S.S.AUTO HIRE PURCHASE PRIVATE LIMITED vs PREM SWARUP VAISH

THE Appeal No. A-413/SC of 2000 has been filed by S.S. Auto Hire Purchase Private Limited, Sudarshan Market, Budaun and Sri Surendra Singh r/o Mohalla Brahampura against the judgment and order dated 24.9.1997 passed by District Consumer Forum, Budaun in Complaint Case No. 368/96.

REVISION No. R-41/SC of 2000 has been filed by the same parties against the order passed by the Single Member of the District Consumer Forum, Budaun in the same Complaint Case No. 368/96. Since facts of the case contained in appeal and revision relate to the same complaint i.e. Complaint Case No. 368/96, both the appeal and revision are being taken up together for adjudication.

Briefly stated the facts of the case are that the complainants Sri Prem Swarup Vaish, Smt. Mithlesh Kumari, Sanjiv Kumar Vaish, Raj Kumar, Sharmil, and Surbhi lodged a claim before the District Consumer Forum alleging that S.S. Auto Hire Purchase Private Limited is a Private Limited Company, Headqarter at Budaun and acts as Non-Banking Finance Company. The opposite party Nos. 2 and 3 Sri Surendra Singh and Sri Suresh Chandra Gupta are the Directors and are responsible for the affairs of the said Company. On the request of the opposite parties, the complainants on different dates deposited various amounts in the Company and the FDRs were issued. Accordingly FDR Nos. 2920, 2919, 5722, 5619 were issued on 4.6.1990, 4.6.1990, 6.8.1993, 17.6.1993, and 17.6.1993 respectively. The amount deposited was Rs. 5,000/-, Rs. 5,000/-, Rs. 1,000/-, and Rs. 1,000/- respectively. The payment of the FDRs was due on 3.6.1993, 3.6.1993, 6.8.1996, and 17.6.1996. The complainants Sharmila and Sanjiv Kumar Vaish deposited an amount of Rs. 2,500/- vide FDR No. 5565, Rs. 2,500/- vide FDR No. 5566, Rs. 3,500/- vide FDR No. 5562, Rs. 2,500/- vide FDR No. 5563 and Rs. 3,000/- vide FDR No. 5564 in the joint names of Kr. Sharmila and Sanjiv Kumar Vaish. All these FDRs were due for payment on 7.5.1995. The complainant Prem Swarup Vaish deposited an amount of Rs. 20,000/- and further an amount of Rs. 20,000/- vide FDR Nos. 3289 and 3287 on 3.12.1990 and 5.12.1990 respectively. The date of maturity was 2.12.1993 and 4.12.1993 respectively. The complainants Surbhi and Sanjiv Kumar Vaish deposited an amount of Rs. 9,000/- on 7.5.1993 for a period of two years vide FDR No. 5561 and the date of the maturity of payment was 7.5.1995. The rate of interest was 14% per annum. Till November, 1995, as per the terms of the FDR, the rate of interest continued to be paid by the opposite party but thereafter the opposite party stopped paying the interest which was to be paid monthly. With lots of difficulties, the interest for December, 1995 was paid in August, 1996 and the opposite party promised to pay the maturity amount of the FDR alongwith the interest in the first week of October, 1996. When the payment was not made inspite of the request from time-to-time, it was found by the complainant that the opposite parties are not making the payment of the above-said FDRs alongwith the interest. On 18.10.1996 the opposite parties refused to make the said payments. The claim was, therefore, lodged with the District Consumer Forum for the entire amount deposited and the interest at the rate of 14% as stipulated in the FDRs from the dates due.

