UNIT TRUST OF INDIA vs SHANKER LAL

HEARD the learned Counsel for the petitioner.

THIS revision petition is directed against the order passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur, Rajasthan in Appeal No. 692 of 2004 dated 28.11.2005. The brief facts giving an occasion to this revision petition are mentioned hereinafter.

THE complainant/respondent Shanker Lal purchased 400 units under Children Growth Fund on 30.3.1987 bearing Certificate No. 48742371199 dated 30.3.1987. On maturity in 2001, a sum of Rs. 22,513.67 was to be paid to the complainant/respondent by the petitioners. The said amount was not paid by the petitioners. Consequently, the complainant/respondent herein filed a complaint before the District Forum for deficiency in service on the part of UTI and claimed interest on maturity value of Rs. 22,513.67 with interest and litigation expenses. District Forum sent a notice to the appellant/UTI herein. Learned Counsel for the appellant asked the complainant/respondent to send a Letter of Undertaking for issue of duplicate repurchase cheque in Stamp Paper of Rs. 20. Accordingly, the complainant/ respondent sent a Letter of Undertaking for issue of duplicate repurchase cheque in Stamp Paper of Rs. 20 on 2.8.2002,but in vain.

THE UTI did not file its reply within stipulated period even after the notice. However, it was filed after the expiry of the permitted time granted by the District Forum, along with 12 annexures. After careful consideration of the matter and on the basis of affidavit filed by the UTI, one could safely reach to the conclusion that though the UTI issued a cheque in the name of the complainant/respondent No. RP 400003A 00255622 dated 2.3.2001 for Rs. 22,513 dated 2.3.2001 which has been allegedly debited in the A/c No. 01190066256 in State Bank of Bikaner and Jaipur, Bikaner in the name of Account holder Subhash Chander Bhati on 16,3,2991. Later on it was cleared by the UTI"s Counsel that the said cheque was deposited in the State Bank of Bikaner & Jaipur, Hospital Road Branch, Bikaner. The learned District Forum was not convinced with this and wrote a letter to the above said State Bank of Bikaner and Jaipur, Hospital Road Branch, Bikaner on 27.1.2004. The bank in turn informed the District Forum that there is no such A/c. No. in their bank. The District Forum found clear deficiency in service on the part of the UTI and directed the UTI to pay Rs. 22,513.67 along with 6% interest and Rs. 500 as cost from 2.3.2001 within four weeks.

DISSATISFIED with the order of the learned District Forum, the UTI came in appeal before the State Commission.

THE matter was contested before the State Commission. The State Commission found that none of the parties could produce evidence from the bank though learned District Forum had enquired from the bank. UTI could not prove that the payment of the units has been made to the complainant/respondent and upheld the order passed by the learned District Forum. Feeling aggrieved by the orders passed by the Fora below, the present revision has been filed by the UTI.

THE matter was argued at length.

DURING the course of arguments it was also argued that the complainant/respondent herein is not a consumer. But since the complainant/respondent has paid Rs. 4,000 for purchasing 400 units, the question of not being a consumer does not arise, for UTI is rendering financial services. On the basis of the undisputed facts, it is evident that the amount on maturity value has not been received by the respondent. Thus, the question is whether the UTI is liable to pay the amount due on maturity to the respondent.

THIS very question of liability of the UTI in similar circumstances has been considered by the Supreme Court in Civil Appeal No. 1619 of 2005, Unit Trust of India v. Ravinder Kumar Shukla Etc., VII (2005) SLT 104, decided on 19.9.2005. The Supreme Court answered the question in favour of the complainant in following words: ''The question before this Court is whether the loss is to be borne by the unit holder payee and/or by the appellant. The answer to this question would depend on whether the Post Office was acting as an agent of the unit holder and/or the appellant. In the case of The Commissioner of Income Tax, Bombay South, Bombay v. M/s. Ogale Glass Works Ltd., Ogale Wadi reported in 1955 (1) SCR 185, the question was whether the respondent therein, which was a non-resident company, could be said to have received payment in India for the purposes of Indian Income Tax Act. On the request of the assessee, the amounts of the bills were sent to them by means of cheques which were drawn in Delhi. It was held that as the assessee had requested that the amounts be sent by post, the Post Office became the agent of -the assessee. It was held that as the Post Office was in Delhi the assessee had received the amounts in Delhi."

In the case of H.P, Gupta v. Hiralal, reported in (1970) 1 SCC 437, the appellant was a Director of a company. The respondent had filed a complaint under Section 207 of the Companies Act on the ground that the dividends declared by the company had not been paid within the prescribed time. This complaint was filed at Meerut where the complainant resided. The question was whether the Magistrate at Meerut had jurisdiction to try the complaint. This Court held that Section 207 of the Companies Act casts an obligation on the company to pay the dividend, which is declared, to the shareholders within, 42 days from its declaration. It was held that the offence under Section 207 is the failure to pay dividend. It was held that the failure to pay will arise when the warrant is not posted. It was held that the offence was failure was to post and not the non-receipt of the warrant by the shareholders. It was held that the obligation to pay, therefore, arises at the place where it is to be performed, i.e., at the Post Office where the cheque is to be posted and not at the address at which the cheque is to be delivered. It was, therefore, held that the Magistrate at Meerut did not have jurisdiction as the Post Office was in Delhi. It was held that it is only the Magistrate at Delhi who would have jurisdiction. It must be mentioned that in coming to this decision this Court implied an agreement/request from the dividend holder to send the dividends by post. Thus the law is that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either express or implied, the Post Office would continue to act as the agent of the drawer. In that case the loss is of the drawer. We, therefore, asked Mr. Bhat whether in any of the matters there was any proof of any contract that the amounts could be sent by post or any proof that any request had been made by any of the payees that the amount be sent by post. Mr. Bhat was also asked whether there was any proof of any practice from which it can be implied that the payee had requested /consented to have the cheques sent by post. Time was taken from this Court on two occasions in order to ascertain whether in any of the matters any such proof had been filed. After making inquiries and taking inspections of the papers from the lower Forums, Mr. Bhat very fairly stated that there was no proof in any of these matters. Mr. Bhat next argued that these are not the matters in which the Consumer Forum had jurisdiction to adjudicate. He submitted that there was no deficiency of service as there was no negligence on the part of the appellant. All the Forums have on facts held that there was an obligation to send the amounts and that there was negligence. These are questions of facts. We see no reason to interfere on questions of facts."

IN view of the judgment of the Supreme Court we hold that the revision petitioner, UTI could not be absolved from its responsibility to pay the amount payable on maturity, as has been ordered by the State Commission to the complainant/respondent. In the light of the aforesaid discussion, UTI is supposed to pay the amount to Shanker Lal.

IN so far as the liability to pay interest is concerned, in aforementioned circumstances, the UTI is liable to pay interest as directed by the District Forum and affirmed by the State Commission. Accordingly the UTI is directed to pay Rs. 22,513.67 along with 6% interest from the date of maturity till realisation and Rs. 500 as cost from 2.3.2001. The revision petition stands disposed of in above terms. The parties are left to bear their own cost, in peculiar facts and circumstances.