G.SAI BABU vs V.MADHAVA RAO

COUNSEL for the appellant is not present to day also. He was not present on 26.4.1999, 10.6.1999, 16.6.1999 and 19.7.1999. We heard the learned COUNSEL for the respondent/complainant.

THIS is an appeal preferred by the 2nd opposite party in O.P. No. 145 of 1996 questioning the order of the Hyderabad District Forum-II in that O.P. dated 13.10.1998 directing opposite parties 1, 2 and 4 in that O.P. to repay to the complainant Rs. 20,000/- with interest at 18% per annum from 1.5.1995 till repayment. The complaint was dismissed against opposite party No. 3 with costs of Rs. 200/- payable by the complainant to her. The respondent in the appeal is the complainant. Opposite parties 1 and 4 did not prefer any appeal against the order of the District Forum. The respondent/complainant filed cross-objections on 27.9.1999 but they are not maintainable as held by the National Commission in National Insurance Company Limited v. Om General Stores, III (1992) CPJ 65 (NC)=1986-1996 CONSUMER 2028 (NS); Poona Medical Foundation v. Maruti Rao L. Tikare, I (1995) CPJ 232 (NC)=1986-1996 CONSUMER 2656 (NS); The Executive Engineer O and M, Tamil Nadu Electricity Board v. K.R. Mani, III (1995) CPJ 46 (NC)=1986-1996 CONSUMER 2807 (NS); and N.M. Bhashyam v. Prabhakar Vasudev Joshi, I (1996) CPJ 337 (NC). In Poona Medical Foundation case (supra), the National Commission held as follows : "The Consumer Protection Act and the Rules framed thereunder do not provide for or envisage the filing of any memorandum of cross-objections and the provisions of the Civil Procedure Code (Order 41, Rule 22) enabling the filing of cross-objections have not been made applicable to Consumer Forums. Hence, this Commission has consistently taken the view that the respondent in an appeal filed under the Consumer Protection Act is not entitled to file any cross-objections. The memorandum of cross-objections will, therefore, stand rejected."

The record of the Hyderabad District Forum-II in O.P. No. 145 of 1996 is available with us. After carefully perusing the order of the District Forum in the O.P. and the record we do not find any ground for interfering with the order of the District Forum dated 13.10.1998.

THE relevant facts in brief have to be stated first. THE 1st opposite party in the O.P. is the Managing Director the 4th opposite party and the appellant is a Director. THE 4th opposite party was engaged in chit fund business. THE complainant was a subscriber of chit bearing No. D-CF-8 for a sum of Rs. 50,000/- run by the 4th opposite party. THE chit was for forty instalments of Rs. 1,250/- per month and it commenced on 1.1.1992 and was to close by 1.5.1995. THE complainant paid 16 instalments, i.e., upto April, 1993. According to the complainant in the auction held in March, 1993 he was the highest bidder but he was not paid the amount. He approached the opposite parties for payment of the chit amount several times and after negotiations through mediators the appellant gave a cheque dated 31.12.1994 for Rs. 22,935/- "as an amount settled towards his bid amount making deductions for non-payment of subscriptions from May, 1993 onwards without taking into account the interest due to him". When he presented the cheque it was dishonoured as there were no sufficient funds available. He then approached the District Forum claiming, among others, the bid amount of Rs. 30,000/- with interest @ 36% per annum less monthly subscriptions. We are not concerned in this appeal with the other claims made by the complainant against the opposite parties. The complaint was filed by the complainant on 1.2.1996. Before filing the complaint the complainant issued notice dated 6.3.1995 to the 1st and 2nd opposite parties through his Advocate. He stated therein that in March, 1993 the chit was auctioned in his favour and he was to be paid Rs. 30,000/-, but the same was not paid. He further stated as follows : "That when my client approached you through mediators and demanded payment, the 2nd of you (the appellant herein) gave him a cheque bearing No. 948100 dated 31.12.1994 drawn "Self" duly discharged for the sum of Rs. 22,935/- towards payment of the bid amount after making deductions for monthly subscriptions dues from client, contrary to the promises and undertaking by you, both, that interest on the bid amount would be paid and further subscriptions would be adjusted against the promised interest. That my client, in a state of helplessless, took the cheque in good faith and with a view to recover at least part amount due to him. That my client when approached the Bank for encashing the cheque found that there was hardly a sum of Rs. 300/- in the account..."

The complainant filed a xerox copy of the said notice (Ex. A-2) and the cheque (Ex. A-1), and xerox copy of the card addressed to him showing that his chit was Rs. 50,000/-, bid amount was Rs. 20,000/- and the prized amount was Rs. 30,000/-.

