K.RAJENDIRAN @ DUBAI RAJENDRAN vs N.SENTHILKUMAR

THE foundational facts as culled out from the materials placed on record may, in brevity, be stated in order to understand the crux of the issue arising for consideration in this action.

THE complainant is one N. Senthilkumar, a job seeker. THE first opposite party is one R. Iyyappan and the second opposite party is one Dubai Rajendran @ K. Rajendiran. THE first and the second opposite parties are friends and known to each other. THE first opposite party was also a friend of the complainant. THE complainant sought the help of the 1st opposite party for procurement of a job for him in foreign shores through the medium of the 2nd opposite party who is arranging jobs in foreign shores for jobless persons. THE complainant was introduced by the 1st opposite party to the 2nd opposite party. THE 2nd opposite party promised to procure a job in a foreign shore for a consideration of Rs. 44,000/-. THE consideration has been passed on to the 2nd opposite party through the medium of the 1st opposite party. THE consideration of Rs. 44,000/- had been paid by the issuance of three drafts each for Rs. 10,000/- of even date viz., 15.12.1993 besides payment of cash in a sum of Rs. 14,000/- on the same date i.e., 15.12.1993. THE cash so paid was evidenced by the passing of a receipt dated 16.12.1993 by the 2nd opposite party. Despite payment of consideration for the services of the 2nd opposite party for the procurement of a job for the complainant in foreign shores, there was no dividend yielding, in the sense of securing a job for the complainant for pretty long. THE complainant as well as the 1st opposite party, it appears, pressurised the 2nd opposite party on his non-securing of a job for the complainant as promised. THE 2nd opposite party, it appears, had contact with one Mr. David through whom he was securing jobs for others for consideration. According to him, he passed on the consideration to the said Mr. David for procuring a job for the complainant and the efforts he made through the said Mr. David faced a colossal failure for the procurement of a job for the complainant in foreign shores. Unable to bear the pressure of the complainant and the 1st opposite party, in his inability to procure a job for the complainant, the 2nd opposite party thought fit to return the amount he had received through the medium of the 1st opposite party and consequently he issued a cheque for a sum of Rs. 5,000/- on 7.4.1997 towards part payment of the consideration he had received. The cheque so issued had been bounced.

This apart, he also had addressed an inland letter to the 1st opposite party. Though the letter had been addressed to the 1st opposite party, yet, on perusal of the contents of the letter, it is discernable that the letter had been written to the wife of the first opposite party. In that letter, it appears, he has promised to return back the amount to the complainant through the medium of the 1st opposite party before 15.12.1996, but he was unable to return back the amount as promised; as a consequence of his inability to collect fluid cash resources from any quarter whatever, he had stated in the said letter that positively he will return back the amount on or before 10.2.1997.

THE complainant, having been placed in a predicament situation of not procuring any job from the 2nd opposite party as promised by him and not also having received the cash payment promised to be paid by the 2nd opposite party through the medium of the first opposite party or his wife, had no other alternative but to institute proceedings in knocking at the doors of the Forum below on 26.2.1998 for certain reliefs as prayed for by him alleging deficiency in service on the part of the 2nd opposite party, in the sense of his not procuring the job he had promised notwithstanding the fact of payment of consideration of Rs. 44,000/-. The first opposite party filed a counter supporting the case of the complainant.

THE second opposite party, in pith and substance, would contend that there was no deficiency in service on his part. He would, however, admit the receipt of Rs. 44,000/- for the procurement of a job to the complainant in foreign shores. But what he would say is that he made arrangements with the aid of one Mr. David by paying him the cash he had received and the said Mr. David had not kept up his words in procuring a job for the complainant. In an event, he would say that the complaint, as instituted, is barred by limitation. The Forum below, after taking into consideration the materials placed on record, ultimately recorded a finding that there was deficiency in service on the part of the second opposite party. The Forum below also recorded a finding that the complaint, as instituted, is not barred by limitation. It is on this finding that the Forum below directed the 2nd opposite party to pay to the complainant a sum of Rs. 44,000/- with interest at 12% per annum from 7.3.1997 till the date of payment along with cost of Rs. 500/- within one month from the date of its order. Aggrieved by the order as above, the 2nd opposite party resorted to the present action by engaging a Counsel of his choice viz., learned Counsel Mr. P. Gopalan. On service of process, the 1st respondent/complainant entered appearance through a Counsel of his choice viz., learned Counsel Mr. S. Natarajan. The 2nd respondent/1st opposite party, despite service by way of publication, remained absent.

