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2009 DIGILAW 333 (KAR)

K. Venkatappa v. B. M. Sundaresh

2009-05-25

P.D.DINAKARAN, V.G.SABHAHIT

body2009
Judgment :- Sabhahit, J. (This W.P. is filed Praying to: Quash the order dt. 14.10.2008 passed by the Karnataka Consumer Disputes Redressal Commission in Appeal No. 1803/2008, Anx-B and also quash the order dt. 29.7.2008 passed by the district consumer disputes Redressal Forum, Shimoga in Complaint No. 68/2008, Vide Anx-A and grant the Reliefs by Passing an order allowing the Complaint No. 68/2008 filed by the Petitioner.) 1. This Writ Petition is filed by the appellant in Appeal No.1803/2008 on the file of the Karnataka State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’), Bangalore, being aggrieved by the order dated 14.10.2008, wherein the appeal filed by the writ petitioner herein has been dismissed. 2. The petitioner herein filed complaint No.68/2008 before the District Consumer Disputes Redressal Forum (for brevity, ‘the District Forum’), Shimoga, seeking a direction to the Opponent – respondent herein to pay a sum of Rs.9,00,000/- together with interest at 16% per annum from: 08/07/2006 on Rs.2,00,000/-; 20/07/2006 on Rs.3,00,000/- and 11/08/2006 on Rs.4,00,000/- to the complainant and further, to pay the complainant a sum of Rs.1,00,000/- towards general damages and Rs.1,000/-towards expenses of the legal notice. 2.1 It is averred in the complaint that the Opponent was closely acquainted with the complainant since some years. The Opponent requested for financial accommodation for his business emergency from the petitioner. The petitioner made payment of: Rs.2,00,000/- on 08/07/2006; Rs.3,00,000/- on 20/07/2006 and Rs.4,00,000/- on 11/08/2006 and in all, Rs.9,00,000/- to the opponent by way of respective cheques drawn on Syndicate Bank, A.A. Circle, Shimoga. The Opponent had promised to repay the said amount within six months with interest at 16% per annum. However, the Opponent did not reply the amount as promised and despite repeated demands made by the complainant. The complainant has suffered damages and incurred expenses and wherefore, the complaint was filed before the District Forum for the above said reliefs. 3. The Opponent resisted the application by stating that the claim made by the complainant before the District Forum is not maintainable as the same is not a consumer dispute and the complaint is for recovery of money and the complainant ought to have approached the Civil Court. According to the Opponent, the complainant, his wife – Kausalyamma and son – Mohan Raju had agreed to purchase the garden land of the Opponent bearing Sy. According to the Opponent, the complainant, his wife – Kausalyamma and son – Mohan Raju had agreed to purchase the garden land of the Opponent bearing Sy. No.72 measuring 05 Acres 03 Guntas situate at Yadehalli village, Holehonnur hobill, Bhadravathi Taluk for a sum of Rs.52,50,000/- and there was no written agreement in that behalf. In pursuance of the said oral agreement dated 03.07.2006, the complainant, his wife and son paid Rs.11,00,000/- as part payment to the Opponent. It was agreed between the parties that the complainant, his wife and son had to get the sale deed registered in their favour within one month from the date of the oral agreement, after paying the balance of sale consideration to the Opponent. The complainant, his wife and son were not in a position to pay the balance of sale consideration to the Opponent and to get the sale deed registered. In that connection, a panchayath was held on 23.01.2008 and the contract between the parties was terminated. As per the decision of the panchayat, the Opponent repaid a sum of Rs.8,00,000/- to Smt. Kousalyamma, the wife of the complainant, by way of cheque bearing No.098538 dated 23.01.2008 drawn on State Bank of Mysore, after deducting Rs.3,00,000/- towards harvest of area crop by the complainant and the said cheque was encashed by Smt. Kousalyamma. The complainant, suppressing the true material facts, has approached the District Forum for recovery of money without any basis and the complaint is liable to be dismissed after enquiry. 4. The District Forum, after enquiry, by order dated 29.07.2008, held that the complainant had sought for recovery of the money lent to the Opponent and has not alleged any deficiency of service on the part of the Opponent and the dispute does not fall within the ambit of Section 2(d) of the Consumer Protection Act, 1986 (for short, ‘the Act’) and therefore, the District Forum had no jurisdiction to entertain the complaint or to grant any relief to the complainant and accordingly, dismissed the complaint. Being aggrieved by the said order of the District Forum, the petitioner herein filed Appeal No.1802/2008 before the State Commission. 5. Being aggrieved by the said order of the District Forum, the petitioner herein filed Appeal No.1802/2008 before the State Commission. 5. The State Commission by order dated 14.10.2008, held that: the complaint was for recovery of the amount paid by the complainant to the Opponent with interest and the same does not pertain to consumer dispute; the claim of the complainant that the Opponent has not paid back the amount of Rs.3,00,000/- as promised by him, would not fall within the ambit of Section 2(d) of the Act as the same pertains to money claim; there is no relationship of consumer and service provider between the complainant and the Opponent and accordingly, confirmed the order passed by the District Forum and dismissed the appeal. Being aggrieved by the said order passed by the State Commission, this Writ Petition is filed by the Complainant before the District Forum. 6. We have heard the learned counsel appearing for the petitioner. 7. Learned counsel appearing for the petitioner submitted that the petitioner had issued cheque to the respondent and the respondent had promised to repay the said amount within six months and the respondent failed to repay the amount as promised and therefore, there is deficiency of service. The State Commission was not justified in confirming the order of the District Forum holding that the claim did not fall within the ambit of Section 2(d) of the Act and that the complainant ought to have approached the Civil Court. 8. We have given careful consideration to the contentions of the learned counsel appearing for the petitioner and scrutinized the material on record. 9. The material on record would clearly show that the petitioner had issued three cheques for: Rs.2,00,000/- dated 08.07.2006; Rs.3,00,000/- dated 20.07.2006 and Rs.4,00,000/- dated 11.08.2006. The respondent herein had promised to repay the said amount within six months together with interest at 16% per annum. However, the respondent did not repay the amount as promised despite repeated demands by the petitioner and therefore, the claim of the petitioner is far recovery of money lent to the respondent and there is no relationship of consumer and service provider between the petitioner and the respondent. However, the respondent did not repay the amount as promised despite repeated demands by the petitioner and therefore, the claim of the petitioner is far recovery of money lent to the respondent and there is no relationship of consumer and service provider between the petitioner and the respondent. Therefore, the finding of the State Commission confirming the order of the District Forum holding that the claim made by the writ petitioner does not fall within the ambit of Section 2(d) of the Act and the complainant – petitioner herein ought to have approached the Civil Court, is justified and the same does not suffer from any error or illegality as to call for interference in exercise of writ jurisdiction of this Court. Accordingly, we hold that there is no merit in this writ petition and pass the following Order:- The Writ Petition is dismissed.