K.K. Srivastava, President:
1. This is an appeal filed by O.P. No. 3 - Shri O.P. Kohli of Complaint Case No. 907 of 1999 filed by O.P. No. 1 - Shri Roop Lal Nangia against Shri Prem Chand Gupta, Chairman-cum-Managing Director of M/s. Elite Appliances Ltd. having two addresses, one at Vasant Kunj, New Delhi and other at Sector V, Noida, Ghaziabad. The aforesaid complaint case has been decided on 14.10.2002 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) vide which the O.Ps. have been directed to pay a sum of Rs. 15,000/- to the complainant with interest @ 9% per annum from the date of redemption three debentures w.e.f. 31.3.1998 till payment. They have further been directed to pay to the complainant Rs. 197/- as interest on delayed payment of interest components of the debentures and Rs. 1,000/- as compensation for mental harassment and agony. A sum of Rs. 500/- has been awarded as costs of litigation.
2. The respondent No. 1/complainant Shri Roop Lal Nangia r/o House No. 646/1, Sector 41-A,Â ChandigarhÂ investedÂ Â aÂ sumÂ ofÂ Rs. 15,000/- with the respondents-M/s. Elite Appliances located in Flat No. 1806, Sector B, Pocket-1, Vasant Kunj, New Delhi. Shri Prem Chand Gupta has been described to be the Chairman-cum-Managing Director of M/s. Elite Appliances Ltd. and his other address has been mentioned as A-30, Sector V, Noida, Ghaziabad. It has been alleged that the complainant sent a cheque for a sum of Rs. 15,000/- to the appellant Shri O.P. Kohli on 1.10.1996 for the aforesaid investment with the Company and described the appellant Shri O.P. Kohli as agent of M/s. Elite Appliances Ltd.
3. There is no dispute about the facts that M/s. Elite Appliances Ltd. allotted three numbers non-convertible debentures of Rs. 5,000/- each full paid up for cash bearing No. A-00000893 to 00000895 with Regd. Folio No. 0010566. The letter of allotment bears No. 0010566 dated 31.1.1997 vide its copy Annexures C-2. These points were called Enamelware Bonds and were of a tenure of 18 months. These points carried interest @ 20% per annum for the next six months and lastly at further enhanced rate of 22% per annum. The interest was paid half yearly on 31st March and 30th September and yearly on 30th September of each year on the amount standing from time to time. It was alleged that the first payment of interest was to be made for the period of allotment up to 31.3.1997 and the first payment was due from the date of allotment up to 31.3.1997. Cheque bearing No. 253505 dated 31.5.1997 drawn on the State Bank of Bikaner and Jaipur for a sum of Rs. 960.20 was received from M/s. Elite Appliances Ltd. in the month of August, 1997. The complainant presented the said cheque for encashment to his banker Punjab National Bank, Sector 22-D, Chandigarh. It was, however, returned on 16.8.1997 with the remarks âcheque out of dateâ.
4. The return memos dated 8.8.1997 and 16.8.1997 were filed in the shape of photocopies as Annexures C-3 and C-4. These cheques were sent by the complainant to O.P. No. 1 for revalidation and thereafter a sum of Rs. 930.20 was credited to the account of the complainant on 22.10.1997. In the mean time, delay of more than seven months took place in the payment of the cheque for which, according to the complainant, O.Ps. were liable to pay interest @ 20% per annum; bank charges of Rs. 23/- and Rs. 32/- which were deducted by the Bank as bank charges in respect of Cheque No. 758992 dated 31.7.1997 for Rs. 1,500/-. This amount was also to be paid by the O.Ps. The total liability of O.Ps. was fixed at a sum of Rs. 197/- comprising of Rs. 112/- on account of interest and Rs. 85/- on account of bank charges. Similarly, a cheque No. 766816 dated 31.1.1998 which was also drawn on the State Bank of Bikaner and Jaipur for Rs. 1,575/- was received by the complainant towards payment of interest for the period ending 31.3.1998 and on presentation to the banker, this cheque was also dishonoured vide memo to the Bank dated 16.4.1998. It was further alleged that three debentures also became due for redemption on 31.3.1998 but no amount of interest on redemption value of premium of the non-convertible debentures has been received by the complainant despite personal requests and legal notice (Annexure C-8). The legal notice was sent at both the addresses on O.Ps. 1 and 2 i.e. of New Delhi and Noida but the notices were received back with the report âLeft. Photocopies of envelopes (Annexures C-9 and C-10) were placed on record and copy of legal notice duly served on O.P. No. 3 and Acknowledge Due duly signed by O.P. No. 3 were placed as Annexure C-11.
5. The complainant filed the complaint alleging deficiency in service and unfair trade practice on the part of all the O.Ps. The O.P. Nos. 1 and 2 did not appear to contest the case despite notice and was proceeded ex parte. O.P. No. 3 who is the present appellant was represented by his Counsel Mr. Pardeep Bedi and Mr. Vishwas Ahuja, Advocates. The appellant/O.P. No. 3 filed his written statement wherein he categorically denied being the agent of O.P. Nos. 1 and 2.
