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Judgment
THE appellant is the original complainant whose complaint has been dismissed on the ground that the complainant was not a consumer. It is, therefore, necessary to narrate some facts. THE Respondent No.2 is the Mamlatdar, Entertainment Tax for Kheda District at Nadiad and Respondent Nos. 1 and 3 are Mamlatda rand Additional Collector, respectively.
THAT one Shri Gurumukhdas Sidhumal Makhija was the original owner of Sajan Talkies, Nadiad which has been purchased by the present complainant in the year 1981. Every cinema house has to pay Entertainment Tax in accordance with the seats provided in the cinema hall and occupied by the cinegoers. Under the Entertainment Tax Act and Rules, cinemahall owners have to submit deposit so as to secure his tax liability for Entertainment Tax. Instead of taking tax deposit a provision has been made to hand over the National Saving Certificate (here in after referred to as the N.S.C.) representing the amount of deposit so that the owner can get interest. This deposit is required to be kept with the Mamlatdar, Entertainment Tax, for seven years i.e. till its maturity and then released and returned to the cinemahall owners after taking fresh deposit so that there may not be any intervening period the money remains without interest. Originally, the NS Cs were for seven years and when it becomes mature for payment the same is returned and replaced by another certificate of the same amount. This deposit is required to be returned by the Mamlatdar, Entertainment Tax at the end of every seven years. Under this scheme the original owner Mr. Makhija had deposited NSCs of the value of Rs. 12,800/- on 27.8.75 and thereafter he again deposited NSCs for the amount of Rs. 16,100/- on 9.8.1979. All the certificates were handed over to the Mamlatdar, Entertainment Tax by way of security and they were required to be released or returned at the end of seven years.
However, in the year 1981 the cinema house was sold to the present complainant and the original owner had given right to collect and appropriate the NSCs to the complainant: In order to recover the said certificate from the Mamlatdar, Entertainment Tax (Resp. No.2) the original owner has given a power of attorney.
IT appears that the present complainant had demanded the NSC of Rs. 12,800/- in advance and thereafter made several demands for the return of the NSC to him. IT appears that only one certificate of Rs. 800/- was returned and remaining certificates of the value of Rs. 12,000/- have not been returned on a totally irrelevant and extraneous ground. A letter written by the Mamlatdar to the complainant is also on record which shows that these certificates have been lost by the office of the Mamlatdar and that is the real reason for not returning the certificates to the complainant. The reasons given by the Mamlatdar, Entertainment Tax is that the complainant has not deposited these certificates and the certificates are payable only to the person in whose name they have been issued and, therefore, the same are not returned. We are unable to appreciate or understand the defence of the opposite party. The demand of the complainant was merely to return the NSC to him on the basis of the power of attorney since he not only possesses the power of attorney but he also possesses the right to appropriate the same. Once the power of attorney is presented the Mamlatdar, Entertainment Tax is obliged to return the NSC. Again, a second set of certificates of the value of Rs. 16,100/- became due and payable in the year 1987 and the demand appears to have made by the complainant. These certificates have been delivered by the Mamlatdar to the complainant though the complainant was not the original owner. That is why we are unable to accept the contention of the opposite party that the certificate cannot be returned to the complainant but can be returned to the original owner. To our opinion this defence of the opposite party is not bonafide. The opposite party the Mamlatdar, Entertainment Tax having lost the NSC is raising an untruthful defence and instead of helping the complainant to obtain the duplicate certificate or in any other way in which the amount can be recovered from the Post Office, the Mamlatdar is raising a false claim. The Addl. Collector and Mamlatdar, Nadiad have remained totally indifferent.
