RAJ RANI COLD STORAGE AND ICE FACTORY vs MAHENDRA SINGH

THIS appeal has been filed by M/s. Raj Rani Cold Storage and Ice Factory, against the judgment and order dated 15.10.1993 passed by District Consumer Forum, Aligarh, in Complaint Case No. 255 of 1992. The facts of the case are, the complainant handed over 571 bags of potatoes for storage in the cold storage of the appellant in March and April, 1990 against receipts. The quantity of potatoes was weighing 489.24 quintals. The complainant took delivery of 344 bags in September and October, 1990 but at the time of delivery the complainant found that due to negligence on the part of cold storage, the consignment was not handled properly and was not properly kept cooled with the result 30% of the potatoes had become seeded and badly spoiled. In the process potatoes in 103 bags were wasted completely and the remaining potatoes could also fetch a lesser price by 25% of the prevailing market price. The market rate at that time was Rs. 200/- per quintal and by the aforesaid negligence the complainant was put to a loss of Rs. 46,250/-. On 21.10.1990 the complainant wanted to take back out of the remaining potatoes 132 bags but the opposite party delivered 43 bags less and said that the remaining bags were not traceable and would be delivered later-on. On 4.10.1990 the complainant was delivered only 15 more bags. THIS way 123 bags of potatoes were never delivered to the complainant and it came to the notice of complainant that these bags have been disposed off by the opposite party in the open market directly. In this manner the complainant had suffered a total loss of Rs. 70,250/-. The opposite party thus adopted unfair trade practices by mis-appropriating 123 bags of potatoes of the applicant. The complainant approached the opposite party several times but it did not make good the loss. A claim of Rs. 70,250/- alongwith interest at the Bank rate and compensation of Rs. 10,000/- was made before the District Consumer Forum alongwith the cost of proceeding.

IN the written statement before the District Consumer Forum, case of the opposite party was that the complainant used to keep his potatoes with the opposite party''s cold storage on rent on terms and conditions stipulated in the application for keeping the goods. The complainant was to pay interest @ 2% per month on the outstanding amount of rent. The consignment was to be taken back by the complainant on 15.11.1990 failing which the opposite party was at liberty to sell the consignment in the market on the market rate and the sale proceeds were to be adjusted in the account of the complainant. The complainant took back 457 bags of potatoes from the opposite party''s cold storage in quite safe and sound condition upto 16.11.1990 and on 16.11.1990 only 114 bags were left with the opposite party. On the same day the complainant was served with the notice to lift the potatoes. The potatoes were not spoiled and germinated. It was wrong to say that the opposite party received more bags of potatoes. The complainant had manipulated gate pass. Thus the complainant lifted 457 bags of potatoes out of 571 bags stored in the cold storage for which gate passes were issued by the opposite party. The hire charges for the year 89-90 and 90-91 in respect of the potatoes kept with the opposite party were due against the complainant. Charges of Rs. 10,940/- for the year 89-90 were debited to the account of the complainant in the year 90-91 as advance and an amount of Rs. 13,747/- was the hire charges for the year 1991 alongwith the interest of Rs. 1,041/-. Thus a total amount of Rs. 25,728/- was due against the complainant which the complainant failed to pay to the opposite party. The opposite party served registered notice dated 16.10.1990 informing the complainant to clear these charges and for failure to do so the remaining 114 bags of potatoes were to be sold in the open market and the proceeds were to be adjusted against the account of the complainant. The opposite party was compelled to sell the potatoes in Kanpur and an amount of Rs. 13,633/- was adjusted/deposited in the account of the complainant and after adjusting the amount, an amount of Rs. 12,804/- remained due against the complainant which he did not pay inspite of the notice dated 6.12.1990. The complainant had moved an application before the District Horticulture Officer, Aligarh and a correct reply was given by the opposite party to the application of the complainant. The complainant has lodged the claim just to digest the amount of opposite party. The District Consumer Forum after hearing both the parties decreed the complaint and directed the opposite party to pay Rs. 70,250/- with 10% interest from 15.11.1990 till the date of payment alongwith cost of Rs. 500/-.

Aggrieved of this order of the District Consumer Forum the appellant/opposite party has come in the appeal. We have heard the arguments of learned Counsels of both the parties. The learned Counsel for the appellant had argued that an outstanding amount as advance was due against the complainant. Notice for recovery was also sent and taking the advantage of the notice a false claim was filed by the complainant before District Consumer Forum. On the other hand Counsel for the respondent argued that 571 bags of potatoes were stored by the complainant out of which 123 bags of potatoes were never delivered and even the delivered potatoes were damaged to the extent of 30%. The potatoes were sold at under rate by the opposite party and no notice was served upon the complainant in regard to potatoes having become damaged and rotten.

WE have gone through the evidence on record. In the affidavit filed by Subhash Chandra, one of the partners of the cold storage, it has been stated that the appellant filed a Civil Suit No. 404/92, M/s. Raj Rani Cold Storage and Ice Factory v. Sri Mahendra Singh, against the respondent in the Court of Munsif, Aligarh for recovery of Rs. 19,235.88 P. plus interest and the cost. The civil suit was dismissed in default of the plaintiff. The appellant, therefore, filed restoration application which is registered as Misc. Case No. 49 of 1996 for restoration of the said suit and the said case is still pending for adjudication in the Court of Civil Judge, Aligarh. Copy of the restoration application and copy of the plaint in Original Suit No. 404/92 have also been enclosed alongwith the affidavit which are annexed as Annexures XIII and X respectively. Annexures III and III/2 are application forms for storing the potatoes in the cold storage. Annexures IV and V are the notices given by the opposite party to the complainant asking him to clear the outstanding dues. Annexure V indicates that the complainant is to pay Rs. 25,728/- to opposite party. Annexure VI is a registered notice sent to the complainant requesting him to clear the outstanding amount of Rs. 12,802/-. Annexure VIII is reply given by the opposite party to the District Horticulture Officer, Aligarh wherein it has been stated that Sri Mahendra Singh complainant stored 571 bags of potatoes in the cold storage and lifted 457 bags from 30.7.1990 to 4.11.1990 vide 8 gate passes and amount of Rs. 25,728/- towards rental charges, advance and interest was due on the complainant for which a notice was served. The amount was not cleared as such the remaining 114 bags of potatoes were sold in the market and an amount of Rs. 13,633/- was adjusted in his account and a notice dated 6.12.1990 has already been given for recovery of Rs. 12,804/-. A perusal of this record showing outstanding against the complainant, copy of notices sent to complainant and the explanation provided to the District Horticulture Officer, shows that this action was taken by the opposite party in 1990. The complaint was filed subsequently. It appears that District Consumer Forum did not look these aspects of the matter and came to a hurried conclusion. In view of the above facts we come to the conclusion that the subject-matter involved in the complaint relates to adjustment of account and the matter pertaining to the accounting process cannot be adjudicated before the District Forum. In the circumstances the appeal is liable to be allowed and the judgment and order of District Consumer Forum is liable to be set aside. Order

THE appeal is allowed and the judgment and order of District Consumer Forum are set aside and the complaint is dismissed. In the circumstances of the case there will be no order as to cost. Let copies of this order be made available to the parties as per rules. Appeal allowed.