J.L. NAYAK vs Amarnath

THE District Forum, Udaipur, dismissed the complaint of the Complaint-appellant as barred by time. Against the dismissal of the complaint, he has filed this appeal questioning the correctness of the order. We may briefly state the facts leading to this appeal. A scheme for the sale of Vijay Super Scooter was floated by the opposite party-respondent through itself and its authorised agent. According to which Rs. 300/- instalment per month was to be deposited. THE complaint has alleged that 27 instalments in the names of 2 persons @ Rs. 300/- per month amounting to Rs. 16,200/- were deposited. Serial Nos. of the complainants membership was 45 and 75. It was alleged that the complaint is entitled to Rs. 16,200/- alongwith compensation and interest which according to him comes to Rs. 10,000/-. It was alleged that the opposite party did not make the scooter available. It also failed to refund the deposited amount. A criminal case was got registered at the Police Station, Dhanmandi, Udaipur. It may be state that the Scheme was floated in 1982 inasmuch as the first membership was obtained on 20.11.1982 and the second membership was obtained on 26.11.82 by depositing Rs. 300/- for each membership. THE Complainant has stated that according to the scheme after the completion of the required number of member the Scheme effective. THE second instalment was deposited for two membership on 7.4.1983 and the 27th instalment was deposited on 13.5.85. 28th instalment was not deposited and the contract was repudiated. THE complainant filed the complaint on 15.6.89 before the District Forum for directing the opposite party for the delivery of 2 scooters or refund of Rs. 16,200/- with interest and compensation.

NOTICE was issued to the opposite party- respondent. An objection raised that the complaint is barred by limitation and, therefore, the Redressal Forum has no jurisdiction to entertain and decide it. It was also pleaded that the complainant himself repudiated the contract and did not deposit the 28th instalment. The FIR lodged was false and that through the opposite party to disrepute and for that the opposite party alleged that Rs. 5,000/- were spent for conducting the proceedings and Rs. 15,000/- as damages for the loss in reputation. An objection was also taken that the matter involves complicated and complex question which can only be decided by a Civil Court. As the complaint was dismissed by the District Forum on the question of limitation we do not consider it necessary to state the other grounds of defence. The main defence taken was that the complainant should have been instituted within 3 years from 13.5.85 for the recovery of the amount when he repudiated the contract. The amount of 27 instalments was realised upto 13.5.85. The suit could be filed for the recovery of instalments latest by 12.5.88. But the complaint was filed on 15.6.89 when the remedy of the suit had become barred by time. In the complaint nothing was averred by the complainant as to on what ground the exemption from law of limitation is claimed. It appears that a letter dated 17.6.85 was written on behalf of the complainant at 2.50 p.m. stating that 28th instalment ought to have been received by 12-13 but it has not been received until the morning of the day. Second letter dated 22.6.85 was also written at 11.16 a.m. in which the opposite party wrote that 28th instalment should have been deposited in time and so if there is delay in delivering the scooter or for the return of the amount, the complainant himself is responsible. It appears that the complainant wrote a letter to the Home Minister, Rajasthan on 3.7.86 that he has been cheated by the opposite party and so action be taken against the persons of the said company and offence under Sec. 420 IPC may be registered and an enquiry may be started. Despite raising the objection, no steps were taken by the complainant to amend the complaint seeking exemption from law of limitation. It appears that on 11.9.90 learned Counsel for the complainant submitted a letter dated 6.9.86 alongwith the list. An endorsement was made on that letter by the learned Counsel for the opposite party. He wrote "Not Admitted". Thereafter the complainant wanted to adduce evidence to prove that letter. Various adjournments were given by the District Forum. The complainant examined himself on 22.3.91 and proved the signatures of Shri Satish Kumar Agarwal, Partner Amarnath & Sons. That letter was accepted by the complainant. According to that letter as per settlement Satish Kumar Agarwal''s father has deposited Rs. 5,200/- on 19.8.86 in the Bank Account and it was further stated that the cheque is ready. It is significant to note that the letter was written stating that the opposite party is ready to comply with the settlement dated 18.6.86. The District Forum did not examine this aspect of the case and concentrated on the question of limitation. The letter (Exhibit 1) was not taken note of simply on the ground that the complaint is not based on this letter and so the reliefs which the complainant has sought cannot be granted on the basis of the letter. The District Forum was also influenced by the fact that as settlement was arrived at between the parties, the last instalment was not deposited and so neither he (complainant) is entitled to two scooters nor to the refund of the deposited amount as the complainant is only entitled to take back the amount on the basis of the compromise. On the basis of this settlement the District Forum reached the conclusion that no advantage can be taken by the complainant of the letter Exhibit 1 and the complaint cannot be taken to be within limitation on its basis. It dismissed the complainant, hence this appeal.

