R.S. Sharma, President:
1. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite parties, for seeking a direction for providing Rs.35,000/- (Rs. Thirty Five Thousand only) taken for service charges and Rs.25,75,000/- (Rs. Twenty Five Lakhs and Seventy Five Thousand only) taken towards court fees and to direct the OPs to pay a sum of Rs.3,51,000/- (Rs. Three Lakhs and Fifty One thousand only) towards compensation for maintenance of his life, and Rs.20,00,000/- as compensation for mental agony and to disgrace the complainant in the Society and also seeking interest 12% p.a. on the amount of Rs.25,75,000/- and Rs.35,000/-.
2. Brief facts of the complaint are that : the complainant is a doctor by profession as well as he is a partner in the partnership firm M/s Shivam Builders and Developers (P.) Ltd. The Opposite Parties are husband and wife and are Advocates by profession. In the month of September, 2008, all of a sudden, the complainant fell ill and he was required to go to Mumbai for bypass surgery. In the meantime, the partner of the said firm namely Sandeep Pandey had started mis-using and mis-appropriation of the capital to the tune of Rs.2,64,00,000/-. When the complainant returned back to Bilaspur, then he came to know about fraudulent act and mis-appropriation of the capital by the partner of the firm namely Sandeep Pandey. As the complainant was advised by the doctors for bed rest, therefore, he could not go to anywhere, then Suresh Tiwari, who is working as Supervisor in the firm of the complainant told the complainant that his relative is an Advocate in the High Court and by saying that he will introduce the OPs with the complainant, the OPs came to the residence of the complainant at Saket Apartment where the OPs assured the complainant that they will recover the amount for the complainant to the tune of Rs.2,64,00,000/- from the partner and will sent him jail and the suit is required to be filed before the High Court, for which Court Fees will be 13% i.e. Rs.25,75,000/- (Rs.Twenty Five Lakhs and Seventy Five Thousand only) and the Advocate fees will be Rs.35,000/- (Rs.Thirty Five Thousand only). As the complainant was not having knowledge regarding procedure of the Court, therefore, he believed on the OPs and on 11.02.2009 vide self cheque bearing No.041466 of I.C.I.C.I. Bank of Rs.75,000/- and on 19.02.2009 vide self cheque bearing No.041468 of I.C.I.C.I. Bank of Rs.22,15,000/- and on 19.0.2009 a sum of Rs.2,85,000/- was given in cash to the OPs, but the OPs have not filed any suit and when the complainant went to the High Court and sought information regarding his case, then it came to know that the OPs have filed a Writ Petition (Criminal) for lodging First Information Report. Then the complainant contacted the OPs , the OPs told him that they will return him the remaining amount after deducting fees of Rs.35,000/-, but the OPs have already taken fees of Rs.35,000/- and thus the OPs committed deficiency in service. On account of this act of the OPs, the son and daughter-in-law of the complainant, who were doctors in Mumbai, left their job and came to Bilaspur on account of which loss of Rs.27,000/- per month was occurred. The OPs had assured the son of the complainant namely Vishal Kalwani that after appointment of the Advocate, he shall join his job, but the OPs have not filed any suit before the High Court and Vishal Kalwani, the son of the complainant came to know that by making forged signatures, the OPs have filed a civil suit before 3rd Civil Judge Class “ II, Bilaspur for declaration and permanent injunction. Instead of filing a recovery suit, the OPs forging signature of the complainant filed declaratory suit without intimation and knowledge of the complainant, whereas the suit was to be filed for recovery of Rs.2,64,00,000/- (Rs. Two Crores and Sixty Four Lakhs only) and for which the OPs have received a sum of Rs.25,75,000/-. The complainant appeared before 3rd Civil Judge Class “ 2, Bilaspur and by filing application stated that a suit was filed by making forged signature and by executing false affidavit. The complainant had also filed Criminal complaint before Chief Judicial Magistrate, Bilaspur (C.G.) for offence under Sections 420, 467, 468 and 34 I.P.C against the OPs. The Chief Judicial Magistrate, Bilaspur (C.G.) after taking cognizance issued process against the OPs, against which the OPs have filed Revision Petition before District and Sessions Judge, which was dismissed on 24.04.2010 and thus OPs have obtained a sum of Rs.25,75,000/- (Rs. Twenty Five Lakhs and Seventy Five Thousand only) and Rs.35,000/- (Rs. Thirty Five Thousand only) as Court Fees fraudulently from the complainant and thus OPs have committed illegal trade practice and also committed deficiency in service, therefore, the complainant was required to file complaint. Therefore, the complainant made prayer for providing him Rs.35,000/- (Rs. Thirty five thousand), which was taken by the OPs for service charges and Rs.25,75,000/- (Rs. Twenty Five Lakhs and Seventy Five thousand only), taken towards court fees along with interest @ 12% p.a. and to direct the OPs to pay a sum of Rs.3,51,000/- (Rs. Three Lakhs and Fifty One thousand only) towards compensation for maintenance of life of his son and daughter in law, and Rs.20,00,000/- as compensation for mental agony and to disgrace the complainant in the Society.
