Uttam Datta vs Mojaffar Rahaman Mondal

These revision petitions have been filed by the petitioner challenging the order dated 19.12.2016 passed in Appeal No.894 and 806 of 2015 by the State Consumer Disputes Redressal Commission, (in short 'the State Commission') West Bengal.

Brief facts of the case are that the petitioner complainant filed a consumer complaint before the District Forum that the petitioner purchased building material for Rs.1 lakh on 24.3.2013 and paid in cash. Similarly, he purchased other construction material for another Rs.1 lakh on 25.3.2013 and paid in cash. It is also alleged in the complaint that the complainant entered into an agreement with the opposite party supplier of construction material on 24.3.2013 that he will supply material worth Rs.5 lakhs within 3 months to the complainant and an advance of Rs.2 lakhs in cash was given on the same day. The material supplied against the cash purchase on 24/3/2013 and 25/3/2013 was not of good quality and on making complaint, the opposite party agreed to refund the amount to the complainant. Accordingly, he gave two cheques to the complainant each of Rs.1 lakh however, the same were dishonored. The petitioner then replaced these two cheques by one cheque of Rs.2 lakhs on 10/11/2013. The opposite party also issued another cheque of Rs. 2 lakhs to the complainant on the same day. Both the cheques were issued from the account of the opposite party held in United Bank of India and the cheque Nos. were 942614 and 942615.It has been alleged by the complainant that these cheques also bounced due to insufficient funds. Then complainant filed a consumer complaint No. 43 of 2014 on 31st October 2014 and the District Forum allowed the complaint vide its solder dated 9th July 2015 and ordered the opposite party to pay Rs.4 lakhs within 60 days and amount would be payable along with interest at the rate 8% per annum. The opposite party was also directed to deposit Rs.15,000/- with the state consumer welfare fund.

Aggrieved by the order of the District Forum, the opposite party as well as the complainant both filed appeals before the State Commission being FA No. 894 of 2015 and 806 of 2015 respectively. The State Commission allowed the appeal of the opposite party and dismissed the appeal of the complainant.

Hence the complainant has filed the two revision petitions against the combined order dated 19th December 2016 of the State Commission.

After notice, the respondent submitted his written arguments though none appeared on behalf of respondent on any date. Therefore, the learned counsel for the petitioner was heard on the day when the matter was fixed for final earring.

The learned counsel for the petitioner stated that the State Commission has wrongly recorded that no proof in original has been filed by the complainant and therefore the State Commission has doubted the complaint made by the complainant. In this regard, it has been submitted that two bills dated 24/3/2013 and 25/3/2013 are already on record and the agreement dated 24/3/2013 is also available where the advance of Rs.2 lakhs paid by the complainant to the opposite party has been acknowledged by the opposite party. The main reason of dismissing the appeal filed by the complainant and accepting the appeal filed by the opposite party is that the State Commission has relied on a mortgage deed where the State Commission has observed that this mortgage deed is in respect of a loan taken by the opposite party from the complainant. Thus, the State Commission has given a finding that on the one hand, the complainant has filed photocopy of the mortgage deed which indicates that the complainant has given a loan of Rs.4 lakh to the opposite party and on the other hand, the complainant has filed a consumer complaint for Rs.4 lakhs mentioning the story of purchase of construction material and therefore, the facts of the complaint are not correct. In this regard, the learned counsel stated that the State Commission has not correctly interpreted this mortgage deed. It was further stated by the learned counsel that the State Commission has held that the current dispute is not a consumer dispute. This observation of the State Commission is not correct because the complainant has purchased goods from the respondent opposite party and has also given advance for future purchase, therefore, the complainant is a consumer qua the respondent opposite party.

I have carefully considered the arguments advanced by the learned counsel for the petitioner and examined record. The documents filed by the complainant have been stated to be forged by the opposite party. The complainant's case is that he purchased construction material for Rs.2 lakhs from the respondent opposite party and also gave separately an advance of Rs.2 lakhs for supplying the material in future. It is also seen that the opposite party agreed to refund the amount of Rs.4 lakhs and accordingly two cheques with the No. 9 4 2 6 1 4 and 9 4 2 6 1 5 for Rs.2 lakh each dated 10.11.2013 were issued to the complainant by the opposite party. It is the argument of the learned counsel for the petitioner complainant that the issue of mortgage deed relied upon by the State Commission was not raised by the opposite party in the written statement. Clearly, the opposite party has also agreed to pay Rs.4 lakhs to the complainant as he issued above referred two cheques for Rs.4 lakhs to the complainant. It means that there was some transaction between the two parties wherein the opposite party was required to give Rs. 4 lakhs to the complainant. The State Commission has observed the following in respect of the mortgage deed and it's further findings:-

"Most significantly, from the photocopy of purported mortgage document being relied upon by the complainant himself, it appears that the OP took a loan amounting to Rs.4,00,000/- from the complainant for business purposes; whereas, the complainant filed the complaint case with the allegation that the OP owed this amount to him on account of non-delivery/delivery of inferior quality materials to him. No clarification has been advanced from the side of the complainant to clear the veil of suspicion in this regard.