SINCE the complainant could not collect these certificates from the Mamlatdar, he filed a complaint before the District Forum which has been dismissed by the District Forum and hence this appeal. Two questions arise for our consideration. (1) whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and (2) if the complainant is a consumer, whether he is entitled to get the certificates from the Mamlatdar or from the Government and if the same are not available, can he claim damages and if yes, what should be the damages. Mr. Parikh, the learned Advocate appearing on behalf of the appellant has strongly relied upon the decision of the Hon''ble National Commission in the case of Mumbai Grahak Panchayat v. Mis. Lohia Machines Ltd reported in I (1991) CPJ 26 (NC)=1991 (1) CPR P. 184. In that case each customer had paid advance deposit of Rs. 500/- alongwith their order for purchase of scooter. The stipulation was that this Rs. 500/- were to be adjusted against the price payable by the customer at the time of delivery. A further condition was that the advance deposit of Rs. 500/- was to carry simple interest of 9% p.a. but in the event of cancellation of the booking by the applicant the money deposited by way of advance was to be refunded by company with only interest @ 7% p.a. etc. There was a further condition that in the case of cancellation of the booking within the first six months no interest shall be payable and the refund of deposit shall be made by the company by a demand draft to be posted to the customer within 60 days from the date of receipt of the cancellation advice. The petitioner had produced as Annexure "I" to the petition, a photostat copy of the intimation sent by the company to the customers at the time of booking which contains the terms and conditions relating to the transaction. Though the notice was served, the respondent company did not make the payment. The Hon''ble National Commission, in para 6 has observed that "we find little justification for the failure on the part of the company to discharge its obligation of refunding to the persons who had cancelled their bookings, the amounts of their deposits together with the stipulated interest immediately after expiry of the period of 60 days from the date of receipt of the cancellation advice as had been solemnly under taken by the min paragraph 4 of Annexure "I". Hence a clear case of deficiency in service is made out against the Opposite Party for which the consumers represented by the complainant are entitled to be reasonably compensated." Mr. Parikh has, thereafter cited our own judgment against L.M.L. in which, we have also followed the judgment of his Lordship Mr. Eradi, President of National Commission and submitted that non-return of the deposit though under obligation to return is considered to be a deficiency in service.
THE facts of this case is similar to the facts in the case cited above. Here, the NSCs have been deposited with the Mamlatdar, Entertainment Tax acting on behalf of the State and the State was liable to return the same as soon as the certificates became mature for payment. THE reason is simple. After seven years the certificates would not carry interest and the said certificate shall have to be replaced by a new certificate which carried interest. THEre is also a stipulation that the certificates shall be returned on demand. In the instant case the complainant has demanded the return of the certificate to enable him to encash it from the Post Office. He had also produced the power of attorney for the said purpose. THE property has been transferred in his name. He has also the right to receive the certificates and as a matter of fact, certificates of the value of Rs. 800/- from the amount of Rs. 12,800/- has been returned to him though it was in the name of the original owner. Similarly the second set of certificates for Rs. 16,100/- was also returned to him though it was in the name of the same owner. We are, therefore, of the opinion that the reasons shown and the plea taken by the opposite parties that the NSCs can be returned only to the original owner is totally wrong and not bona fideand by non-return of certificates the complainant has suffered loss of interest from the date of maturity till today.
INSTEAD of helping the complainant and seeing that he can get his money back with interest the opposite parties have tried to raise totally irrelevant and false defence. We are, therefore, of the opinion that the State Government is liable not only to return the principal amount but also liable to pay interest from the date of maturity till the actual payment is made which to our opinion should not be lass than 15% for withholding the certificates without any reasonable ground or reason. We are, therefore, of the opinion that the appellant succeeds on both grounds and the appeal shall have to be allowed. ORDER The appeal is allowed. The order of the District Forum is set aside and the Respondent State Government shall hand over the certificates of the value of Rs. 12,000/- (Maturity value Rs.24,000/-)and since the certificates have not been returned till today, the Respondent State will pay interest @ 15% from the date of maturity i.e. from 7.8.82 till the payment is made. It is clarified that the interest is payable on Rs. 24,000/-. In the alternative if the same cannot be returned, the Respondent-State will pay Rs. 24,000/- with running interest @ 15% from the date of maturity till actual payment is made. Since the appellant has succeeded, the respondents are liable to pay cost for both the Courts which we quantify at Rs. 2,000/-. It is desirable that the State may recover part of the amount from the Mamlatdar, Entertainment Tax who had wrongly refused to deliver the certificates or the payment thereof. The payment shall be made within 4 weeks from the date of receipt of the copy of the order. Appeal allowed with costs. _____________