J L NAYAK Vs. AMARNATH AND CO

JUDGEMENT

(1.) The District Forum, Udaipur, dismissed the complaint of the Complaint-appellant as barred by time. Against the dismissal of the complaint, he has filed this appeal questioning the correctness of the order. We may briefly state the facts leading to this appeal. A scheme for the sale of Vijay Super Scooter was floated by the opposite party-respondent through itself and its authorised agent. According to which Rs.300/- instalment per month was to be deposited. The complaint has alleged that 27 instalments in the names of 2 persons @ Rs.300/- per month amounting to Rs.16,200/- were deposited. Serial Nos. of the complainants membership was 45 and 75. It was alleged that the complaint is entitled to Rs.16,200/- alongwith compensation and interest which according to him comes to Rs.10,000/-. It was alleged that the opposite party did not make the scooter available. It also failed to refund the deposited amount. A criminal case was got registered at the Police Station, Dhanmandi, Udaipur. It may be state that the Scheme was floated in 1982 inasmuch as the first membership was obtained on 20.11.1982 and the second membership was obtained on 26.11.82 by depositing Rs.300/- for each membership. The Complainant has stated that according to the scheme after the completion of the required number of member the Scheme effective. The second instalment was deposited for two membership on 7.4.1983 and the 27th instalment was deposited on 13.5.85.28th instalment was not deposited and the contract was repudiated. The complainant filed the complaint on 15.6.89 before the District Forum for directing the opposite party for the delivery of 2 scooters or refund of Rs.16,200/- with interest and compensation.

(2.) Notice was issued to the opposite party- respondent. An objection raised that the complaint is barred by limitation and, therefore, the Redressal Forum has no jurisdiction to entertain and decide it. It was also pleaded that the complainant himself repudiated the contract and did not deposit the 28th instalment. The FIR lodged was false and that through the opposite party to disrepute and for that the opposite party alleged that Rs.5,000/- were spent for conducting the proceedings and Rs.15,000/- as damages for the loss in reputation. An objection was also taken that the matter involves complicated and complex question which can only be decided by a Civil Court. As the complaint was dismissed by the District Forum on the question of limitation we do not consider it necessary to state the other grounds of defence.

(3.) The main defence taken was that the complainant should have been instituted within 3 years from 13.5.85 for the recovery of the amount when he repudiated the contract. The amount of 27 instalments was realised upto 13.5.85. The suit could be filed for the recovery of instalments latest by 12.5.88. But the complaint was filed on 15.6.89 when the remedy of the suit had become barred by time. In the complaint nothing was averred by the complainant as to on what ground the exemption from law of limitation is claimed. It appears that a letter dated 17.6.85 was written on behalf of the complainant at 2.50 p. m. stating that 28th instalment ought to have been received by 12-13 but it has not been received until the morning of the day. Second letter dated 22.6.85 was also written at 11.16 a. m. in which the opposite party wrote that 28th instalment should have been deposited in time and so if there is delay in delivering the scooter or for the return of the amount, the complainant himself is responsible. It appears that the complainant wrote a letter to the Home Minister, Rajasthan on 3.7.86 that he has been cheated by the opposite party and so action be taken against the persons of the said company and offence under Sec.420 IPC may be registered and an enquiry may be started. Despite raising the objection, no steps were taken by the complainant to amend the complaint seeking exemption from law of limitation. It appears that on 11.9.90 learned Counsel for the complainant submitted a letter dated 6.9.86 alongwith the list. An endorsement was made on that letter by the learned Counsel for the opposite party. He wrote "not Admitted". Thereafter the complainant wanted to adduce evidence to prove that letter. Various adjournments were given by the District Forum. The complainant examined himself on 22.3.91 and proved the signatures of Shri Satish Kumar Agarwal, Partner Amarnath and Sons. That letter was accepted by the complainant. According to that letter as per settlement Satish Kumar Agarwal's father has deposited Rs.5,200/- on 19.8.86 in the Bank Account and it was further stated that the cheque is ready. It is significant to note that the letter was written stating that the opposite party is ready to comply with the settlement dated 18.6.86. The District Forum did not examine this aspect of the case and concentrated on the question of limitation. The letter (Exhibit 1) was not taken note of simply on the ground that the complaint is not based on this letter and so the reliefs which the complainant has sought cannot be granted on the basis of the letter. The District Forum was also influenced by the fact that as settlement was arrived at between the parties, the last instalment was not deposited and so neither he (complainant) is entitled to two scooters nor to the refund of the deposited amount as the complainant is only entitled to take back the amount on the basis of the compromise. On the basis of this settlement the District Forum reached the conclusion that no advantage can be taken by the complainant of the letter Exhibit 1 and the complaint cannot be taken to be within limitation on its basis. It dismissed the complainant, hence this appeal.