelled them to enter into litigation. The appeal, therefore, deserves to be dismissed with compensatory costs to the complainants. Before parting with the file we would like to observe that the Bank had rightly instituted an enquiry into the matter and the preliminary enquiry report had pointed out at the above facts. But such enquiry appears to have been marred by filing false documents, purported to have been moved before the Bank Authorities by Ganpat complainant, in such enquiry. Looking to the fact that the complainants who are victims of this dubious transaction, are socially, economically and educationally backward and down-trodden and activities like the ones made by the appellant in this case with active and deliberate connivance of some of the erring and delinquent officials of respondent Nos. 4 and 5, cause erosion in the agricultural economy not only of the State but also of the country itself such nefarious activities are required to be seriously looked at by the authorities concerned. Besides causing undeserved and unmerited harassment and financial loss to the poor peasantry such acts of some delinquent officials of the Bank not only bring the Co-operative Banks into disrepute but also give a death blow to the co-operative movement in the State. In the result this appeal is dismissed with cost at Rs. 5,000/- payable to the complainants-respondents. A copy of this order shall be forwarded to the Registrar, Co-operative Societies for information and necessary action against the erring and delinquent officials of respondent Bank, if deemed proper. Appeal dismissed.