THE MARKETING MANAGER, 'SAMAYAM' vs PULLE SUBRAHMANYA SASTRY

THE opposite party i.e. Marketing Manager, ''Samayam'', Telugu Daily, Hyderabad, is the appellant. With a very good intention of starting a Telugu Daily by name ''Samayam'', the opposite party advertised in the papers calling for quotation for transporting the papers on certain routes in East Godavari District. THE routes are, so far as we are concerned (1) Rajahmundry to Kesanakurru and (2) Ravulapalem to Kotipalli. THE complainant believing that the said paper would be started very soon, agreed to transport the paper in the routes aforementioned. According to the terms of the agreement, he deposited for both routes a sum of Rs. 6,500/- by way of demand draft which was evidenced by a receipt dated 1.3.86, passed by the opposite parties acknowledging the receipt of the same on 3.3.86. It is the case of the complainant that after making the deposit, he waited nearly for a period of 6 years i.e. from 1986 till 1991, with a hope that the opposite party will start the paper. As the opposite party did not do so, he requested for refund of the money deposited by him, by a letter dated 12.6.91. Since there was no response from the opposite party the complainant again wrote a letter on 9.9.91, demanding the opposite party to settle his account. Even this letter did not avoke any response from the opposite party. He therefore filed the complaint to direct the opposite party to refund the caution deposit of Rs. 6,500/- with interest at 2% per month from the date of receipt i.e. 24.6.1986 till payment.

THE opposite party received the notice, but remained exparte. THE complainant filed Exhibits Al to A5 but there is no oral evidence adduced. THE District Forum on a consideration of Exs. Al to A5 came to the conclusion that they conclusively establish that the opposite parry had received a sum of Rs. 6,500/- as evidenced by Exs. A4 and A5. It also held that the complainant demanded for refund of the amount sometime in 1991, after waiting for a long period of 6 years, as evidenced by Exs. Al and A2. Since the opposite party failed to refund the amount, the District Forum allowed the complaint and directed the opposite party to refund a sum of Rs. 6,500/- with interest at 12% p.a. and costs of Rs. 100/-. Aggrieved by the said order the opposite party preferred this appeal. It is contended by the learned Counsel for the appellant M/s. Habeeb Ansari, firstly that, the District Forum, East Godavari, has no terri torial jurisdiction to entertain the claim, as the entire cause of action arose at Hyderabad. According to the opposite party the advertisement was issued from Hyderabad, no doubt published in local papers of East Godavari District. And the deposit amount was accepted at Hyderabad and the agreement was entered into at Hyderabad. But it is to be seen that even according to the advertisement the complainant offered to transport the paper on two routes situated in East Godavari District i.e. Rajahmundry to Kesanakurru and Ravulapalem to Kotipalli, thus the complainant has to perform the contract of transporting the paper, only in East Godavari District. Hence undoubtedly part of the cause of action arose within the territorial jurisdiction of District Forum, East Godavari. We are therefore of the view that, since part of cause of action arose within the territorial jurisdiction of .East Godavari, the District Forum has jurisdiction to entertain the complaint. It is nextly submitted that the complainant is not a consumer. It is evident from the advertisement as well as from the agreement that the complainant has to perform the transporting of paper, to be started by the opposite party. And the deposit was made only as amount of security for transporting the paper. Since the opposite party did not start the paper and having accepted the deposit amount, we are satisfied that the opposite party is bound to refund the same. This submission that the complainant is not a consumer was not taken before the District Forum as the opposite party remained exparte. Even agreement is not placed before us to show that under the agreement, the opposite party can retain the amount even in case of their failure to publish in paper. According to the complainant, because the opposite party did not publish the paper, he is entitled for refund of the amount. In these circumstances we are satisfied that the complaint is maintainable under the provisions of the Consumer Protection Act. Moreover it is a case where the opposite party accepted the amount, and for no fault of the complainant, he is sought to be deprived of the refund of the money. In these circumstances as the receipt of amount was proved by the complainant the opposite party is not entitled to retain the same. In certain cases the National Commission also took a view that the complaint is maintainable for seeking refund of the deposited amount. Having regard to all the aforesaid circumstances, that the opposite party remained exparte and did not take any of the pleas sought to be raised now and that as during the pendency of the appeal an interim order was passed persuant to which the entire amount as directed by the District Forum was deposited and the respondent was permitted to withdraw the same without furnishing any security. As we consider the order of the District Forum is just and equitable, we are not inclined to interfere with the order passed by the District Forum. The appeal is dismissed. No costs. Appeal dismissed.