6. The stand taken in the written statement of O.P. No. 3 is that the complainant used to consult him for making investment in the scheme which could earn more interest and profit and he had made reference to M/s. Elite Appliances Limited. He denied the fact that investment by means of cheques were made by the complainant through him. According to O.P. No. 3, the complainant was not a consumer qua him and the complaint was not maintainable against him under the provisions of C.P. Act It was, however, not disputed by O.P. No. 3 that he was acting as an agent of L.I.C., U.T.I. and P.P.F. and there is a specific denial of his being the agent ofÂ M/s. Elite Appliances Ltd. or Elite Agencies. The complainant as well as O.P. No. 3 led evidence and placed on record their affidavits. The District Forum drew adverse inference against the appellant/O.P. No. 3 to whom the legal notice had been sent describing him as an agent of M/s. Elite Appliances Ltd. and about his not refuting the averments made in the legal notice. Accordingly, it was held by the District Forum that the O.P. No. 3 was an agent of Elite Agencies. As mentioned earlier, O.P. Nos. 1 and 2 were proceeded ex parte. The complaint was allowed with the directions which we have mentioned in the earlier part of our judgment.
7. Notice of appeal was served on the complainant who put in appearance through Mr. G.K. Chawla, Advocate. The record of the case was summoned from the District Forum.
8. We have heard Mr. Paras Goyal, Advocate for the appellant and Mr. G.K. Chawla, Advocate for respondent No. 1 and have carefully perused the impugned order and record of the complaint case.
9. The short point which requires to be decided in this appeal is, whether the District Forum was justified in raising an adverse inference and consequently a presumption against the appellant Shri O.P. Kohli from the mere fact that he had not given reply to the legal notice describing him as agent of M/s. Elite Appliances Ltd. and record a finding based on such inference that the appellant is an agent of M/s. Elite Appliances Ltd. the pleadings of the complaint case i.e. the averments made in the complaint andÂ the written statement contended the averments made by the respective parties i.e. the complainant and the O.P. No. 3. The complainant has described in the complaint that the investment was made vide cheque which was handed over to the local agent of M/s. Elite Appliances Ltd. namely, Shri O.P. Kohli and got the acknowledgement slip duly stamped by the State Bank of Bikaner and Jaipur. This averment made is also the averment which was made in the legal notice which has admittedly been received by the appellant Shri O.P. Kohli.
10. Shri O.P. Kohli filed his written statement in the shape of his affidavit. In Para 4 of the affidavit which is in reply to the contents of Para 1 of the complaint, Shri O.P. Kohli deposed that he was not local agent of O.P. Nos. 1 and 2. The contents of the remaining Para Nos. 2, 3, 4, 5, 6, 7, 8 and 9 were denied for want of knowledge. In Para 13, which is in reply to Para 10 of the complaint, it was mentioned that the same were denied for want of knowledge. It was also denied that O.P. No. 3 was authorized local agent of Elite Appliances Ltd. and Agency. In Para 15, it was contended that O.P. No. 3 is an agent of LIC, UTI, PPF and is not an agent of M/s. Elite Appliances Ltd. or Elite Agencies, as referenced by the complainant. In Para 16, it was mentioned that the complainant had been investing his small savings in the instrument of UTI through O.P. No. 3. In Para 17, he deposed, inter alia, that the complainant had been inquiring of and on about more high yield investment opportunities in private sector in short term regarding which whatever information the O.P. No. 3 used to have, the same was shared with the complainant. In Para 18, it was deposed that the complainant was never forced or lured to invest any instrument without his independent investigation and rather a word of caution was always put across. In Para 19, it was mentioned that the complainant had himself mentioned that he applied for debentures and received allotment advice and post-dated cheques etc. and in the last Para 20, it was deposed that the O.P. No. 3 has got no personal liability towards the complainant.
11. Apart from the affidavit of the complainant, there is no document placed on record to show that the cheque for the investment had been handed over to the appellant/O.P. No. 3 Shri O.P. Kohli and that Shri O.P. Kohli undertook to render service to the complainant for consideration so that the complainant could establish that the appellant was deficient in rendering service to the complainant.
12. The appellant disputed the facts regarding the investment being made with O.P. Nos. 1 and 2 and such a disputed question of fact could not be decided by the District Forum only on raising an adverse inference against the appellant merely because he did not send a reply to the legal notice. It may be mentioned that if the O.P. No. 3/appellant himself had not put in appearance before the District Forum, even then the complainant was under a legal duty to lead evidence to the satisfaction of the District Forum to prove that the O.P. No. 3 Shri O.P. Kohli was the authorized local agent of O.P. Nos. 1 and 2 i.e. M/s. Elite Appliances Limited/Elite Agencies.
13. Even assuming for the purpose of argument that the complainant handed over the cheque regarding the investment with O.P. Nos. 1 and 2 to O.P. No. 3, the O.P. No. 3 rendered service byÂ forwarding the same to O.P. Nos. 1 and 2 and the complainant received the allotment of debentures referred to above and thereafter the O.P. No. 3 had no role to play in the matter as M/s. Elite Appliances Ltd. were dealing with the complainant directly by sending communications and post-dated cheques regarding the payment of interest on the dates agreed upon between the parties. The O.P. No. 3 thus could not be held even under such assumed state of facts to be deficient in rendering service and could not be fastened liability conjointlyÂ with O.Ps.
14. Resultantly, we find considerable merit in this appeal which is allowed. The impugned order passed by the District Forum is set aside insofar as it fastened liability on the appellant/O.P. No. 3 Shri O.P. Kohli conjointly with O.P. Nos. 1 and 2. The remaining part of the order which fastens liability on O.P. Nos. 1 and 2 shall remain intact. The costs of appeal are quantified at Rs. 300/-.
Copies of this judgment be sent to the parties free of charges.