THE opposite parties did not contest the case and the District Consumer Forum after ex-parte hearing ordered that the entire amount deposited in the terms of FDR mentioned in the judgment alongwith interest due be refunded to the complainant and each complainant was awarded Rs. 500/- as damage. THE Forum also ordered that the interest at the rate of 24% per annum be paid to the each complainant from 19.10.1996 till the date of payment. On 5.5.1999 the opposite parties Sri Surendra Singh and S.S. Auto Hire Purchase Private Limited filed a restoration application before the District Consumer Forum, Budaun claimed for setting aside the order dated 24.9.1997 in the complaint case referred to above. In the restoration application, it was stated that no information was received in regard to the complaint case by the opposite parties and information was received only on 3.5.1999 when the opposite party Sri Surendra Singh had come to the Forum in connection with some other case. The address of the opposite party has been wrongly given in the complaint case. No notice or registered letter was received by the opposite party Sri Surendra Singh. The opposite party had gone to Ludhiana, Punjab to see his ailing brother and only on his return he came to know of the judgment and order of the District Forum. The publication made in the local daily Dainik Jagaran regarding the complaint case had not come to his notice because he was away in Punjab and the ex-parte order so passed be set aside and case be heard on merits again.

THE complainant contested the case for restoration before the District Forum stating that restoration application is not maintainable. THE opposite party Sri Surendra Singh has admitted that he is the Director of S.S. Auto Hire Purchase Private Limited and the other opposite party Sri Suresh Chandra Gupta had admitted the liability of the FDRs and the amount deposited by the complainants. He has also alleged that the opposite parties have conspired with a view to thwart proceedings in the execution of the decree passed by the District Forum arising out of the above referred judgment and order. It was not a fact that the opposite party Sri Surendra Singh was out of station. The District Consumer Forum heard the restoration application and ordered that the restoration application was not maintainable. Aggrieved of the order passed by the District Consumer Forum in the complaint case, the opposite party has come in appeal and has challenged the correctness of the order.

IN the memo of appeal, it has been stated that no summons in the complaint case were sent by the District Consumer Forum to the appellants nor the appellant received any notices. It was pointed out that the wrong address was mentioned in the title clause of the complaint, the appellant Sri Surendra Singh lives in Mohalla Brahampura, Budaun whereas the complaint shows that he resides in Mohalla Jawaharpuri, Budaun. The certified copy of the judgment was not made available to the appellant and, therefore, the appellant was prevented from appearing and resisting the complaint before the District Forum. The complaint was filed jointly without taking the permission of the District Forum which should have been rejected out-right and the learned District Forum erred in recording its finding against the specific pleas raised in the restoration application. There was no liability whatsoever on the part of the appellants for the alleged FDRs in view of the letter written by complainant Sri Suresh Chandra Gupta who is the opposite party in the complaint case. It has also been stated that cause of action was not the same as the FDRs were issued in different names and on different dates and the complaint is barred by limitation.

REVISION petition of the opposite parties S.S. Auto Hire Purchase Private Limited and Sri Surendra Singh is against the order dated 28.11.1996 passed by District Consumer Forum, Budaun in the complaint case. It has been alleged that no permission was sought for filing the joint complaint by the complainants, who were the different persons having different causes of action and, therefore, the judgment and subsequent orders passed by the District Consumer Forum are illegal. The complainants have not signed the application seeking the permission for filing the joint complaint and the same has been filed by one Sri Sanjeev Kumar Vaish in the capacity of an Advocate and, therefore, the order dated 28.11.1996 is not an order in the eye of law as it has been passed by the Single Member of District Forum and aggrieved of this order, the revision has been filed. In the appeal, on behalf of the respondents who were the complainants in the complaint case an affidavit was filed stating that the appeal is not maintainable because it is time barred. The appeal has been filed against the judgment and order of the District Forum dated 24.9.1997 and another order of the same Forum dated 12.1.2000 which is in regard to the dismissal of the restoration application and in such cases the appeal is not maintainable. The appeal is time-barred because in the memo of appeal, the opposite party has stated that he came to know of the order first time on 23.4.1999 and he inspected the records on 4.5.1999 and instituted the restoration application on 5.9.1999. Therefore, there is no occasion for the opposite party in stating that he came to know about the order on 7.2.2000. The opposite party did not appear in the District Forum inspite of the knowledge that a complaint is pending against him. Summons were issued but because of the mala fide intention he did not appear before the Forum. The applicant does not reside in Jawaharpuri. The situation of the residence of the complainant is such that gate of the residence opens in Jawaharpuri Mohalla and the residence actually terminates in Mohalla Brahampura. The process of service came back to the remark that the opposite party is not available in spite of contracts made from time-to-time and, therefore, the process is being returned. In respect of the S.S. Auto Hire Purchase Private Limited also the process was returned by the Postman with the remark that the recepients of the letter does not make himself available, therefore, the process is being returned. The liability of the amount of fixed deposits alongwith the interest etc. has been accepted by the opposite party No. 3 Sri Suresh Chandra Gupta who is respondent No. 7 in the appeal. The documents in regard to the permission for filing joint appeal, restoration application and other documents filed by the parties have also been annexed with the affidavit.

