Anil Bhushan vs Nepal Singh

Karuna Nand Bajpayee, Presiding Member

This revision petition has been filed in challenge to the Order dated 08.11.2021 in Appeal No. 702 of 2009 of the State Commission Uttar Pradesh arising out of Order dated 31.03.2009 of the District Commission in Complaint no. 189 of 1998.

Heard the learned counsel appearing for the petitioner and have perused the record including inter alia the Order dated 31.03.2009 of the District Commission, the impugned Order dated 08.11.2021 of the State Commission and the memo. of petition.

Heard Mr. Anirudh Gulati, advocate being authorized to argue by the learned counsel for the petitioner and the counsel for the respondent.  Perused the record.

It appears that the complaint was lodged before the District Commission by the complainant / respondent.  From the perusal of the complaint the allegations as they evince out from it were to the effect that at the relevant point of time the complainant was the resident of Modi Nagar, District Ghaziabad where on 16.07.1990 the petitioner / opposite party approached the complainant telling him about his finance company and about the details of the terms and conditions of the investment and its prospectus.  The opposite party was a relative of the complainant and as such the complainant had reason to repose trust in the petitioner. In the wake of the above background firstly Rs. 10,000/- were given to the petitioner and in lieu of the same an FDR receipt was provided to him.  Then on 21.09.1990 the complainant got two FDRs for Rs.5,000/-  each (for total of Rs. 10,000/-) in the name of his son Mr. Amit Kumar.  This money was given in cash to the petitioner.  Thereafter on 26.01.1991 the petitioner again came to the complainant at his Ghaziabad residence and asked for some more money and yielding to the same the complainant gave a cheque of Rs. 40,000/- bearing No. QEK654881 drawn on Punjab National Bank, Modi Nagar and it was promised by the petitioner / opposite party that he shall be doing the needful for the issuance of the FDR of Rs. 40,000/-. The maturity period of all the FDRs was three years each.  The rate of interest as was promised was 14% per annum.  The earlier FDRs were to mature on 16.07.1993 and 21.09. 1993.  When the maturity period expired the maturity amount Rs. 60,000/-  along with 14% annual interest was demanded but the petitioner is said to have started giving evasive replies.  The complainant kept rubbing its heels visiting petitioner’s officer time and again but except false promises and ill-treatment nothing was received.  Eventually, driven to the wall the complainant sent a notice through his counsel on 08.09.1997 but even in response to the same also the money remained unrefunded to the complainant.  In such circumstances gross deficiency of service was alleged and the relief was sought by way of filing the complaint in the District Commission.

The District Commission proceeded in the matter as per law and heard both the sides.  It appears that the preliminary objection was raised on behalf of the petitioner that the complaint was time- barred as the maturity years of the FDRs fell in 1993 and 1994  and the complaint had to be filed within two years thereafter but the same was filed on 07.03.1998.  The District Commission took the view that the cause of action may be said to have arisen in 1991 and 1993 and, therefore, the legal notice dated 08.09.1997 or the correspondence between the parties would not extend the limitation period and, therefore, complaint was not maintainable.

Feeling aggrieved by the dismissal of the complaint by the District Commission an appeal was filed by the complainant in the State Commission.  The State Commission found merit in the appeal and held the Order passed by the District Commission to be not sustainable and passed the following Order:-

“10. Appeal is allowed respondent is directed to refund Rs.60,000/- deposited by complainant alongwith 9% simple interest.  The interest shall be calculated from the date of filing of Complaint Case till the actual calculation date.

Since complainant has suffered mental, financial and physical harassment, therefore, for this Rs. 50,000/- be paid.  On this amount no interest shall be payable.

Towards expenses of Complaint Case and appeal complainant be paid Rs. 15,000/- on this amount also no interest shall be payable.

Rival parties shall bear the cost of appeal themselves.”