3. The OPs filed their written statement and averred that the complainant could not prove that the complainant went to Mumbai for his treatment, he undergone a bypass surgery and his partner Sandeep Pandey committed mis-investment of Rs.2,64,00,000/-. The OPs never went to house of the complainant with Suresh Tiwari, but infact the complainant himself came to house of the OPs and told them that a partnership firm namely M/s Shivam Builders and Developers Pvt. Ltd. has been constituted between the complainant and Sandeep Pandey, in which investment of capital is 60% and 40% i.e. 60% for the complainant and 40% is for Sandeep Pandey and ratio of the Profit and Loss in the capital is 60% and 40% and in that firm the complainant had invested crores of rupees but Sandeep Pandey was not allowing him to go into office and was also not providing the accounting and wants to take possession of the entire property illegally, regarding which the complainant filed complaint before Civil Lines Police, as well as Superintendent of Police, Bilaspur, but no action is being taken by the Police, then the OPs told the complainant that a Writ Petition (Criminal) should be filed before Honble High Court and for entering in the firm and for getting knowledge regarding the accounting of the firm a civil suit would be required to be filed before the Civil Court. The complainant had not informed that how much amount he had given to Sandeep Pandey and in this regard no discussion was held and the complainant had not discussed regarding the fees. In the complaint, the complainant had made contradictory averment and if the complainant wants to file civil suit for recovery of Rs.2,64,00,000/- (Rs.Two Crores Sixty Four Lakhs only), then court fees at the rate of 13% would be required to be paid to the tune of Rs.34,32,000/-, therefore, no Advocate could tell a less amount for the court fee than the required amount and when the required court fees amount is Rs.34,32,000/- then why the OPs will take only a sum of Rs.25,75,000/- as court fees, therefore, the averment made by the complainant is false and frivolous. The amount which has been mentioned by the complainant, has been withdrawn by the complainant himself and which is confirmed by the investigation report sent by the Civil Lines Police to Chief Judicial Magistrate, as well as the from the information sent by the I.C.C.I.C. Bank to Thana Incharge, Civil Lines, Bilaspur. The complainant has filed an application under Section 119 Order 1 Rule 10(2) read with Section 151 CPC, of which line 3 to 7 of para 3 is worth looking at. As per averment of Dr. I.D. Kalwani when his relative asked him, then Dr. I.D. Kalwani has applied for certified copy of the matter instituted in the Court which was received by him on 29.06.2009 and he got information regarding the matter, from which it is clear that when Vishal Kalwani came to know, the complainant in this paragraph has mentioned and averred that he appeared before that Court and the complainant had instituted false suit. The complainant had filed false complaint against the OPs and the OPs had filed Petition before Honble High Court under Section 482 Cr.P.C., which was dismissed against which the OPs have filed Petition before Honble Supreme Court, in which the proceedings of the Chief Judicial Magistrate were stayed and Special Leave Petition (S.L.P.) was admitted for hearing on merits, and which is still pending. The complainant sought direction for recovery of a sum of Rs.25,75,000/- and thus it was a suit relating to money suit, which can be settled only through Civil Court and the complaint cannot be instituted under Consumer Protection Act, 1986, therefore, this Commission cannot entertain the complaint. Therefore, the complaint of the complainant be dismissed with cost and the OPs be provided Rs.50,000/- each as token expenses.
