Bijoy Kr. Sarangi Vs. Mohimohan Tripathy and Another - Court Judgment

R.C. Jain, Presiding Member:

1. Aggrieved by the order dated 04.12.2007 passed by the Orissa State Consumer Disputes Redressal Commission, Cuttack (for short the State Commission) in C.D. Appeal No. 406 of 2005, Bijoy Kumar Sarangi (who was arrayed as opposite party No.5 in the complaint filed before the District Consumer Disputes Redressal Forum, Khurda, Bhubaneswar) has filed the present petition purportedly under Section 21(b) of the Consumer Protection Act, 1986 (for short the Act). The appeal before the State Commission was also filed by the petitioner- herein against the order dated 23.02.2005 passed by the District Forum Khurda in complaint case No. 382 of 2003. By the said order, the District Forum had partly allowed the complaint filed by the complainant respondent No.1 herein ex-parte against the opposite parties with a direction to the opposite parties to refund the balance deposited amount of Rs. 3,30,000/- (Rupees three lacs thirty thousand only) to the complainant within a period of one month from the date of receipt of the copy of the said order with the stipulation that in case of default, the complainant shall be at liberty to recover the said amount along with interest @ 18% per annum in accordance with law. The State Commission dismissed the appeal and upheld the order passed by the District Forum by observing as under:

œ2. The appellant is one of the directors of the Real Estate “ respondent No.6. Respondent Nos. 2 to 5 are other directors. The case of the respondent No.1 is that he deposited total amount of rupees 5,00,000/- on different dates with the appellant and respondent Nos.2 to 6 for allotment of a homestead at Baramunda, Unit-8, Bhubaneswar. He approached to them several times to do the needful. But as it was not done, he filed a F.I.R. on the basis of which G.R. Case No. 905 of 2001 was registered in the court of the S.D.J.M., Bhubaneswar. The appellant gave an undertaking to refund the full amount of rupees 5,00,000/- within one month, but only rupees 1,70,000/- was refunded. The appellant and respondent Nos. 2 to 6 despite service of notice on them did not appear and contest the case.

Annexure-5 to the complaint is an undertaking dated 16.5.2001 furnished by the appellant to refund rupees 5,00,000/- to the respondent no.1 within one month. There is no material to show that pursuant to the undertaking, he refunded the whole amount of rupees 5,00,000/- except rupees 1,70,000/- as admitted by the appellant.

3. For the reasons mentioned above, we do not find any valid ground to interfere with the impugned order. The appellant and respondent nos. 2 to 6 are hereby directed to comply the order of the District Forum by 31.01.2008 failing which action under Section 27 of the Consumer Protection Act, 1986 will be taken against them.?

2. We have heard Mr. S.K. Pattnaik, learned counsel for the petitioner but had not the advantage of hearing the say of the respondents as they remained unrepresented on record at the time of hearing of the petition although, there was representation on previous dates of hearing.

3. Since the Revision Petition pertain to the year 2008 and was filed against the concurrent findings of the fora below, we consider it expedient to hear and dispose of the revision petition. Mr. S.K. Pattnaik, learned counsel for the petitioner would assail the concurrent findings and orders passed by the fora below primarily on the ground that the same are not based on the correct and proper appreciation of the facts and circumstances of the case and the evidence and material produced on record, the findings being least in consonance with the settled legal position. In this connection, his submission is that both the fora below have gravely erred in relying and acting upon an undertaking dated 16.5.2001 given by the petitioner herein in the police station in connection with FIR lodged by the respondent-complainant against the FIR dated 21.03.2001 lodged by the respondent No.1-complainant against the petitioner and other directors of the company alleging cheating on their part. The said undertaking is couched in the following language:

œUNDERTAKING

I shree Bijay Kumar Sarangi age about 46 years, S/o Late Giridhari Sarangi, Plot No. 117/3353 Jayadev Vihar, P.S. Nayapally, Bhubaneswar do undertake that on negotiation with Mr. Devendra Kumar Mohanty Executive director of M/s. Viswakarma Real Estate Pvt. Ltd. I will ensure refund of Rs. 5,00,000.00 to Mr. Mahimohan Tripathy, Plot No. 56, Suryanagar, Bhubaneswar or registration of a plot of like consideration in his favour within one month i.e. 16.06.2001.

Sd/-

Bijay Kumar Sarangi

16.5.2001?

4. Counsel for the petitioner strongly contended that the said undertaking having been given by the petitioner before the police officer is hit by the provisions of Section 26 and 27 of the Indian Evidence Act and therefore cannot be said to be voluntary in nature. We have noted down this submission only to be rejected because the above undertaking cannot be said to be in the nature of confession made by the petitioner before the police officer. On reading of the undertaking, it would appear that it was in the form of a settlement reached between the parties pursuant to a negotiation and the petitioner had voluntarily and on his own free will had agreed to pay a sum of Rs. 5,00,000/- to the petitioner within a period of one month from the date of making of the said undertaking. By no stretch this can amount to confession and it is only to be treated as an admission on the part of the petitioner. Not only that the petitioner had given the said undertaking but the said undertaking has been partly realized on the ground as the petitioner has already paid a sum of Rs. 1,70,000/- out of Rs. 5,00,000/- to the complainant pursuant to the said undertaking and only the balance amount of Rs. 3,30,000/- which was not paid even after when considerable time had passed that the complainant was compelled to file the complaint for the recovery of the balance amount. In our opinion, the orders passed by the fora below are eminently justified in the facts and circumstances of the case and suffer from no illegality, material irregularity much less any jurisdictional error which warrants interference by this Commission.

The Revision Petition is accordingly dismissed. Parties to bear their own costs throughout.