Learned counsel appearing for the petitioner has once again reiterated its submission regarding the complaint being time-barred. It was contended that if the maturity amount of the FDR was not provided when its tenure expired the cause of action should be deemed to have arisen at that very point of time and the complainant ought to have been filed within two years thereafter.  In the present case according to learned counsel the complaint was filed in the year 1998 and there is no reason why the said delay should have been condoned.  According to learned counsel the District Commission’s Order was beyond reproach and was passed correctly and there was no good reason for the State Commission to interfere in the same and grant the award as it did.  Another submission is that all the financial transactions had taken place in Saharanpur and the Ghaizabad District Commission could not have exercised its territorial jurisdiction with regard to the complaint that was made. It has also been submitted that finance company which issued the FDRs was floated by the father of the petitioner who is already dead and not by himself and, therefore, no liability could be affixed on the petitioner.  It was also submitted that the FDRs were got issued in favour of the son of the respondent / complainant and, therefore, the complainant could not have brought the complaint against the petitioner.

Learned counsel appearing for the complainant / respondent submitted that it has been specifically averred in the complaint that all the financial transactions of giving the money and receiving the same had taken place in District Ghaziabad where the complainant resided and where the petitioner had come to receive the money.  The cheque was issued in Ghaziabad and, therefore, the submission that the District Commission Ghaziabad did not have territorial jurisdiction is wholly unsustainable. It has also been submitted that the District Commission had dismissed the complaint on the sole ground of being time-barred.  No other reason for dismissing the complaint has been given by the District Commission and, therefore, all other submissions which have been made by learned counsel for the petitioner have nothing to do with the dismissal of the complaint as they have neither been discussed nor have been made the basis of rejecting the complaint.  The aspect of the delayed filing of the complaint has rightly been rejected by the State Commission. Submission is that the petitioner being an old relative of the complainant they were having good terms with each other and in the background of the relationship which they had it was but natural for the complainant to keep persuading the petitioner to make the payment good which he never refused.  The hope to get the money back with interest had never forsaken the complainant and it was a continuing cause of action, the petitioner never having denied to make the payment.  It was only when in response to the legal notice that was given in the year 1997 when the eventual refusal to make the payment came that the complainant then decided to file a complaint case.

At this stage the complainant who is also present in person and who is an aged senior citizen has also addressed the Bench submitting that being old relatives and having had the background of long-standing relationship it was not found fit or prudent to take the matter to courts as the complainant never abandoned his hope to get back his money.

Learned counsel has also submitted that from the perusal of the complaint itself it will become demonstrably manifest that since very beginning all the talks, offers and transactions of giving and taking all the money had taken place in between the complainant and the petitioner who was by all means running the show.  The occasion never arose for the complainant to have enquired into the ownership of the said finance company on papers.  The petitioner / opposite party never hinted even remotely that he was not the sole in-charge or that there was anybody else who had any stake or concern with the said company.  All the transactions were done with the petitioner.  Submission is that whatever finance company was said to have been running the business it was being managed and run by the petitioner itself and none else. Submission is that for all practical purposes the privity of contract was between the petitioner and the respondent and the petitioner must bear the cross of having liability towards respondent in the conspicuous circumstances of the case.  Submission is that the State Commission has rightly set aside the Order passed by the District Commission and there is no reason to interfere with the same as there is no jurisdictional error in the Order passed by the State Commission.

Perused the record in the light of the rival submissions made at the bar.  First of all, it may be observed that so far as the submission made by the counsel for the petitioner regarding the territorial jurisdiction is concerned the financial transactions are said to have taken place in Modi Nagar, Ghaziabad where the complaint resided and it was the petitioner who is said to have visited the complainant’s house there all the time. In such circumstances, the objection regarding the territorial jurisdiction does not appear to be sustainable.  It also appears to be true that the dismissal of the complaint was based solely on the reason or ground of limitation.  On that aspect of the matter the Bench is of the considered view that in the facts and circumstances of the present case the cause of action was subsisting on a continuing basis and there was no violation of the statutory period of two years provided under Section 69 of the Act 2019. The obligations and duties of the Opposite Party towards the Complainant never ceased to exist. The acts and omissions on the part of the Opposite Party which give rise to the wrong extend beyond a single completed act or omission and were of a continuing nature concomitantly causing continual legal injury de die in diem.