We have heard the learned Counsels for the two parties. The learned Counsel for the appellant has argued that the order allowing for filing of the joint complaint is not the duly constituted order. It has been signed by the one Member. The service was not made on the opposite parties. It has been also argued that the address given in complaint is of Mohalla Jawaharpuri by the complainant and not of Brahampura. The opposite party came to know of the decision of the complaint case when he had gone to the District Forum in connection with some other hearing. In this connection, he has cited the Hon''ble Supreme Court''s judgment III (1995) CPJ 28 (SC). It was also argued that the complaint was not maintainable before the District Forum as it has been filed jointly for different causes of action as the amounts were deposited by the different complainants on different dates. The learned Counsel has stated that the certified copy of the judgment and order of the District Forum was not supplied to the opposite party free of cost and since he came to know of the decision in the case only in the year 1999. The appeal is deemed to be not barred by limitation.

ON the other hand, the learned Counsel for the respondents has argued that the appellant has challenged the judgment and order of the District Forum dated 24.9.1997 and the order dated 12.1.2000 passed in the restoration application. The order passed on 12.1.2000 cannot be appealed against and, therefore, the appeal is not maintainable. Instead of filing the appeal, a revision should have been filed against the order dated 12.1.2000. The appeal is time-barred as the order of District Forum is dated 24.9.1997 and the appeal filed is highly belated by time. It has also been argued that the appellant had the knowledge of the notices issued by the District Consumer Forum and one of the Directors who is an opposite party, Sri Suresh Chandra Gupta had admitted the liability and had agreed for payment of the amounts deposited by the complainants. While preferring the restoration application before the District Consumer Forum, this fact was concealed. Thus, service was sufficient as one of the opposite parties had admitted the liability and about the appellants, it would be evident from the notings made by the Postman on the notice issued that they have been deliberately avoiding the service. The plea of the opposite party''s Counsel is that the notices were sent on wrong address does not hold good as Mohallas Jawaharpuri and Brahampura are connected to each other and the residence of the opposite party Sri Surendra Singh has the frontage in Jawaharpuri Mohalla. The point in regard to the limitation will be examined first. An examination of the evidence placed on record will show that M/s. S.S. Auto Hire Purchase Private Limited had issued FDRs in favour of the complainants. The FDRs are the annexure of the affidavit filed by the respondents and the same were also filed before the District Forum. A perusal of the FDR goes to show that two Directors of the Company, Sri Surendra Singh and Sri Suresh Chandra Gupta signed the FDR in their capacity as Directors of the Private Limited Finance Company. Both these Directors are the opposite parties in the case. One of the Directors accepted the liability as has been discussed in the judgment and order of the District Forum. The notice sent to the opposite party Sri Surendra Singh has the noting of the Postman concerned that the recepient of the letter does not meet and, therefore, the notice was sent back. It has been admitted by the appellant that a notice was also published in the daily paper Dainik Jagaran. Dainik Jagaran is a daily paper of wide circulation. It cannot be believed that the complainant who is the Director of the Company would be away for such a long time from the Headquarters of the Company. Therefore, the service of the notice published through the daily news paper Dainik Jagaran should be considered sufficient. The application for restoration and setting aside the ex-parte order was made on 2.11.1999. More than two years had already lapsed. Therefore, the appeal is time-barred and there is no solid ground to condone the delay in filing of appeal.