THE appellant filed version/counter dated 11.2.1997. He stated therein that it was not true that the chit was auctioned in favour of the complainant in the month of March, 1993 for Rs. 30,000/- and that it was not paid to him even after several requests. He denied the fact having issued cheque bearing No. 948100 dated 31.12.1994 for Rs. 23,935/- to the complainant towards settlement of the bid amount of the complainant after making deductions for non-payment of due subscriptions for the chit of May, 1993. He further stated as follows: "THE complainant happens to be a family member and as such he has very free movement in my house. THEre is a possibility of taking a cheque leaf from my drawer of my table and might have misused the cheque by forging my signatures. But the said cheque was not issued towards any bid amount as alleged by the complainant. I humbly submit that, in case of any payment to the complainant as alleged by the complainant, I ought to have issued cheque of M/s. Deffodils Chit Fund (P) Limited in the name of the complainant towards the chit amount, but not from my personal account that too on ''self''."

He also stated as follows : "5. Para 7 of the complaint is true to the extent of receiving notice from the Chambers of Mr. M.V.S. Prasad. Immediately I questioned to the complainant in regard to the genuinity of the contents of the notice. THE complainant admitted his mistake for getting issued a notice on me even after receiving Rs. 14,050/- on 1.2.1995, before our family friends Sri M.V. Narsing Rao and Sri Gopinath Shinde on 3.4.1995. It is also admitted that he is having claim only against P. Naresh Kumar for having received the deposits from the complainant, as such I did not feel necessary to reply to the notice. (THE underlined portion i.e., "on 3.4.1995," was handwritten and was inserted).

xxx xxx xxx 7....It is true that the complainant has paid 16 instalments @ Rs. 1,250/- p.m. including the dividend. Subsequently has become defaulter. As per the rules, whoever is the defaulter in paying the future instalments the subscriber is not entitled for any dividend. THE monthly amount was Rs. 825/- till 20 months from the date of commencement of the chit. In tenure of 16 months, the complainant has paid Rs. 1,250/- on 1st and 5th instalments. THE complainant has paid Rs. 14,050/- as follows : Rs. 1,250/- x 2= Rs. 2,5000.00 Rs. 825/- x 14= Rs. 11,550.00 Rs. 14,050.00 After issuance of the notice by the complainant, a Panchayat was convened again among our family members and friends namely Sri N.V. Narsing Rao, Sri Gopinath Shinde on 3.4.1995. On calculation, as mentioned above, I have already paid Rs. 14,050/- towards full and final settlement to the complainant and the complainant issued a receipt on 1.2.1995 for Rs. 14,050/-. A xerox copy of the receipt is filed herewith. As such I need not paid any amount to the complainant against the alleged chit. ("Rs. 875/-" was corrected as "Rs. 825"; "Rs. 14,750/- was corrected as Rs. 14,050/-"; "Rs. 875 x 14 = Rs. 12,250.00" was corrected as "Rs. 825 x 14 = Rs. 11,550.00"; "Rs. 14,750/-" was corrected as "Rs. 14,050/-" and the words "again" and "already" were handwritten".) Alongwith with this counter a xerox copy of the receipt dated 1.2.1995 was filed. Subsequently on 14.8.1997 the original receipt dated 1.2.1995 was filed. On 18.8.1998 the 1st opposite party filed his counter. He also denied that complainant succeeded in the auction held in March, 1993. The complainant filed an additional affidavit dated 14.4.1998, inter alia, stating as follows : "Admittedly I paid the sum of Rs. 14,050/- as chit subscription upto April, 1993. As agreed this amount with interest is to be refunded to me from May, 1993 till date of payment. My inquiries with the Registrar of Chits revealed that the respondents did not continue the chit for the full period. This Hon''ble Forum also in its judgment delivered in C.C. No. 178 of 1994 dealt with the same chit (in that case Group DCG - 8 Chit No. 13) whereas my case Group DCF-8 Chit No. 50. A copy of the said judgment is enclosed for perusal of the Hon''ble Forum. Thus as far as the refund of chit amount is concerned all the respondents are responsible."

THE District Forum did not enquire into the genuineness of the cheque dated 31.12.1994 for Rs. 22,935/- (Ex. A1) as the matter was being decided in the complainant''s favour on other material. THE District Forum disbelieved the version of the appellant that he paid Rs. 14,050/- in cash to the complainant on 1.2.1995. THE District Forum gave very cogent reasons for the same as follows : "We can conclude that the story of repayment in cash on settlement of the dispute is false on the basis of recitals of his counter. In paras 7 and 5 (or 5 ?) the sentence initially typed runs as follows : ''Immediately I questioned the complainant in regard to the genuinity of the contents of the notice. THE complainant admitted his mistake for getting issued a notice on me before our family friends Sri M.V. Narsing Rao and Sri Gopinath Shinde.'' "

After interpolation the sentence reads : "THE complainant admitted his mistake for getting a notice on me even after receiving Rs. 14,050/- on 1.2.1995 before family friends M.V. Narsing Rao and Sri Gopinath Shinde on 3.4.1995."

