KURIAKOSE, OUR BANKERS vs VIJAYAKUMAR C.

THE appellant is the opposite party in O.P. No. 55/97 on the file of the Consumer Disputes Redressal Forum, Wynad. By the impugned order the Forum has directed the opposite party to pay the price of 23 gms. of gold as on 20.1.1997 less Rs. 7,000/- plus 18% interest on Rs. 7,000/- from 23.5.1996 to 20.1.1997 and a sum of Rs. 2,500/- as compensation with a further direction that the said amount shall be paid to the complainant within 30 days of the receipt of the order. THE District Forum allowed Rs. 500/- as cost in favour of the complainant. Aggrieved by the said order the opposite party has come up in appeal.

THE brief facts that are relevant for the decision are that the opposite party is a money lender and the complainant pledged ornaments worth 23 gms. with the opposite party and raised a loan on 23.5.1996. THE opposite party is the proprietor of the concern known as ''Our Bankers''. It was alleged by the complainant that on 16.2.1996, the opposite party sent a registered notice to the complainant asking him to take delivery of the ornaments within 15 days from the receipt of the said notice. On the next working day i.e., on 26.12.1996 the complainant went to the office of the opposite party and enquired about the notice. It is his allegation that the opposite party informed that it was a mistake committed by the office and the office assured him that there is six months'' time to reach the due date. After that period the complainant arranged money and met the opposite party on 20.1.1997 to take back the ornaments then the opposite party informed him that said ornaments had already been sold. THE allegation is that the opposite party has intentionally issued the notice just to sell the ornaments and appropriate the sale amount. On the aforesaid allegations the complainant prayed for a direction for delivery of the ornaments, compensation of Rs. 10,000/- and other incidental reliefs. Opposite party in his version denied the allegations in the complaint and maintained that he has not received any ornaments on pledge from the complainant nor has he given any loan to him. It is also contended by him since the opposite party refused to lend Rs. 500/- at the request of the complainant he has filed this complaint against him.

Before the Forum the complainant gave evidence as P.W. 1 and produced Exts. Al to A7 and also examined P.W. 2 and the opposite party examined himself as OPW 1.

LEARNED Counsel for the appellant contended that the District Forum had no jurisdiction to entertain such a complaint; and the District Forum did not properly appreciate the evidence particularly in the context of the claim made by the opposite party that, he has a register showing the lending of money which was not taken into consideration. Learned Counsel relied on Sub-section (2), Section 12 of the Money Lenders Act to maintain that the District Forum has no jurisdiction, as the said provision enjoins that no Court inferior to that of a Judicial Magistrate of the First Class shall try any offence punishable under the said Act. By this complaint, the complainant does not seek this Forum to take cognizance of any offence. Simply because Money Lenders Act makes certain offences punishable and enjoins that cognizance of the same shall be by a Court which is not inferior to the Court of judicial Magistrate, First Class, it does not mean that the jurisdiction of the Civil Court as well as that of the Forum to try cases, which they are competent to try, is barred. Therefore the arguments on the basis of said provision is not acceptable.

THE decision in 1996 NCJ 693 is relied on by learned Counsel in support of his contention that the District Forum had no jurisdiction, wherein it is held that determination of deception, fraud and cheating will not ordinarily be undertaken by the Consumer Disputes Redressal Forums. In that case the complainant had insured a mare for certain amount. Mare was operated upon and died due to excessive bleeding. Claim lodged was repudiated. THE District Forum held that the matter involved disputed question of fact relating to fraud and cheating and directed the complainant to approach the Civil Court. THEre was an appeal before the State Commission, in the revision before the National Commission the order of the State Commission was set aside and the National Commission restored the order of District Forum. There is no allegation of fraud as such in this case that the facts are simple. Complainant pledged certain ornaments with the opposite party who, according to the complainant, has illegally sold the ornaments. The opposite party said no such ornaments were pledged with him. The question is whether there is any deficiency in service. We do not consider the facts involved in this matter raise such complicated question of facts so as to refer the party to a Civil Court. As regards the merit of the claim, as indicated, the complainant was examined as P.W. 1. OPW 1 denied Ext. Al notice which was claimed by the complainant to be the notice issued to the complainant by the opposite party. Of course, that does not contain signature or seal. It is a printed notice. Exts. A6 and A7 are notices sent by opposite party to P.W. 2 and P.W. 3 respectively. These notices also do not contain signature or seal. In the context of the said features appearing in the evidence, the District Forum believed the case of P.W. 1 that A1 notice was in fact issued by the opposite party. Learned Counsel made a valiant attempt to find fault with the District Forum inasmuch as the District Forum did not exercise its power under Section 13(4)(ii). Section 13(4) confers on the District Forum the powers of Civil Court in C.P.C with respect to matters enumerated in Clauses (i) to (iv) therein. Sub-section (ii) concerns discovery and production of document. The argument of the learned Counsel is the complainant maintained that since he had a register for the disbursement of loan and receiving pledge, the District Forum should have by exercising the said power under Section 13(4)(ii) called upon the opposite party to produce the said document.

WE are unable to agree with the said submission, if a party has a document in his possession and control which he considers would support his case, it is his duty to produce the same. Lastly it was submitted that the compensation of Rs. 2,500/- awarded is on the higher side. WE do not consider that the compensation awarded is in any way disproportionate. WE dismiss the appeal. Appeal dismissed.