(Delivered on 21/09/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original complainant  feeling aggrieved by an  order dated 12/06/2017 passed by the District Consumer Forum,  Nagpur,   in   consumer complaint  No. 219/2017, by which  the complaint   has been dismissed  at the stage of  admission .

2.         The complaint  was filed by the appellant  before the District Consumer Forum,  Nagpur  against the  respondent  herein  making allegations  in brief is as under:-

a.         The appellant  has got business relationship  with the respondent  and  in view of the said business relationship  the respondent  had approached  the appellant on 10/09/2015 & requested  for making some  deposit so as to enable  the respondent  to carry out the construction in apartment  scheme  launched  by the respondent.  Therefore,  the  appellant gave deposit of Rs. 5,00,000/- to the respondent  who  issued the deposit receipt  about the same  in the name of the  appellant.  The respondent  also issued one blank cheque  bearing No. 237405 to the appellant.  However, when the  appellant  was  in need of  fund, he requested  the respondent  to pay  him that amount. At that time  the respondent  issued one cheque  of Rs. 5,00,000/- in the name of the appellant  but it was dishonoured  by the  bank with reason  as  “Funds Insufficient”. The appellant therefore,  issued legal notice to the respondent on 29/03/2017 calling upon  the respondent  to pay the said amount within  15 days. The respondent  received that notice but did not pay that amount.

b.         Hence, alleging  deficiency  in service on the part of the respondent  and also alleging unfair trade practice against the respondent,  the appellant  filed consumer complaint  seeking direction to the respondent  to pay him Rs. 5,00,000/- with interest at the  rate of 18% p.a.  over  Rs.,5,00,000/- from  21/01/2017 till the date of  complaint amounting  to Rs. 37,500/- and further claiming compensation  of Rs. 50,000/- for mental agony and cost of Rs.15,000/-, thus, totalling to Rs. 6,02,500/-.  The appellant along with consumer complaint filed copies  of deposit  receipt, cheque bearing No. 237405 &  notice dated 29/03/2017. The appellant also relied on certain authorities in support of the complaint.

3.         The learned District Consumer Forum, Nagpur  heard the appellant  at the stage of  admission  and then passed the impugned order on 12/06/2017 and thereby  dismissed  the complaint  by observing that  the appellant has not produced  any evidence to show that  the respondent  was indulged  finance business  and money  transaction  in between of both the parties  is of  personal  nature and the decisions cited by the appellant  are not applicable  to the present  case.  The District Consumer Forum below  gave opportunity to the appellant  to approach  the  competent  Civil Court for redressal of his grievance.  Thus, this appeal is filed by the appellant  feeling aggrieved  by the aforesaid order.

4.         This Commission issued notice to the respondent  and it was given humdast to the appellant for  serving the same by Registered Post A.D. The said notice  was returned unserved with postal  endorsement  as “Left”. Hence,  the appellant  was directed to  furnish the changed address of the respondent  for reissuing notice. The appellant then furnished  new address of the respondent.  Thereupon,  notice was reissued to the  respondent  on that changed  address on 30/11/2017. The said notice  was returned unserved with postal endorsement  as “Unclaimed”.

5.         Thereafter, this Commission  granted permission  to the appellant to serve notice to the respondent  by publishing it  in the local newspaper. As per permission  granted by this Commission on 16/01/2018 the appellant published  the  notice  of this appeal in local newspaper  namely “ Lokshahivarta” at his own cost.  He produced  one of the  issue  of that newspaper  dated 28/01/2018 along with pursis. We found  from the perusal of the notice published  in that  newspaper  that it has been  duly served to the respondent.  This Commission proceeded exparte against  the respondent  as he failed  to appear  before this Commission  despite service of notice.

6.         We have heard  the appellant  in person  and perused  the entire record and proceedings of the appeal.  We have also called  original record and proceedings of the consumer complaint  No. 219/2017 and perused the same.

7.         The appellant submitted that the Forum  below  has not properly considered the facts and circumstances of the present  case, documents  filed  on record  and the authorities cited and erred in dismissing  the complaint  at the stage of admission.  He argued  that  there was  no question  of adducing  evidence  to show that  the respondent was indulging  in money  lending  transaction  in as much  as making of  deposit  of Rs. 5,00,000/-  by  the appellant  with the  respondent  was  in connection  with the business relationship  in between  him and  the respondent.  He further submitted that  the respondent  is indulged  in   keeping the  deposit  of money and it was his regular business  to  accept the deposit  and  dealing with the matter after  accepting the deposit. Therefore, he requested that  it was  the question of evidence as to what was the business relationship in between him and respondent and evidence about the same  could have been adduced after the complaint was  admitted and opportunity  of adducing  evidence was given to the appellant by the Forum  below.  He also submitted that  the allegation was not only of rendering  deficient service  by the respondent  to the appellant  but was also of unfair trade practice  adopted by the respondent and hence,  the Forum erred in dismissing the complaint  at the stage of admission. He  therefore, requested that  the impugned order may be set aside  and complaint may be remanded for deciding  it on merit after issuing  notice of the same to the respondent.

8.         The appellant relied  on the decisions in the following cases in support of his submission.

i.          M/s. Sunita Jain Vs. Modern Threads (India ) Ltd. , reported in 2014(I) CPR 398 (NC).  In the said case the Hon’ble National Commission held that   deposits made with the  company cannot be termed as loan and complaints are maintainable under section  12 of the Consumer Protection  Act, before the  Consumer Forum.

ii.          M/s J.D. Financer(Regd.) & others Vs. Mohd. Hashim & another, reported in 2015(2) CPR 322 (NC).  It is held in that case by the Hon’ble National Commission that when  firm denied or disputes its  liability, the period  of limitation would commence from  the date  on which  the liability was disputed or denied.

iii.         V.V. Ramanarsaiah & others Vs. Abheestha Finance Company & another, reported in II (2017) CPJ 395 (NC).  It is held in it that  the complainants are  entitled  to receive back maturity amount of Fixed Deposit  Receipt.

9.         In our view, the District Consumer Forum below  ought  to have given   opportunity  of   adducing evidence to the appellant to prove the finance business  in between  the appellant  and  respondent  and also to prove allegation  made in the complaint about rendering  of deficient service  by respondent  and about  adoption of  unfair trade practice by the respondent.  There were sufficient  documents before the Forum  below  to admit the complaint  and to issues notice of the complaint  to the respondent.  Therefore, we hold that  the  impugned order deserves to be set aside  and complaint  deserves  to be remanded   for deciding  it on merit after  issuing  notice of the same to the respondent.

ORDER

i.          The appeal is partly allowed as under.

ii.          The impugned order is set aside. The complaint bearing No. 219/2017 is remanded  to the District Consumer Forum, Nagpur  for  deciding  it on merit after issuing  notice to the respondent  herein  and giving him opportunity  for filing reply to the complaint  and by giving further  opportunity  to both  the parties to  adduce evidence about  issue  raised  in that  proceedings.

iii.         The District Consumer Forum below shall not  be influenced  by above  observations  made by this Commission while deciding  this appeal.

iv.        The appellant shall appear before the District Consumer Forum, Nagpur on 31/10/2018.

v.         No order as to cost in appeal.

vi.        Copy of order be furnished to appellant, free of cost and its one copy be also sent to the District Consumer Forum, Nagpur for information.

vii.        The record and proceedings of complaint bearing No. 219/2017 be sent back forthwith  to the  District Consumer Forum, Nagpur.