While reiterating that if any litigant approaches any Judicial Fora by making false assertions in its complaint and tries to mislead the Judicial Fora, then such litigant is not entitled to any relief in equity and such petition should be thrown away at the threshold itself, NCDRC imposed costs of Rs 50,000 on a man for making false averments in the complaint and also for casting uncalled aspersions on the State Commission. Earlier, the complainant had approached district forum alleging “deficiency in service” on the part of a company Anklist Exim Inc. in removing the defects of a gold testing machine purchased from the company. In its defense, the Company contended that the complainant had taken the contradictory stand with regard to the receipt of gold testing machine in question by him. It was averred, that in the complaint it has been claimed that the complainant had already received the gold testing machine but it was not working properly, whereas in the legal notice sent by the complainant, it has been pleaded that the Company has not supplied the gold testing machine after having received the full amount of consideration money. Deciding in favor of the complainant, District forum directed the company to replace the machine and also to pay Rs 55,000 to the complainant. In appeal filed by the Company, State Commission modified the said order and directed the Company to only pay Rs 55,000 to the complainant. Challenging the State Commission's order, complainant filed revision petition before NCDRC, blaming his counsel for deliberately misleading the state consumer commission by wrongly submitting that the company had replaced the defective machine. After perusal of material on record, NCDRC held the complainant guilty of misleading the Court by making false and contradictory averments as it was submitted by the complainant before the state commission that he had received the machine and the legal notice sent by his counsel to the firm showed that it was yet to be received. While dismissing the revision petition, NCDRC also directed the complainant to pay for punitive damages.
REVISION PETITION NO.2201 OF 2014
Print Page
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.2201 OF 2014
(Against the order dated 19.3.2014 in Appeal No.FA/434/2013 West Bengal State Consumer Disputes Redressal Commission, Kolkata)
Noor Islam Mondal, son of Harun
Rasid Mondal,
Versus
Anklist Exim Inc. (Company) a
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
Pronounced on: 11th November,2014
Present revision petition has been filed under Section 21 of Consumer Protection Act, 1986 (for short, Áct’) by the Petitioner/Complainant challenging order dated 19.3.2014 passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata (in First Appeal No.434 of 2013).
2. Petitioner’s case is, that he purchased a gold testing machine from Respondent/Opposite Parties for a consideration of ₹13,72,750/-, after obtaining loan under PMEGP 2010 – 2011 Scheme. Since, purchase he found that the machine was not giving right reading regarding clarity of the gold. Therefore, he informed Respondent No.3 for removing the defects in the said machine. But, Respondent No.3 did not respond. Ultimately, petitioner served an Advocate’s letter dated 18.05.2011 upon respondent No.3 requesting him to supply one gold testing machine of same description within seven days but that too remained unheeded. Having no other alternative, petitioner filed a consumer complaint before the District Consumer DisputesRedressal Forum, Howrah (for short, ‘District Forum’) praying for direction to the respondents to refund ₹13,72,750/-, including interest thereon and to pay ₹3,00,000/- towards compensation.
3. Respondents in their written version denied all the material allegations stating inter alia, that complaint case was not maintainable for lack of territorial jurisdiction. It was stated that petitioner had earlier filed a complaint case before the District Forum, Hooghly on the same cause of action, which was rejected by the District Forum, Hooghly, for lack of territorial jurisdiction.
4. On merits, defence of respondents is, that petitioner is taking the contradictory stand with regard to the receipt of gold testing machine in question by him. It has been averred, that in the complaint petitioner has claimed that he has already received the gold testing machine but it is not working properly, whereas in the legal notice dated 18.5.2011 sent by the counsel for the petitioner, it has been pleaded that respondent has not supplied the gold testing machine after having received the full amount of consideration money. Thus, complaint filed by the petitioner is false and vexatious and is liable for dismissal.
5. It is an admitted fact that petitioner had earlier filed a consumer complaint before the President, District Forum, Hoogli. On appearance, Opposite parties took an objection with regard to jurisdiction. The District Forum, Hoogli passed an order dated 19.3.2012 observing that it has no jurisdiction and case has to be filed in a proper court or jurisdiction. Thereafter, fresh CDF Case No.45 of 2012 was filed before the District Forum, Howrah.
6. District Forum, Howrah, vide order dated 22.3.2013, allowed the complaint and passed the following directions;
“The O.P. no. 3 be directed to replace the old machine by a new one with same model and same specification together with guarantee certificate for at least 06 months from the date of replacement of the machine or alternatively refund the entire amount (sell value) of Rs.13,72,750/- (cost of purchase of gold testing machine) within 30 days from the date of this order.
The dilatory tendency of the O.P. no. 3 for not attending the fault rectification for more than one year the O.P. is saddled with a cost ofRs. 50,000/-. The cost so realized, 50% of the same (Rs.25,000/-) shall be deposited to the Consumer Welfare Fund and the rest to be received by the complainant.
The O.P. no.3 do pay a compensation of Rs.25,000/- to the complainant for causing prolonged pain and harassment.
The complainant is further entitled to litigation costs of Rs.5,000/-.”
7. Being aggrieved, respondents filed appeal before the State Commission, which partly allowed the appeal. It directed the respondents to pay₹50,000/- towards compensation and ₹5,000/- towards litigation cost to the petitioner.