LEARNED Counsel Mr. P. Gopalan appearing for the appellant/2nd opposite party would raise the lone and sole point relatable to the question of limitation. The plea of limitation as raised by the 2nd opposite party in the version filed before the Forum below is founded upon Section 24-A of the Consumer Protection Act, 1986 (for short, "the Act"), in the sense that the complaint had been filed far beyond the period of limitation as prescribed under the said section from the date on which the cause of action had arisen. Despite having taken such a ground in the Forum below, the said learned Counsel would start arguing as if the complaint instituted by the complainant is for the recovery of an amount from the 2nd opposite party who was stated to have issued a receipt for the amount received. According to him, there was no acknowledgement of liability by the 2nd opposite party within the period of limitation of three years prescribed for the recovery of the amount of advance and, therefore, the claim as made in the complaint is barred by limitation. The argument so canvassed by the said learned Counsel is obviously fallacious. The action instituted by the complainant is not one for the recovery of the amount advanced to the 2nd opposite party as if it is a civil trial; but the action institued by the complainant is one for deficiency in service on the part of 2nd opposite party. The deficiency in service is relatable to procurement of a job for the complainant by him for a consideration of Rs. 44,000/-. There is no dispute that the consideration of Rs. 44,000/- had been paid by the complainant to the 2nd opposite party for a job to be procured for him in foreign shores. All these aspects of the matter were getting revealed from the materials placed on record, through the medium of the 1st opposite party and his wife. Since the 2nd opposite party was unable to procure a job for the complainant for pretty long, it appears, he was insisting the 1st opposite party and his wife for the refund of the money paid by him to the 2nd opposite party and the 1st opposite party and his wife had been taking all efforts to see that the amount of Rs. 44,000/- paid to the 2nd opposite party for the procurement of a job to the complainant in foreign shores was, somehow or the other, recovered. The efforts they had undertaken, is made crystal clear by Ex. B-2 letter written by the 2nd opposite party addressed to the 1st opposite party. Though the said letter was addressed to the 1st opposite party, by a perusal of the contents of the said letter, we are able to perceive that the letter had been written to the wife of the first opposite party. In the said letter he had clearly indicated that he was unable to procure the amount from any sources whatever despite so much of an effort he had taken and consequently he was unable to repay the amount as originally promised on 15.12.1996 and somehow or other he will see that the amount is paid on or before 10.2.1997. The letter is not dated. But nonetheless, we are able to perceive from the seal affixed to the said letter that the said letter had been posted on 11.12.1996 and the same had been received on 13.12.1996 by the addressee. It is the said letter which gives the cause of action for the complaint to be filed by the complainant. There was no agreement between the complainant and the 2nd opposite party that the job was to be procured by the 2nd opposite party to the complainant within a specific period of time so that the non-securing of a job within the time would tantamount to deficiency in service and thereby cause of action commenced for the institution of the complaint in the manner laid down under the salient provisions of Section 24-A of the Act. There being no prescribed time for the procurement of a job by the 2nd opposite party to the complainant, the complainant was hoping for the best thinking that somehow or the other the 2nd opposite party would procure him a job. That thing did not happen at all. The complainant, it appears, was made aware of the fact through the 1st opposite party or his wife that the 2nd opposite party being unable to procure a job, was trying his level best to return back the money to him. In such state of affairs, the cause of action could have commenced only on 13.12.1996, that is, the date on which Ex. B-2 letter had been received by the 1st opposite party R. Iyappan, the addressee. The complaint, admittedly has been instituted on 26.2.1998. As such, the complaint, as instituted, is well within the period of limitation as prescribed under Section 24-A of the Act.

WE will be failing in our duty if we do not refer to the two citations referred to by learned Counsel appearing for the appellant. He was drawing our attention to two citations emerging from the High Court of Judicature at Madras. The first decision is in the case of Rajasekaran Gramani v. Nagarathinammal & 14 Ors., 1993 (2) LW 380. The second decision is in the case of Sri Vijayalakshmi Art Productions rep. by its partners C. Venkataraju, G. Sivaraju & Smt. C. Ramalakshmi v. Vijaya Productions Pvt. Ltd. Vadapalani, 1996 (II) CTC 396. First of all, the two decisions are not decisions rendered under Section 24-A of the Act. Those decisions had been rendered in different contexts when considering the period of limitation in civil cases. Both these cases are inapplicable to the factual matrix of the present case. In fine, the appeal fails and the same is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. The order of the Forum below as confirmed by us is required to be complied with within one month from the date of receipt of our order or otherwise the complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal dismissed.