India Infoline Securities Private Limited Rep. by Its Manager Vs. Consumer Guidance Society Rep. by Sri Pothuru Rama Krishna Anjani Kumar and Another - Court Judgment

Oral order:(Per Honble Justice Sri D.Appa Rao, President)

The learned counsel for the respondent, Mr.Masthan Vali, reported ‘no objection for the party in person to conduct his case.

Heard both sides.

This is an appeal preferred by opposite party No.1, the Manager of India Infoline Securities Private Limited against the order of the District Forum directing it along with opposite party no.2, the Managing Director to pay Rs.1,85,000/- together with interest at 9% p.a. and costs of Rs.2,000/-.

      The brief facts leading to the filing of the appeal are that the complainant filed a complaint against the appellant and the Managing Director of the company alleging that he deposited Rs.2,22,000/- with the appellant for purchase of one lot of GMR INFRA, 25 RELIANCE CAPITAL, 25 RELIANCE ENERGY, 200 CAIRN INDIA, 200 IDBI BANK, 1000 ASHOK LEYLAND. However, they were not allotted and even the amount was not refunded. On persuasion, the appellant gave a cheque for Rs.35,000/- and the same was bounced on the ground of insufficient funds and later they promised to pay but failed to pay the same. On that a registered notice was issued but to no avail. Therefore, he filed the complaint for recovery of the amount of Rs.1,85,000/- with compensation of Rs.20,000/- and costs.

When notice was issued to the address mentioned by the very appellant, it was returned with an endorsement ‘absent evidenced from the endorsements made by the post man repeatedly. Notice issued to the Managing Director of opposite party No.2 was served. In the light of the endorsement of post man, a substituted notice by publishing in ‘Janata daily newspaper of Vijayawada was ordered, however, there was no response.

Thereupon the complainant in proof of his filed his affidavit evidence and got marked Exs.A1 to A8.

The District Forum after considering the evidence placed on record had categorically opined that the complainant had deposited an amount of Rs.2,22,000/-. Later the cheque that was issued for Rs.35,000/- bounced on the ground of insufficient funds vide Ex.A2. The complainant issued a legal notice, Ex.A3, evidenced under two acknowledgements, Ex.A4. Since he did not get any reply he filed the complaint for realization of the amounts.         The District Forum after satisfying with the evidence adduced in this regard, directed both the appellants to pay Rs.1,85,000/- together with interest at 9% p.a. and costs of Rs.2,000/-.

Aggrieved by the said order, opposite party No.1, Manager, preferred this appeal contending that the District Forum did not appreciate the fact that no notice was served against him. Taking advantage of friendship of the complainant with the postal staff, they got the notice returned. Moreover, the manager has issued a cheque in his personal capacity which cannot be treated as an admission. No document was filed to prove that he ordered purchase of shares by depositing the said amount. There was no deficiency in service on his part and therefore the appeal be allowed by setting aside the order of the District Forum.

The point that arises for consideration is whether the order of the District Forum is vitiated by any mis-appreciation of fact or law in that regard?

Admittedly the complainant has filed this complaint for recovery of the amount deposited and also placed an order for purchase of one lot of GMR INFRA, 25 RELIANCE CAPITAL, 25 RELIANCE ENERGY, 200 CAIRN INDIA, 200 IDBI BANK, 1000 ASHOK LEYLAND against the appellant with the following cause title

               India Infoline Securities Private Limited,

               Represented by its Manager,

               Mr.M.V.Chakravarthi Kumar,

               One Town, Kothapet,

               Vijayawada-520 001.

and opposite party No.2 with the following cause title.

               M/s.India Infoline Securities Private Limited,

               Represented by its Managing Director

               Nirlon Complex, Building No.24

               1^st floor, opposite Western Express Highway,

               Goregaon (East), Mumbai-400 063

               Maharashtra.

When the District Forum issued notice by way of registered post, opposite party no.2, the Managing Director received but did not choose to contest. Now opposite party no.1, the appellant contends that he did not receive any notice. A perusal of the record discloses that the registered notice addressed to the appellant was returned with an endorsement ‘absent by the post man, repeatedly mentioning the dates when the approached opposite party No.1 to serve the notice. Obviously by way of precaution, the District Forum also ordered substituted notice in daily newspaper at Vijayawada, despite which he did not choose to contest. It is not as though he was not aware that the complainant filed a complaint, in fact, before filing of the complaint, he issued a legal notice which the appellant as well as opposite party has received under acknowledgements, Ex.A4. Therefore, it is obvious that the appellant does not want to contest before the District Forum. In fact, in one of the grounds of appeal, the appellant went to an extent of stating that such an endorsement was obtained from the postman in view of friendship of the complainant with him. If that were to be true, the appellant could have complained it to the Superintendent of Post Office, he cannot allow to make allegations of this kind against a public officer contrary to presumption him under Section 114 (g) of Evidence Act. We do not see any merits in stating that no notice was ordered and that he was not given an opportunity to contest. The appellant knowing full well that the complaint was filed did not choose to contest. We do not see any merits in the appeal.

In the result this appeal fails and is accordingly dismissed. There shall be no order as to costs.