4. The complainant has filed affidavits of Dr. Vishal Kalwani, Dr. I.D. Kalwani (complainant) and Suresh Prasad Tiwari and also filed photocopy of Bank Transaction Inquiry (A-1) as well as photocopy of Writ Petition (Criminal) No. /2009 and copy of suit (A-3) as well as the application filed by the complainant under Section 119 Order 1 Rule 10(2) r.w. Section 151 CPC along with photocopy of the affidavit (A-4) and the written complaint sent by Police Station, Civil Lines (A-5) and the complaint sent to the Superintendent of Police and the photocopy of suit (A-6), and the order dated 24.04.2010 passed in revision petition no.39/2010 filed before District Court and report of Forensic Expert (A-8).
5. The OPs have filed photocopy of certificate dated 27.10.2009 issued by I.C.I.C.I. Bank, the photocopy of Inquiry Report dated 08.10.2009 sent to the Chief Judicial Magistrate, Bilaspur and the photocopies of order dated 21.06.2010 and 10.05.2011 of Honble Supreme Court.
6. Shri Rupesh Shrivastava, the learned counsel appearing for the complainant argued that the OPs went to the house of complainant and assured him that they will file a suit against the partner Sandeep Pandey for recovery of a sum of Rs.2,64,00,000/- and they also told him that suit would be filed before the Honble High Court, but the OPs have filed only Writ Petition (Criminal), whereas they have received a sum of Rs.25,75,000/- as Court Fees as well as Rs.35,000/- as fees, but the OPs have not initiated any action and the OPs have filed a declaration suit fraudulently by forged signatures, which is confirmed by the report of Handwriting Expert and from it, it is also clear that OPs have deceitfully received a sum of Rs.35,000/- as fees and Rs.25,75,000/- towards court fees but they have not initiated any action, from which it is clear that a sum of Rs.25,75,000/- which has been received by the OPs for institution of the suit, but they have not done this work and have committed misconduct and it certainly comes in the category of deficiency in service and even after receiving the amount, they have not instituted the suit, which shows deficiency in service on the part of the OPs and in this situation the instant complaint is maintainable before this Commission and the complainant, is entitled for compensation as mentioned in the complaint.
7. Shri Vijay Kumar Mishra, learned counsel appearing for the OPs argued that from the Statement of Account and Police Report, it is clear that the complainant himself has withdrawn the amount and only on the basis of the affidavit it cannot be proved that the complainant has given the said amount to the OPs. As the complainant told the OPs that his partner namely Sandeep Pandey started mis-using and mis-appropriation of the capital and Police is not lodging report, therefore, the OPs had filed Writ Petition (Criminal) before Honble High Court, in which there is signature of the complainant and the complainant has also filed affidavit. The complainant and his son are doctors and in this situation, the averment made by the complainant is false and misleading. If actually the amount would be taken in the name of court fees, then 13% of Rs.2,64,00,000/-, would have been demanded and from this, it is clear that complainant is making false statement. So far as the report of Handwriting Expert, which has been produced by the complainant is concerned, the OPs have also verified the document from Handwriting Expert, whose report is attached.
8. In the instant case the complainant sought relief that as per para œb? of the relief column, he has given a sum of Rs.25,75,000/- as court fees to the OPs, be returned to him and thus prima facie the complaint of the complainant is relating to recovery of the amount, which is purely to be decided by the Civil Court. In this case the complainant alleged that the OPs have fraudulently by making forged signature filed suit before 3rd Civil Judge Class “ 2, Bilaspur for declaration and injunction along with application under Order 39 Rule 1and 2 CPC filed in the plaint and vakalatnama, is not containing signature of the complainant and document is fabricated and in this regard the complainant has filed report of Dr. Sunanda Dhenge, the Handwriting Expert and OPs have also filed Report of Shri Syed Faisal Huda and both the reports are contradictory to each other. According to Dr. Sunanda Dhenge the signatures Q-1 to Q-7 are forged whereas according to Shri Syed Faizal both the signature are of the same person. Thus, two contradictory reports are available and in this case the cross-examination of both the expert witnesses, is necessary.
9. The main averment of the complainant is that the OPs have committed forgery and cheated the complainant and fraudulently filed suit. Because the complainant made allegation against the OPs regarding forgery, therefore, the matter will require elaborate evidence.
