Full Judgment Text
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CASE NO.:
Appeal (civil) 1619 of 2005
PETITIONER:
UNIT TRUST OF INDIA
RESPONDENT:
RAVINDER KUMAR SHUKLA, ETC. ETC.
DATE OF JUDGMENT: 19/09/2005
BENCH:
S. N. Variava & Dr. AR. Lakshmanan
JUDGMENT:
JUDGMENT
O R D E R
WITH
(CIVIL APPEAL NOs. 4247/2004, 1659/2005, 1657/2005, 4282/2004,
4248/2004,1660/2005,1652/2005,4284/2004,4283/2004, 4279/2004,
1651/2005,4275/2004,1661/2005,1663/2005,1665/2005, 4278/2004,
4280/2004,4281/2004,1662/2005,1664/2005,4276/2004, 4277/2004,
1654/2005,1658/2005,1655/2005,1656/2005,1653/2005, 1620/2005,
1621/2005,4285/2004,4286/2004,4287/2004,4288/2004, 1623/2005,
4289/2004,4290/2004,1624/2005,1622/2005,4291/2004, 4292/2004,
4293/2004,1626/2005,1627/2005,4294/2004,1625/2005, 1628/2005,
4295/2004,4296/2004,4297/2004,4298/2004,4299/2004, 4300/2004,
4304/2004,4305/2004,1629/2005,1630/2005,1631/2005, 1632/2005,
1633/2005,1634/2005,4308/2004,4309/2004,1636/2005, 1635/2005,
4310/2004,1637/2005,1638/2005,4311/2004,1639/2005, 1640/2005,
4249-4250/2004,4251-4252/2004,4265-4266/2004, 4255-4256/2004,
4261-4262/2004,4257-4258/2004,4267-4268/2004, 1649-1650/2005,
4263-4264/2004,1643-1644/2005,4253-4254/2004, 1647-1648/2005,
4259-4260/2004,1645-1646/2005,1641-1642/2005, 4269-4270/2004,
4271-4272/2004 and 4273-4274/2004)
S. N. VARIAVA, J.
All these Appeals can be disposed of by this common Order as
the issue involved is the same.
Briefly stated the facts are as follows.
The Appellant is a statutory corporation established under
Section 3 of the UTI Act, 1963. As part of its activities the Appellants
float various schemes. Under the various schemes from time to time,
the Appellant issue cheques towards maturity amount of the units
purchased and/or towards repurchase value. It appears that the
Appellant normally draw Account Payee, Non-transferable and Not
Negotiable cheques and send them to the payee by registered post.
The Appellant started receiving a large number of complaints
from unit holders alleging non-receipt of the cheques. In all 1600 unit
holders had not received cheques of the value of app. Rs. 3 Crores 35
lakhs. All these cheques were intercepted, new accounts opened in
Banks/Post Offices in the names of payees of the cheques and
thereafter the moneis were withdrawn leaving a minimum balance in
the accounts. In respect of this colossal fraud, F.I.Rs. have been
lodged, investigations and prosecution are in progress.
As the unit holders had not received the money, they filed
complaints in various District Forums. The District Forums have held
that the Appellants are bound to pay the amounts to the unit holders.
Most of the Appeals and/or Revision Petitions have been dismissed.
Against the dismissal of the Appeals/Revisions by the National
Consumer Disputes Redressal Commissiont, these Appeals have been
filed.
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The Consumer Forums have held that there was negligence on
the part of the Appellant. It has been held that the post offices were
agents of the Appellant and, therefore, the loss, if any, has to be
borne by the Appellant. It has been held that as the Appellant had not
paid the unit holders, the unit holders are entitled to receive the
money from the Appellant.
The question before this Court is whether the loss is to be borne
by the unit holder payee and/or by the Appellant. The answer to this
question would depend on whether the post office was acting as an
agent of the unit holder and/or the Appellant.
In the case of The Commissioner of Income-Tax, Bombay
South, Bombay vs. Messrs. Ogale Glass Works Ltd., Ogale Wadi,
reported in 1955 (1) SCR 185, the question was whether the
Respondent therein, which was a non-resident company, could be said
to have received payment in India for the purposes of Indian Income
Tax Act. On the request of the assessee, the amounts of the bills were
sent to them by means of cheques which were drawn in Delhi. It was
held that as the assessee had requested that the amounts be sent by
post, the post office became the agent of the assessee. It was held
that as the post office was in Delhi the assessee had received the
amounts in Delhi.
In the case of H. P. Gupta vs. Hiralal, reported in (1970) 1 SCC
437, the Appellant was a Director of a company. The Respondent had
filed a complaint under Section 207 of the Companies Act on the
ground that the dividends declared by the company had not been paid
within the prescribed time. This complaint was filed at Meerut where
the complainant resided. The question was whether the Magistrate
at Meerut had jurisdiction to try the complaint. This Court held that
Section 207 of the Companies Act casts an obligation on the company
to pay the dividend, which is declared, to the shareholders within 42
days from its declaration. It was held that the offence under Section
207 is the failure to pay dividend. It was held that the failure to pay
will arise when the warrant is not posted. It was held that the offence
was failure to post and not the non-receipt of the warrant by the
shareholders. It was held that the obligation to pay, therefore, arises
at the place where it is to be performed, i.e., at the post office where
the cheque is to be posted and not at the address at which the cheque
is to be delivered. It was, therefore, held that the Magistrate at
Meerut did not have jurisdiction as the post office was in Delhi. It was
held that it is only the Magistrate at Delhi who would have jurisdiction.
It must be mentioned that in coming to this decision this Court implied
an agreement/request from the dividend holder to send the dividents
by post.
Thus the law is that in the absence of any contract or request
from the payee, mere posting would not amount to payment. In cases
where there is no contract or request, either express or implied, the
post office would continue to act as the agent of the drawer. In that
case the loss is of the drawer.
We, therefore, asked Mr. Bhat whether in any of the matters
there was any proof of any contract that the amounts could be sent by
post or any proof that any request had been made by any of the
payees that the amount be sent by post. Mr. Bhat was also asked
whether there was any proof of any practice from which it can be
implied that the payee had requested/consented to have the cheques
sent by post. Time was taken from this Court on two occasions in
order to ascertain whether in any of the matters any such proof had
been filed. After making inquiries and taking inspections of the papers
from the lower Forums, Mr. Bhat very fairly stated that there was no
proof in any of these matters.
Mr. Bhat next argued that these are not the matters in which the
Consumer Forum had jurisdiction to adjudicate. He submitted that
there was no deficiency of service as there was no negligence on the
part of the Appellant. All the Forums have on facts held that there was
an obligation to send the amounts and that there was negligence.
These are questions of facts. We see no reason to interfere on
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questions of facts.
Under the circumstances, the Appeals stand dismissed. There
will be no order as to costs.