That apart, without casting any aspersion about the integrity of the complainant, we feel, the allegation of entire building material consisting of 20 quintals iron rods of different sizes and 250 bags cement supplied by the OP were found defective, it does seem to us that the veracity of such allegation needs intense scrutiny based upon immaculate documents/evidence. It may not be out of the place to mention in this connection that the complainant has not filed original copy of even a solitary piece of document being relied upon by him in support of his contention. Since the burden of proof rested with the complainant, more so, when the authenticity of documents was under challenge, we feel, it was incumbent upon the complainant to prove the veracity of said documents. For some obscure reasons, the complainant shied away from doing so."

In respect of the mortgage deed, nothing specific was argued during final hearing, however, the following grounds are mentioned in the revision petition:-

"6.7. For that Hon'ble State Commission, the 2nd Bench with neither lady member nor A PERSON WHO IS OR HAS BEEN A JUDGE OF A HIGH COURT, erred by explaining: Most significantly, from the photocopy of purported mortgage document being relied upon by the complainant himself, it appears that the OP took a loan amounting to Rs.4,00,000/- from the complainant for business purpose; and Ld. State Commission is further erred by expressing: No clarification has been advanced from the side of the complainant to clear the veil of suspicion in this regard' while it is crystal clear from the said document: "Due to business transaction of recent times there is the liability of the amount of Rupees 4,00000/- (four lac) which has been received by me from the Deed-Recipient; " the deed arranged/made by Respondent/OP towards petitioner who is the Deed-Recipient and if the same would be misinterpreted never, it corroborates of the fact that there was business transaction between the parties, there was also deficiency in service.

6.8. For that Hon'ble State Commission, the 2nd Bench with neither lady member nor A PERSON WHO IS OR HAS BEEN A JUDGE OF A HIGH COURT, erred by wrongly interpreting the mortgage document while the same has been advanced never from the side of the Ld. OP/Respondent in Written Objection or even in Brief Notes of Argument on behalf of the Respondent been filed before Hon'ble State Commission by elucidating a particular line/sentence of the said document with mistranslation 'a loan amounting to Rs.4,00,000/-' for business purpose', whereas the arrangement of wards, in fact, "the liability of the amount of Rupees 4,00000/-." "Due to business transaction", indeed, not to clear the veil as a whole for the ends of justice."

The State Commission has also mentioned that this mortgage deed has been relied upon by the complainant himself. The explanation given by the complainant in respect of this mortgage deed in the above grounds of the revision petition does not throw any light on the existence of this mortgage deed. The circumstances indicate that it is the case of loan given by the complainant to the opposite party and that is why, the opposite party has issued two cheques of Rs.2 lakhs each totaling to Rs. 4 lakhs to the complainant and has also not mentioned in his written statement anything about the mortgage deed though he has mentioned that the complainant is a well known money lender of the area. To avoid any court fees, the complainant has taken the course of filing a consumer complaint for the alleged purchase of construction material from the opposite party. The opposite party also seems to be involved in this, as the chances are that he may have signed these bills and agreement as well as the acknowledgment note agreeing to refund the price of the purchased material, though the opposite party has stated that these documents are forged.

From the fact that the respondent opposite party has given two cheques of Rs.2 lakhs each totaling to Rs. 4 lakhs to the complainant only implies that the opposite party has to pay Rs. 4 lakhs to the complainant. On the basis of the observation of the State Commission, there are two versions of giving of Rs.4 lakhs by the opposite party. One is obviously the story given in the complaint i.e. the complainant purchased construction material for Rs.2 lakhs and also paid advance of Rs.2 lakhs separately to the opposite party for future purchase and the second is that the complainant has given a loan of Rs. 4 lakhs to the respondent opposite party as is clear from the mortgage deed. This clearly makes the complaint of the complainant as a doubtful complaint as the facts of the complaint are not corroborated by the evidence.

Based on the above discussion, I do not find any merit in the present revision petitions and accordingly the RP 804 of 2017 and RP 996 of 2017 are dismissed.