10. Vishamber Sunderdas Badlani V. Indian Bank I (2008) CPJ 76 (NC), Honble National Commission has observed thus :-
"6. But, one could not be oblivious to observations of the Supreme Court in the judgment in SYNCO Industries v. State Bank of Bikaner and Jaipur and Ors., I (2002) SLT 214 = I (2002) CPJ 16 (SC) = (2002) 2 Supreme Court Cases 1. Following observations were made in this by the Hon'ble Supreme Court “
"3. Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakh for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to decide and obviously was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay the Court-fees. This in that sense is an abuse of the process of the Consumer Forum."
(Emphasis supplied).
8. In the case of Oriental Insurance Company Ltd. v. Muni Mahesh Patel, IV (2006) CPJ 1 (SC) = VI (2006) SLT 436 = 2006 (134) Company Cases 103 (SC), there was simple dispute relating to the claim whether the respondent's wife was a teacher or not. The Supreme Court has made the following observations :
"The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent's wife was a teacher which as now appears is not the correct position. It is also accepted that she was really not a teacher.
Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that the Commission accepted that the insured was not a teacher. The complainant raised a dispute about the genuineness of the documents (i.e. proposal forms) produced by the appellant.
The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
The nature of proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. The Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of law and not by the Commission.
(Emphasis supplied)
9. There could not be any dispute with the proposition submitted by the learned Counsel for the complainant that civil and criminal proceedings were two separate proceedings and were totally independent in nature and one would not affect the others. In the case of Kishore Lal v. Chairman Employees'State Insurance Corp., I (2008) CPJ 13 (SC) = (2007) 4 SCC 579, the following observations are referred to :
"17. It has been held in numerous cases of this Court that the jurisdiction of a Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In Spring Meadows Hospital v. Harjol Ahluwalia it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary Court system. The act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabharathi House Building Coop. Society, the Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the For a under the CP Act have jurisdiction to entertain a complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secy. Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha. The trend of the decisions of this Court is that the should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court of any other Forum as established under some enactment. The Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.''
(Emphasis supplied)
13. It may be mentioned that this Commission in a number of cases considered similar question. In the case of NEPA Ltd. v. Madhya Pradesh Electricity Board, I (2003) CPJ 138 (NC), the following observations were made by the National Commission:
''The Claim had been denied by the opposite party. On the face of the complaint no argument is needed to show that a great deal of evidence both oral and documentary would be required for the complainant to prove its case and the claim would even otherwise show that complicated questions of facts and law would arise which is not possible for the National Commission to decide in its summary jurisdiction. Supreme Court in the case of Synco. Industries v. State Bank of Bikaner and Jaipur and Ors., I (2002) 2 SCC 1. held that such types of cases cannot be decided in summary jurisdiction of Consumer Forum. In Civil Court parties will have full opportunity to lead evidence. Consumer Forum is not meant to try the cases like the present one. In another case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714= JT 2002 (6) SCC 1, Supreme Court had held there is no difficulty for the National Commission to decide such cases involving complicated questions of law and facts. In that case the Supreme Court was considering the argument of the opposite parties - doctors that complaint which are pending against them since 1994 should be relegated to Civil Court as complicated questions of law and facts would arise. But then it is left to the wisdom of the National Commission to take up¦¦¦..or not. The case like the present one should be left to be decided by the Civil Court.''
(Emphasis supplied)
14. This Commission in the case of R.D. Papers Ltd. v. New India Assurance Co. Ltd. and Ors., I (2004) CPJ 101 (NC), observed as under:
"After going through the complaint and the written version, it appears to us that the complaint raised complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lakhs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company. "
(Emphasis supplied)
18. In Lalco Enterprises v. Union Bank of India, III 2003 CPJ 42 (NC) also 25 cheques allegedly forged were enchased. This Commission observed that it was difficult to go into question of genuine signatures of the withdrawal of each and every cheque and to get the report from Hand Writing Expert from either side.
11. In the light of aforesaid judgment, in this case also elaborate evidence is required because the complainant raises complicated question of facts, which cannot be decided by us in summary jurisdiction and the matter requires elaborate evidence, therefore, the complaint cannot be adjudicated and in this situation it is not proper for this Commission to entertain the complaint and to decide it.
12. Therefore, the complaint of the complainant, is dismissed but the complainant will be at liberty to file civil suit. The complainant will get exemption of the time spent in prosecuting this complaint for filing such civil suit.