8. Aggrieved by the order of the State Commission, petitioner has filed this petition.
9. We have heard the learned counsel for the petitioner and gone through the record.
10. The main plank of petitioner’s counsel argument is that, the earlier counsel for petitioner before the State Commission has deliberately misled it, by making a wrong submission that respondents have replaced the defective gold machine. In fact, the machine in question is still lying in the custody of the petitioner and same has not been repaired.
11. The State Commission in its impugned order observed;
“It appears from the submission of the Ld. Advocate for the Respondent that defective machine has already been replaced. Having regard to the harassment and mental agony suffered by the Complainant we are of the considered view that the Complainant /Respondent is entitled to get compensation and cost.”
12. In Para No.9 of the complaint, it has been averred;
“9. That the Branch Manager, Punjab National Bank, Ittachuna Branch, Hooghly has granted loan amount of the Company on 25-02-2011 vide Bank Draft No.T.S.T. -580104 and TST-580105 for Rs.13,72,500.00. The said amount has been paid by Punjab National Bank to the Company on behalf of Petitioner. The said money has been received by Hitendra Patel, Branch Manager ofDomjur Branch for company as Opposite Party No.3 on 25.2.2011. So the Company has received the price money of the Gold Testing Machine and delivered the machine on 22nd march, 2011 to the Petitioner at Domjur Branch, Distt. Howrah. The Petitioner received the machine at Domjur, Distt. Howrah on 22.3.2011.”
13. Thus, as per above averments made in the complaint, petitioner had received the machine at Damjur, Distt. Howrah on 22.3.2011.
14. Further, the main defence of respondents as per their written version is;
“11. That moreso, the Advocate of the complainant Swapna Mukherjee sent a legal notice on 18.05.11 to the opposite party no.2 to the effect that the gold testing machine was not supplied by the opposite party no.2 to the complainant after receiving the full amount of consideration money, but in the petition of complaint, the petitioner did not made his statement in accordance with the legal notice set by his Advocate on 18.05.11 instead the petitioner claimed that he had already received the gold testing machine but it was not working properly. Be as the case may be. The petitioner himself has been debarred from his own stand and he himself, contradict to his averments with that of the legal notice sent by his Advocate and as such the petition of complaint filed by the petitioner before the learned Forum is therefore frivolous and vexatious.”
15. Thus, as per averment made by the petitioner in his complaint he had received the machine on 22.3.2011. But, surprisingly, after receiving the machine, counsel for petitioner had sent a notice dated 18.5.2011, to respondent no.3 making following assertions;
“(iii) that very unfortunately you after having received the full amount of consideration under Quotation/Proforma Invoice deliberately did not supply the item of said Gold Machine till today;
In the circumstances, I, therefore, request you to supply one Gold Testing Machine XRF (6900) with 3.0 software to myabovenamed client within seven days from the receipt of this notice, in default my abovenamed client will be compelled to take legal action against you and your concern mentioned hereinabove for committing offence of fraud, cheating etc. upon him as per provisions of law, both Civil and Criminal, without any further reference, please note.”
16. Therefore, after going through the above averments made in the complaint as well as the legal notice dated 18.5.2011 sent by the counsel for the petitioner to respondent no.3, it is manifestly clear, that either averments made in the complaint are false or legal notice dated 18.5.2011 sent by counsel for petitioner is wrong.
17. It is well settled, that if any litigant approaches any Judicial Fora by making false assertions in its complaint and tries to mislead the JudicialFora, then such litigant is not entitled to any relief in equity. Such petition should be thrown away at the threshold itself.
18. Be that as it may, the ground on which present revision petition has been filed states;
“For that the Hon’ble State Commission has made a wrong finding by placing reliance on the oral and unverified submission of the Ld. Lawyer of the petitioner who, with an ulterior motive, deliberately misled the Commission by making a wrong and untrue submission as in reality the respondents have not replaced the defective gold testing machine till date which is still lying in the custody of the petitioner.”
19. Thus, petitioner has shifted the entire blame on its lawyer who had appeared on his behalf before the State Commission. In view of the petitioner’s conduct as discussed herein before, even assuming for arguments sake, that petitioner’s lawyer had made some unverified submissions before the State Commission with an ulterior motive and had deliberately misled the Commission, then why petitioner remained silent and why he did not take any action against his previous lawyer. Therefore, the above ground taken in the revision petition, appears to be an after thought.
20. Moreover, it is well settled that judicial record has to be taken on its face value. Hence, no motive can be attributed to the State Commission. Since complaint filed by the petitioner itself is based on falsehood and wrong averments, we do not find any illegality or infirmity in the impugned order. The present petition under these circumstance, is hereby dismissed with punitive damages of ₹50,000/- (Rupees Fifty Thousand only) for making false averments in the complaint and also for casting uncalled aspersions on the State Commission.
21. Petitioner is directed to deposit the cost by way of demand draft in the name ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, he fails to deposit the cost within the prescribed period, then he shall be liable to pay interest @ 9% p.a., till realization.
22. List for compliance on 19.12.2014.
……………………………………...
(V.B. GUPTA, J)
PRESIDING MEMBER
……………………………………...
(SURESH CHANDRA)
MEMBER
Sg.
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