TRIVEDI HASMUKHBHAI CHELARAM vs JAIKISHANBHAI BAPALAL NIRMAL

THE opposite party publishes advertisements in the Gujarati Daily newspapers of Gujarat which reads as under: "Advertiser makes offer to advance of amount on land, building, bungalows, factory, theatre, shops, gold and silver ornaments, small industries tractors, luxury buses, milk dairy and for starting new business etc."

THE telephone number and address are always given in the advertisement matter. THE trade name is Mahavir Estate Corporation and designated itself as society organiser, financier and broker. Being led away by this advertisement the complainant appears to have approached the opposite party for getting advance and appears to have paid deposits from time to time to the opposite party and the opposite party has given receipts. THEse amounts have been paid by way of 3% brokerage against which he promised to arrange for a loan of Rs. 15,00,000/- from Bombay Mercantile Co-op. Bank Limited, Ahmedabad. THE complainant could not either get the loan or he was able to recover Rs. 1,05,000/- paid by him to the opposite party.

THE complaint was originally filed before the District Forum, Mehsana. But since the relief sought was for Rs. 1,05,000/- plus Rs. 8,000/- by way of compensation the same has been sent to us by the District Forum for hearing and disposal. In pursuance of our notice the opposite party has filed a written statement and contended that the complainant is not a consumer and the Commission has no jurisdiction. He has also denied having received Rs. 1,05,000/- as commission from the complainant. He further contended that the complainant had filed a criminal complaint before the Judicial Magistrate (1st Class), Vijapur and the Court has directed the Police Inspector to make an enquiry and submit the report and thereafter the complaint having been found to be false, the Magistrate dismissed the complaint. The complainant has also filed an affidavit and rejoinder and has given full particulars regarding the payment and other evidences, records, telephone calls made etc. He has also filed an affidavit of Laxmanbhai Gobarbhai Desai and supported his claim as well as various advertisements given by the opposite party.

The opposite party wanted him to be examined as witness and in deposition he has admitted that the receipts which are produced bear his signature. He has received these amounts not by way of commission but he had given a loan which has been returned by the complainant He has admitted that he is not keeping any books of accounts. He was a Gumasta of the advocate and was also doing brokerage. He has never paid any income-tax. To the question as to how he could obtain Rs. 1,05,000/- to give loan to the complainant, he said that he did not know from where he has got the money. He admitted that he has given all these advertisements. He was obtaining loan for the clients since 6/7 years. But he was not able to give any particulars regarding the loan. To the question of the complainant''s advocate as to what was the staff in his office and what was the salary paid to the staff, he stated that he had a staff of 2 girls only and to one he was paying Rs. 150/- and to the other he was paying Rs. 350/-. He admitted that he has received the letters but he has not given any reply. He has refused to produce the books of accounts but admitted that 354986 was his telephone number.

IT is true that the complaint is written by the complainant personally and has not made proper averments. However, during the course of the enquiry we have made it clear that the opposite party is following unfair trade practice and, therefore, the opposite party was supposed to give evidence to that effect. From the evidence produced before us, we have no doubt that the opposite party who was a clerk of an advocate is enticing the customers who are in need of loans by the advertisements. He has not produced any record to show that it was a genuine offer for obtaining loans. By such an advertisement it is likely that the gullible customers will make payment of commission in order to obtain which they never knew that the opposite party is able to procure. Therefore the opposite party appears to be pocketing the money. The complainant has paid different amounts but unfortunately we are not able to give any relief to him for recovery of the money because all the amounts shown are time-barred. But that does not mean that we cannot pass appropriate orders to stop the unfair trade practice followed by the opposite party. We are convinced in the facts and circumstances of the case that the opposite party is following unfair trade practice by offering procurement of loan which are not found to be genuine. He does not possess the proper infrastructure and is not able to given one instance where he could procure the loan for anybody. We have, therefore, no doubt that the opposite party is following unfair trade practice and is liable for the damages. The complainant has filed the complaint, engaged an advocate and has also suffered damages. We assess the damages at Rs. 1,000/- with the specific direction that if the opposite party continues to follow this unfair trade practice he shall be liable also to pay damages to all the persons who might suffer on account of this unfair trade practice. ORDER The complaint is partly allowed. The opposite party is directed to pay Rs. 1,000/- by way of damages and Rs. 500/- by way of cost within 4 weeks from today. Complaint partly allowed.