THE other point raised by the learned Counsel for the appellant is that the notice was sent on the wrong address but on the notice sent by the Forum, it has nowhere been mentioned that the opposite party is not traceable because of the wrong address. THErefore, we have no hesitation in believing that the Mohallas Brahampura and Jawaharpuri are inter-connected and it does not make any material difference as to what was the exact location given in the notice. THE opposite party No. 2 is the Director of the Finance Company of opposite party No. 1 and must be a well-known person. THErefore, we do not find any reason to believe that the wrong address was the reason for not contesting the case on the part of the said opposite party. In the circumstances, the ruling cited by the learned Counsel for the appellant, III (1995) CPJ 28 (SC) (supra), does not apply in this case and we hold that the appeal is barred by limitation. The point raised by the learned Counsel that the opposite party No. 2 is not liable for payment of FDR cannot be accepted on the face of it simply on the ground that the respondent No. 7 who is the opposite party No. 3 in the complaint case has admitted the liability and had promised to make the payment in the near future. In a Limited Company of which the opposite party No. 2 is the Director, he cannot be absolved of the responsibility of the payment simply because the other opposite party is also a signatory of the FDR. It is the joint and several responsibility of the Directors of the Company to discharge the liability which they failed to do. The learned Counsel for the appellant has argued that the order allowing the complainants to file the joint complaint was not a duly constituted order. A perusal of the papers will go to show that this point was not raised in the application for restoration filed by the opposite party Sri Surendra Singh. This point was not specifically raised in the appeal. It is merely mentioned in the grounds of appeal that "because the learned District Forum erred in allowing the alleged complaint, as the alleged complaint filed jointly without seeking permission of the District Forum was not maintainable and ought to have been rejected out-rightly". It has not been mentioned in the ground that the permission to file the complaint jointly has been granted by a Single Member. This plea was raised in the review petition. Once the plea was not taken before the District Forum while preferring the application for setting aside the ex-parte order, the same cannot be accepted at this stage in view of the above facts.

THE arguments of the learned Counsel for appellant to the effect that the complaint has been filed on various causes of action and, therefore, the complaint was not maintainable cannot be accepted. A perusal of the papers on record will show that members of the same family deposited various amounts on various dates with the opposite parties and on the date of maturity of each FDR, the payment was not made and subsequently one of the Directors also accepted the liability, since the cause of action was similar and the nature of the transactions in depositing of the amount from time-to-time by various persons of the same family with the same Non-Banking Finance Company, is similar, the case was rightly maintainable before the District Consumer Forum. THE learned Forum has examined the matter involved in the complaint on the basis of merit and the judgment is well-reasoned.

IN view of the circumstances discussed above, the appeal is liable to be dismissed. The District Consumer Forum in its judgment and order has decreed the claim of the complainants directing the payment of the amounts deposited in the FDRs alongwith the interest from 1.1.1996 to 18.10.1996 at the rate of 14% per annum and further directed the payment of interest on the amount of FDRs at the rate of 24% per annum from 19.10.1996. This order needs to be modified. It is hereby directed that the rate of interest payable from 19.10.1996 will be at the rate of 14% per annum and not 24% per annum. With this modification, the judgment and order of the District Consumer Forum is liable to be confirmed and the appeal is liable to be dismissed. Similarly in view of the facts mentioned above, the revision is also liable to be dismissed. Order

The appeal is dismissed and the judgment and order of the District Consumer Forum are confirmed with the modification that the rate of interest from 19.10.1996 till the date of payment shall be at the rate of 14% per annum instead of interest at the rate of 24% per annum. The complainant is also entitled to the cost of Rs. 2,000/- in this appeal.

REVISION No. R-41/SC of 2000 is also dismissed. This judgment shall be placed on record of Appeal No. 413/2000 and a copy of it be placed on Revision No. 41/2000, which shall also be governed by this judgment. Let compliance of this order be made within a period of two months from the date of this order.

LET copy of this order be made available to the parties as per rules. Appeal and Revision dismissed.