Kripa Shankar Shukla vs PARSHURAM CHUAHAN

THIS is an appeal against the judgment and order dated 17.4.1997 passed by District Consumer Forum, Deoria in Complaint Case No. 269/1992.

THE facts of the case stated in brief are that the complainant purchased from opposite party bricks for which he advanced a sum of Rs. 3,000/- on 6.8.1991 and Rs. 8,000/- on 4.12. 1991 at the rate of Rs. 500/- per 1000 bricks. For this advance payment two receipts were issued by the Clerk of the brick kiln Sri Ram Bachan. THE opposite party/appellant has not delivered the bricks and has also not returned the money. Hence the complainant filed this complaint. The opposite party in its written version has alleged that these receipts were not issued by his Clerk. It is further alleged that Sri Ram Bachan was never his Munshi (Clerk).

The parties filed evidence in support of their respective contentions. After considering the same, the learned District Forum directed the opposite party to refund Rs. 11,000/- alongwith interest at the rate of 12% per annum from 4.12.1991 till the date of payment within a period of one month, failing which the rate of interest shall be payable at the rate of 15% per annum.

AGGRIEVED against the order of the learned District Forum, the opposite party has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the parties and have perused the evidence on record.

ACCORDING to learned Counsel for the appellant Sri Ram Bachan who has alleged to have issued two receipts for Rs. 3,000/- and Rs. 8,000/- was never employed by his brick kiln. The copies of the two receipts are on record which go to show that the amount was paid for purchase of bricks from Janta Ent Udyog. The main question for consideration in this appeal is whether Ram Bachan was the Clerk of the appellant''s brick kiln or not. Two affidavits filed by the Clerk Sri Ram Bachan are on record. One affidavit was filed by Sri Ram Bachan in Execution Case No. 19/1997 which arose out of the present complaint. In that affidavit which is dated 15.9.1997 it has been mentioned that he issued two receipts in the year 1991 for a sum of Rs. 11,000/- in all. This amount was paid by him to the owner of the brick kilm Sri Kripa Shankar Shukla. ACCORDING to him he was Clerk at the brick kilm of the appellant in the years 1990-91 and 1991-92. ACCORDING to him Kripa Shankar Shukla was not Munshi of the brick kiln of the appellant. The other affidavit of Sri Ram Bachan is dated 29.4.1997 filed in the same execution case. In this affidavit it is stated that he was never clerk at the brick kiln of the appellant and has never issued the receipts. Thus we find that the same person has filed two affidavits at two different stages in the execution proceedings. Thus on the basis of these two affidavits it cannot be said that Ram Bachan was the Clerk at the brick kiln of the appellant. Merely filing of an affidavit by a clerk or two other persons namely, Parshuram and Rama that the amount was paid in their presence and the receipts were also issued in their presence cannot be relied upon. The receipts in question do not bear signatures of these two persons. If they were present, then they could have also signed the receipts. There is one more factor which goes against the case of the complainant.

ACCORDING to complainant he paid a sum of Rs. 3,000/- on 6.8.1991 and another receipt is dated 4.12.1991 of Rs. 8,000/-. It does appeal to reason that when the brick for which payment was made on 6.8.1991 were not supplied by the appellant to the complainant, then why he advanced another amount of Rs. 8,000/- on 4.12.1991. The complainant should have insisted that the bricks of payment made on 6.8.1991 should be delivered first and then only he should have made the payment of other amount on 4.12.1991. It is not the case of the complainant the bricks were not available before 4.12.1991 and the appellant had promised to deliver these bricks alongwith the previous bricks for which payment was made on 4.12.1991. Thus this circumstance goes against the complainant. The amount of Rs. 3,000/- was not a small amount and the payment of the same could not have been ignored by the complainant.

IN the complaint the name of the opposite party has been mentioned as Kripa Shankar Shukla who is shown as proprietor of Janta Ent Udyog, the appellant. IN the receipts which have been filed by the complainant, the name of the proprietor has been shown as Ram Chandra Patel. Thus we find that even the name of the proprietor which has been mentioned in the complaint differs from the name of the proprietor which has been mentioned in the receipts. Thus we find that the case set up by the complainant is not correct and the learned District Forum has committed a mistake in decreeing the claim. The appeal is, therefore, liable to be allowed. Order The appeal is allowed and the judgment and order of the learned District Forum are set aside. The appellant shall get a cost of Rs. 2,000/- from the complainant. Let compliance of the order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Appeal allowed with costs.