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Judgment
ABOVE noted petitions arises out of common order dated 22.5.2012, passed by Jharkhand State Consumer Disputes Redressal Commission, Ranchi (for short, ''State Commission '') vide which First Appeals of the petitioner (OP no.1) were dismissed.
FACTS in brief are that respondents no.1/complainants filed complaints against petitioner that he in connivance with OP no.2 has flouted a scheme "Tour and Travel Package " on petty deposits of Rs.2,950/- promising gift articles. As per complainants, they were denied all the promised facilities and as such petitioner and respondent no.2 have committed unfair trade practice. Petitioner in its written statement denied his involvement in such acts and stated that he is having no links with Free India Conept and M.S. enterprises.
District Forum in its order dated 10.11.2010 found certain pages explaining the concept of the scheme in the hand writing of petitioner as well as the receipts regarding deposits being issued by the petitioner in his writing to hold him liable to pay the principal amount along with compensation and litigation costs.
Aggrieved by the order of the District Forum, petitioner filed an appeal. State Commission confirmed the order of District Forum with the modification that the awarded amount may be realized by the complainants, jointly and severely from M.S.Enterprises and the petitioner, as per law. It has been contended by learned counsel that petitioner has no link with the alleged transactions, hence, he cannot be held liable for this act.
OTHER contention raised by learned counsel is that the complaints filed before the District Forum are barred by limitation, as the cause of action has taken place in the year 2003, whereas, the complaints have been filed in the year 2006. In support, learned counsel has relied upon the following judgments of this Commission as well as that of Apex Court ; (i) Alok Kumar Jaiswal Vs. Mary Tudu and Anr. RP No.2313 of 2006 decided on 5.1.2011 ; (ii) Kundan Lal Sharma Vs. Col. H.S.Boparae (Retd.) and Anr. III (2002) CPJ 314 (NC) and (iii) M/s Kerala Agro Machinery Corporation Ltd. Vs. Bijoy Kumar Roy and OTHERs. AIR (2002) SC 1210.
The defence of petitioner before Fora below and before this Commission is that he has not made any transactions with the complainants nor has he received any money from them. In this regard, District Forum in its order has categorically held about the involvement of the petitioner in these cases observing as under ; "However, O.P. Gajendra Agrawal has nowhere denied that the document i.e. the receipts of payment of money was not in his own handwriting or he had written the three pages to Annexure-I explaining the scheme in his own handwriting which have been filed by the complainant Ram Nandan Singh in CC No.271/2006. In the light of the evidence of all the complainants making allegation against O.P. Gajendra Agrawal and also in view of the fact that the receipts of money deposits along with aforesaid scheme written in three pages in his own handwriting lead to the conclusion that Gajendra Agrawal was the main culprit, who had acted on behalf of other Ops and had received the money with the promise of providing free gift and Tour package to the complainants. It is also clear that Gajendra Agrawal acted as Agent of other Ops, had committed unfair trade practice with the complainants knowing fully well that the scheme floated by him was only to gather money from the poor people and not providing any services promised by him. In the light of the discussions made above, we are of the opinion that there has been deficiency in service on the part of the Gajendra Agrawal. "
STATE Commission, while dismissing the appeals in its impugned order has held ; "5. The issue of limitation in this case is not sustainable as the appellant has asserted that the scheme was open but could not materialize as the complainants did not pay the balance amount shown in their receipts. It also proves that the scheme was initiated by him as the agent of M.S.Enterprise. Therefore, deficiency alleged has rightly been proved before the lower forum. 6. However, the order in Revision Petition no.2313/2006 passed by Hon ''ble National Commission on 5.1.2011, is a bit different in facts. Here the appellant has collected the money personally, representing as the agent of M.S.Enterprise. He cannot be allowed to shield himself from the liability of his activities. As such we confirm the appellant ''s liability jointly with the principal M.S. Enterprise. Accordingly, the impugned order is confirmed with modification that the awarded amount may be realized by the complainant jointly or severely from M.S.Enterprise and the appellant Shri Gajendra Pd. Agrawal as per law. "
Both Fora below have given findings of fact, that it is the petitioner who has initiated the scheme as Agent of M.S. Enterprises and it is petitioner alone who has collected the money personally from the respondents. Now petitioner cannot be permitted to go Scot free once he has admitted the factum of having accepted money from the complainants which has been categorically held by the District Forum, after considering the evidence on record. Secondly, petitioner himself has asserted that the scheme was open but it could not materialize since complainants did not pay the balance amount due against them and as such, the cause of action in present cases is a continuing one.
Further, there is no reason to disagree with the findings given by the State Commission on the issue of limitation. It is pertinent to point out that petitioner never raised the limitation issue before the District Forum. It was raised by the petitioner before the State Commission for the first time and State Commission rightly rejected the contention of the petitioner.
NONE of the judgments relied upon by the learned counsel for the petitioner are applicable to the facts of the present case, since in the present cases, petitioner himself has collected the money on behalf of M.S.Enterprises. Thus, the State Commission rightly held that petitioner as well as M.S.Enterprise are jointly or severely liable to pay the awarded amount to the complainants. Thus, no jurisdictional or legal error has been shown in the impugned order to call for interference in the exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. Since, two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petitions are hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only) each.
PETITIONER is directed to deposit the total costs of Rs.25,000/- (Rupees Twenty Five Thousand only) by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the aforesaid said costs within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. List on 19.10.2012 for compliance.