HE wants to say that amount was received on 1.2.1995 admitted before the friends on 3.4.1995. The last para of the counter reads as follows : "After issuance of the notice by the complainant, a Panchayat was convened (again) among our family members and friends, namely Sri N.V. Narsing Rao, Sri Gopinath Shinde on 3.4.1995. On calculation as mentioned above I have (already) paid Rs. 14,050/- towards full and final settlement to the complainant and the complainant issued a receipt on 1.2.1995 for Rs. 14,050/-."

What he wants to convey here is - there was a second Panchayat on 3.4.1995. The words "again" and "already" were written by hand while the rest of the matter was typed. It can also be noticed that the original sentence typed reads : "On calculation as mentioned above I have paid Rs. 14,050/- towards full and final settlement to the complainant and the complainant issued a receipt on the same day, i.e., on 3.4.1995." The words "the same day, i.e." were struck off by typing letters ''X'', similarly after the words on the figures "3.4.1995" were also struck off by typing letters ''X'' and the date 1.2.1995 was added in type in margin after the second portion of letters ''X''. What was initially typed was that a Panchayat was convened on 3.4.1995, account was settled, amount was paid and that the receipt was issued on the same day, i.e., on 3.4.1995. It was changed to a different version as if second Panchayat was convened on 3.4.1995 and that the amount was already paid on 1.2.1995. Unfortunately the struck off portion could be easily read, the altered sentence does not make a smooth reading of continuous expression. The opposite party-2 having started to say that the complainant admitted issuing an incorrect notice before his friends in para 7 went further to say that the amount was settled and paid under a receipt on 3.4.1995. But strangely he changed the version that he paid ''already'' on 1.2.1995 and a second Panchayat was convened before which the complainant admitted his mistake for issuing a notice inspite of receiving the amount before issuing notice. This volte-face shows the falsity of opposite party''s version. If the amount was settled and was paid on 1.2.1995 and a Panchayat was convened on 3.4.1995 after receiving a notice through an Advocate, in all probability there would be another document regarding the further settlement or admission of the complainant before the Panchayat. Neither there is any such document either on 3.4.1995 nor the receipt, Ex. B-1 dated 1.2.1995 said to have been executed was before any witnesses (though attestation is not compulsory for the receipt). While contending that the complainant admitted receipt of this money before N.V. Narsing Rao and Gopinath Shinde, opposite party-2 did not choose to obtain and file his affidavit to that effect. We are unable to believe the plea of discharge or payment of Rs. 14,050/- under Ex. B1.

We are inclined to agree with the District Forum. The explanation given for issuing self cheque dated 31.12.1994 for Rs. 22,935/- to the complainant is not satisfactorily explained by the appellant. The complainant gave details of that cheque in the legal notice dated 6.3.1995 got issued by him. The appellant did not reply to that notice; nor did the 1st opposite party, the Managing Director of the 4th opposite party Company. It is possible that at the time when that cheque was issued by the appellant he took the signature of the complainant on a blank receipt. The appellant had also not given any reply to the additional affidavit of the complainant dated 14.4.1998 and the order of the Ranga Reddy District Forum dated 19.9.1995 in C.D. No. 178 of 1994, a xerox copy of which was filed before the District Forum. It is not the case of the appellant that any appeal was preferred questioning that order. Neither the appellant nor the 1st opposite party denied the allegations of the complainant that they did not continue the chit for the full period. We are, therefore, satisfied that the District Forum was justified in directing the appellant and the opposite parties 1 and 4 to repay to the complainant Rs. 20,000/- together with interest at 18% per annum from 1.5.1995.

IN the result the appeal is dismissed with costs of Rs. 500/- which shall be paid within three months from today. Pursuant to our order in F.A. I.A. No. 1362 of 1998 dated 21.12.1998 the appellant deposited Rs. 33,500/-. It is open to the respondent/complainant to withdraw the said sum of Rs. 33,500/- by filing a cheque petition. The balance amount due and payable to the respondent/complainant pursuant to the order of the District Forum shall be paid by the appellant and opposite parties 1 and 4 in O.P. No. 145 of 1996 within three months from today. Appeal dismissed.