The appellant sent a post-card dated 3.1.92. It was stated that neither he will be in a position to come nor will be able to send his representative and the appeal may be decided. Reference in this connection may be made to the order-sheet dated 15.1.92, It was ordered that he may be informed about the proceedings. That notice was not served as the post office reported "incomplete address return". We heard Mr. Kamal Nayan Srimal, learned Counsel for the opposite party-respondent. Keeping in view the post-card dated 3.1.92. Having considered the material on record, we have no hesitation to say that the approach made by the District Forum is wholly misconceived and it has resulted in mis-carriage of justice. The complainant-appellant has instituted the complaint for award of Rs. 16,200/- praying that for 27 instalments in regard to two members Rs. 300/- per instalment, were deposited. The complainant has also claimed interest and expenses and in the alternative for the delivery of the scooters. It has been admitted by the opposite party in the version of the case that Rs. 16,200/- were deposited by the complainant. As per the compromise/settlement it was agreed that a sum of Rs. 5,200/- which have been deposited in the bank account, the opposite party is ready to prepare a cheque, and it was also specifically stated that the opposite party is ready to comply with the settle ment dated 18.6.86. The complainant has examined himself and proved the signatures of the partners of the opposite party. No evidence in rebuttal was produced by the opposite party. The District Forum did not record a categorical finding whether letter dated 18.6.86 was written by Shri Satish Kumar Agarwal, partner of the opposite party. It may be stated that the complaint has not been filed on the basis of the settlement and the letter (Exhibit 1). Technical rules of pleadings are not applicable to the proceedings under the Act. The Redressal Forums constituted under the Act have to construe the pleadings liberally. It is correct that the complainant had claimed Rs. 16,200/-, the amount deposited by him in regard to the membership of the two persons for 27 instalments at the rate of Rs. 300/- p.m., but that does not preclude the District Forum from granting the relief for the lesser amount. If the letter dated 18.6.86 bears the signature of the partner of the opposite party it may be possible to fasten liability in regard to Rs. 5,200/-. It has to be remembered that the complaint was filed on 15.6.89 i.e. within 3 years from 18.6.86 and the letter is dated 6.9.86. On its basis it may be possible to grant relief to the complainant. The case set up by the complainant is that he has deposited 27 instalments in respect of 2 persons @ Rs.300/- amounting to Rs. 16,200/-.The contract was repudiated but the settlement was arrived at by which the opposite parties had agreed to pay the amount to the complainant. The District Forum should have disposed of the complaint after taking into consideration the entire material on record including the letter (Exhibit. 1).

THE opposite party has raised certain preliminary objections also in the version of the case viz. that the complainant is not a consumer, that for breach of contract for filing a suit, period of limitation is 3 years. As the complaint has been disposed of on the question of limitation and further that we have not agreed with the view taken by the District Forum while dismissing the complaint on the ground of limitation, the order of dismissal cannot be sustained. The District Forum will decide all the objections raised by the opposite party in the version of the case in accordance with law and also record its findings on the question of limitation keeping in view the settlement dated 18.6.86. If the complainant wants to amend the complaint on the basis of the settlement dated 18.6.86 and the letter Exhibit. 1 dated 6.9.86 it will be open to him to do so and after that the opposite party will be at liberty to file a reply. After resorting to the procedure laid down under Secs. 13 and 14(2) of the Act, the District Forum shall decide the complaint afresh in accordance with law after affording an opportunity of hearing to all concerned.

FOR the reasons aforesaid, we are constrained to allow this appeal and set aside the order dated 5.4.91 and remand the case (complaint) to the District FORum, Udaipur with a direction to take it on its file and decide it afresh keeping in view the observations made hereinabove in accordance with law. The appeal succeeds to the extent stated hereinabove. As the appellant has not appeared, there will be no order as to the costs of the appeal. Appeal allowed.