The Bench may also observe that even the very fact that the Opposite Party was indefinitely retaining the Complainant’s deposited amount and was keeping him on the tenterhooks of false promises could in itself have been sufficient cause to justifiably condone the delay if needed under Section 69 of the Act 2019, anything otherwise would have been tantamount to a travesty of justice, leaving the Complainant helpless and remediless.

It may also be observed that in a given case when the cause of action actually arose shall have to be determined in perspective of the conspicuous and specific facts of that particular case.  Both the sides have admitted even while arguing the case here that the parties have been related to each other and were not strangers.  Petitioner was on visiting terms with the complainant.  There is nothing unnatural in the conduct of the complainant if instead of straightway going to courts he waited to get his money back with persuasion. When the denial or the refusal to refund the money became the woeful reality  then the legal notice was issued.  In the conspicuous facts of the case if we reckon the period of limitation after the legal notice was sent the complaint cannot be held to be time-barred and the finding of the State Commission in this regard does not suffer from any infirmity.  It may be apt to quote the relevant extract of the order passed by the State Commission which reads as follows:-

“7. Firstly, this point to be considered that whether complaint case is time barred. As per details of Complaint Case complainant had deposited amount on different dates. Maturity period was 3 years. The deposited amount was to be returned after 3 years but the respondent did not refund this amount. On 05/09/1997 legal notice has been given for refund of deposited amount. In this case, in reality cause of action had not arisen in the maturity date of fixed deposit but the cause of action has arisen on the day on which respondent had refused to refund the deposited amount. Therefore, this conclusion of District Consumer Forum that cause of action had arisen in 1991 or1993 is against law. In reality complainant kept on demanding his amount and finally made a demand for money by legal notice for which no reply was given, Therefore, in the present case cause of action has arisen for not making payment inspite of legal notice, which is within the prescribed time limit. As such on this point the finding given by District Consumer Forum is set aside.

District Consumer Forum has not given any consideration on the point of amount payable to complainant but every appellate forum is vested with a power that it can consider the point of relief sought in the Complaint Case. The amount, which has been deposited by the complainant, that amount has not been denied from deposit. Only it is  mentioned that the Complaint Case has not been filed by the person who had deposited the amount. But since complainant has mentioliood in the complaint case itself that complainant himself had deposited the amount in the name of his son, therefore, in reality contract for receiving interest on the deposited amount has been done with complainant and not with son of complainant. Therefore, this submission of written arguments is not in accordance with law, that complainant has no right to present the Complaint Case and since factum of deposit of amount is not denied therefore, complainant is authorized to received the amount deposited by him.

It is also mentioned that as far as deposit and refund of money between complainant and Saharanpur Finance Company is concerned Civil Court is having Jurisdiction of hearing of such dispute. This submission is also not supported by law. Since respondent had extended his services. Though it is correct that in Complaint Case name of Finance Company is not mentioned and only name of ins operator Anil Bhushan is mentioned, but this defect is not a material defect, Finance Company of which operator is respondent, then he is responsible after being made a party for refund of amount deposited in his company. Therefore, the complainant is entitled for grant of relief sought in Complaint Case.

The perusal of the State Commission’s Order indicates that the relevant facts have been very well considered and there is no good ground to reopen all the factual aspect of the case and go all over again de novo.  There does not appear any such material irregularity in the order of the State Commission which may persuade the Bench to interfere in the same.  The Bench also does not find any streak of perversity in the impugned order on the basis of which the same may be castigated.  It may also be observed that while sitting in revisional jurisdiction the Commission has to operate within the confines of the law.  While exercising revisional jurisdiction we have to see whether the forum below has abstained to exercise its jurisdiction or has exceeded its jurisdiction while passing the Order.  None of these infirmities are perceptible in the impugned Order which could persuade us to meddle with the same or to substitute its findings.  Petition, therefore, lacks merits and stands dismissed.

The Registry is requested to send a copy each of this Order to all parties in the petition and to their learned counsel. The stenographer is requested to upload this Order on the website of this Commission immediately.