L.C.CHANDGOTIYA vs NORTHERN LEASING AND INDUSTRIES LTD.

BY this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" hereinafter), the complainants before the District Forum question the legality and correctness of the order dated 16.3.1990 passed by the District Forum, Jaipur in Complaint Case No. 190/89 by which their complaint was dismissed. Complainant No. 1 is father of complainant No. 2. The complaint dated 27.5.1989 was filed by them against Northern Leasing Ltd., Kanpur (opposite party no. 1) and Shri M.D. Sampat (Share''s agent of Opposite Party No. 1) was impleaded as Opposite Party No. 2. The case of the complainants as set up is that on 29.8.1985 on being asked by the Agent of opposite party No. 1, they negotiated with him for the purchase of 500 shares each @ Rs. 10/- per share. Rs. 2/- per share was settled as premium. The complainants sent Rs. 2,500.00 by Bank overdraft to opposite party No. 1 through opposite party No. 2. The amount of premium of Rs. 1,000.00 each for each of the complainants i.e. Rs. 2,000.00 were paid to opposite party No. 2 on 29/8/1985 against receipts. Opposite party No. 2 passed receipt to them. On the basis of the application for allotment of shares instead of 500 shares to each of the complainants, 250 shares to each of them were allotted. In all thus 500 shares were allotted. Opposite party No. 1 made a demand of Rs. 1,250.00 from each of the complainants. The complainants sent Rs. 1,250/- on 12/3/1986 by draft and cheque to opposite party No. 1. The draft and the cheque for Rs. 1,250.00 each were received by Opposite Party No. 1, intimation about which was received. The case of the complainants is that they did not receive shares in respect of the amounts that were sent subsequently on 12/3/1986. The complainant has prayed that a sum of Rs. 8,992 may be awarded to them from opposite party No. 1. The details of this amount are mentioned in para 7 of the complaint. It was also prayed that as opposite party No, 2 has misappropriated the amount of Rs. 2,500.00 he may also be directed to refund the same with interest. With the complaint photostat copies of the receipts, allotment letters and letters written by complainant No. 1 and opposite party No. 1, notice etc. were submitted. Opposite party No. 1 filed version of the case on August 9, 1989 contesting the complaint. Besides raising the objection regarding the maintainability of the complaint under the Act it was averred that opposite party No. 2 was or is not its agent or an employee or representative. It was pleaded that a premium of Rs. 1,000/- was not received from opposite party No. 2 or any person at all. Authority of opposite party No. 2 to collect the premium was disputed. It was submitted that the complainants applied for shares and they were allotted. An objection was taken that the dispute does not relate to the goods sold or delivered but it relates to the purchase of shares by the complainants which is outside the scope of the Act. Opposite party No. 2 refused to accept the notice. Nobody appeared on behalf of Opposite party No. 2 before the District Forum. Both the complainants filed a joint affidavit dated 26.9.1989. It is surprising that the affidavit was sworn before the notary public on 11.9.1989. The complaint was dismissed in default on 20.10.1989. On the application of the complainants it was restored to its original number vide order dated 14.3.1989. The District Forum heard the arguments and by the impugned order dated 16.3.90 dismissed the complaint against both the opposite parties. Hence this appeal, by the complainants.

IT was presumed vide order sheet dated 8/8/1990 that service was sufficient on respondent No. 1 (opposite party No. 1). Service was also considered sufficient on the basis of the endorsement of the "refusal" made by opposite party No. 2. We heard Mr. S.K. Tailor, learned Counsel for the appellants and carefully considered the record and the order under appeal in the light of the contentions raised by the learned Counsel for the appellants before us. Learned Counsel appearing for the appellants contended that the District Forum went completely wrong when it dismissed the complaint. No exception can be taken to the finding of the District Forum when it held that the shares are "goods" within the meaning of the "goods" as defined in Section 2(1)(i) of the Act. According to Section 2(1)(i) goods means goods as defined in the Sale of Goods Act, 1930. Section 2(7) of the Sale of Goods Act defines goods. IT is as under : - "Goods" means every kind of movable property other than actionable claims and money, and includes stocks and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under contract of Sale". Stocks and shares are included in the definition of the goods. In these circumstances the complaint in regard to the shares lay before the District Forum.

The next question that arises is whether opposite party No. 1 has allotted the shares to the complainants in regard to the amount which was received by it. There is photostat copy of the allotment letter dated 31.3.1986 on record which is from opposite party No. 1. In the acknowledgement slip it is mentioned that a sum of Rs. 1,250/- was received from each of the complainants. The very letter contains a column regarding shares applied and shares allotted. It is mentioned therein that shares applied are 500 and shares allotted are 250. It is, thus, clear that opposite party No. 1 had allotted to each of the complainants 250 shares. Thus in all 500 shares were allotted though shares applied by each of the complainants were 500. A perusal of paras 2 and 3 of the complaint shows.that Rs. 2,500/- of each of the complainants remained with opposite party No, 1. In other words a sum of Rs. 5,000/- on behalf of both the complainants remained with it. Admittedly 500 shares were allotted to the complainants. It inevitably follows that whatever amount was with opposite party No. 1, it had allotted shares to the complainants. In these circumstances it cannot be said that service rendered by opposite party No. 1 to the complainants suffered from any deficiency as envisaged by Section 2(1)(g) of the Act. The case of the complainants as disclosed in the complaint is that a sum of Rs. 2,000/- (i.e. Rs. 1,000/- of each of the complainants) was paid to opposite party No. 2 on 29.8.1985 against receipt. Thus for allotment of 500 shares Rs. 1,000/- were paid by each of the complainants @ Rs. 2/- per share. The District Forum opined that the complainants had not succeeded in establishing on record as to what premium rate was settled and, therefore, it is not proved at what rate opposite party No. 2 was paid Rs. 2,000/- by both the complainants. It took note of the receipts passed by opposite party No. 2 in favour of each of the complainants. But these receipts do not reveal as to the rate of the premium for the allotment of shares. On the basis of these facts the District Forum came to the conclusion that there was no basis in the complaint against opposite party No. 2. Opposite party No. 2 neither appeared before the District Forum nor before us in appeal. As per the averment made in the complaint opposite party No. 2 represented himself to be agent of opposite party No. 1. This was denied by opposite party No. 1 in its version of the case. In the complaint it is written.

THUS the case of the complainants qua opposite party No. 2 is of perpetrating fraud as he misappropriated Rs. 2,000/- for the allotment of the shares. In these circumstances, it cannot be said that there was any deficiency of service, so far as opposite party No. 2 to whom a sum of Rs. 2,000/- was paid. It is at the most a case of fraud and misappropriation of money regarding which Redressal Forums constituted under the Act cannot grant any relief. The District Forum was right and justified in dismissing the complaint for the return of Rs. 2,000/- with interest from opposite party No. 2 to the complainants, for, no relief as prayed for by the complainants can be granted under Section 14(1) of the Act. We, however, make it clear that nothing said hereinabove will prejudicially affect the rights of the complainants, if otherwise available to pursue any other remedy in a competent court/ authority if permissible under the law against opposite party No. 2 for the return of Rs. 2,000.00. The result is that there is no merit in this appeal. It is hereby dismissed. There will be no order as to costs. Appeal dismissed.