Judgment:
Bhanwar Singh, President.
1. The instant appeal has been preferred by Sri Nizamuddin who is the real nephew of the respondent Sri Alimullah Warsi and cousin of Sri Alimullah's son Sri Mainuddin Warsi, the respondent no.2, against the impugned judgment of September 17, 2008 of the DisÂtrict Consumer Forum, Kushi Nagar and order dated 12-01-2010 passed by the same Forum. The third respondent Sri Anwar Ahmad being Son-in-Law of Sri Alimullah Warsi is the brother in law of Sri Mainuddin Warsi.
2. Whereas by the original judgment of September 17, 2008, the Consumer Forum below had allowed the complaint of the three respondents with a direction to the appelÂlant to repay their outstanding sum of Rs.1,44,000/- besides Rs.5,000/- as compensation, the other order relates to the restoraÂtion/recall application of the appellant which was dismissed as not maintainable.
3. The appellant being aggrieved of the judgment and orders referred to above filed this appeal with the averments that the disÂpute raised by the three complainants was not a consumer dispute and their complaint was barred by limitation under Section-24A of the Consumer Protection Act. Also it has been alleged that the complainants could not establish by means of convincing eviÂdence their case of the appellant having promised to render a service nor they could bring on record any receipt of Rs.1,44,000/-paid to him by Sri Mainuddin Warsi and Sri Anwar Ahmad.
4. Shortly stated, the two complainants Sri Mainuddin Warsi and Sri Anwar Ahmad had paid a total sum of Rs.1,44,000/- to Sri Nizamuddin who had promised to fetch for them service in Saudi Arabia. As pleaded in the complaint Sri Nizamuddin was workÂing as an agent of Al-salai Company which was engaged in getting employment for the Indians in foreign countries. The said comÂpany arranged for the training courses for the job seekers and also helped them in getÂting visa etc. The two complainants accomÂpanied Sri Nizamuddin to Bombay and the company aforesaid trained them as wall painter. Their visa and journey both were arranged by Sri Nizamuddin and the aforesaid company. The two complainants had flown to Saudi Arabia on 14-11-1997 but they were sent back by a foreign company on 01-01-1998 as the said company required electricians and not the wall painter. The grievance of the complainants is that the training of wall painting had been imparted to them although the foreign based company had required services of electricians.
The complainants came back to India on 01-01-1998 and as they failed to get employÂment through the good offices/services of the appellant they asked for refund of their money. From here started the bickering beÂtween the two sides. Though they were closely related to each other yet the comÂplainants, having felt cheated could not bear the consequences of the deficiency in service and, therefore, they insisted for immeÂdiate refund of their money. However, the appellant did not oblige them, rather filed, a complaint with the allegations that he had extended a loan of Rs.25,000/- to the comÂplainants and since the said money is not being repaid to him, of and on altercations between the two sides had started taking place. The complainant felt that they have been deprived not only of their money by the appellant but also they had been cheated designedly and deliberately in the entire episode as a result of which they had to come across a humiliating situation at the hands of the foreign based company which had asked them to go back to India within a short span of two weeks. The dispute beÂtween the parties had acquired serious diÂmensions and in this background, as the story goes on, Sri Nizamuddin and four more namely Sri Tauqir Ahmad, Sri Shan Ahmad, Sri Wasim Ahmad and Sri Maqsood Ahmad armed with lathies and hockey sticks had raided the house of Sri Alimullah Warsi and assaulted him and inmates of his family. Sri Alimullah Warsi and his family members gave a tough resistance to the attack of his brother and party and Sri Alimullah, the reÂspondent no.1 opened fire by his licensed gun which caused injuries to the assailants. The gunshot injuries suffered by Sri Nizamuddin's uncle Sri Alimuddin were serious and he succumbed to them.
5. Both the sides lodged their respective FIRs. Whereas Sri Mainuddin Warsi recited in his report that he and his family memÂbers were brutally assaulted by Sri Nizamuddin and his family members, the appellant Sri Nizamuddin lodged an. FIR under Section 302/34 of I.P.C. Both the parties were arrested and put on trial for variÂous offences and it eventually resulted in conviction of both the parties. The AddiÂtional Session Judge, Deoria (FCT-2) vide his judgment of 8-8-2007 convicted Sri Alimullah Warsi under Section 304(2) IPC and sentenced him to rigorous imprisonÂment for a term of seven years besides a fine of Rs.8,000/-. The other accused Sri Mainuddin Warsi and Sri Anwar Ahmad were acquitted of the said charge.
On the other hand, in the other session trial the accused Sri Tauqir Ahmad, Sri Sail Ahmad, Sri Wasim Ahmad, Sri Maqsood Ahmad and Sri Nizamuddin were convicted under Sections 147/323/149/452 IPC and sentenced to three years rigorous imprisÂonment each besides levy of fine. The apÂpeals are pending against then two verdicts of conviction and sentence. The State preÂferred an appeal as informed by Sri B K Upadhyaya against the acquittal of the sons and son-in-law of Sri Alimullah.
6. However, during these trials and ultimate conviction, the demand of Sri Mainuddin Warsi and Sri Anwar Ahmad for refund of their money collected by Sri Nizamuddin stood alive but did not. Show any sign of fulfilment. The complainants then filed a complaint under Section-12 of the Consumer Protection Act before the District Consumer Forum, Kushi Nagar. The said complaint was contested by Sri Nizamuddin with preliminary objections but at the latter stage of hearing he did not appear before the Forum below, as: a consequences ex parte proceedings were drawn and the complaint was decided with a direction to the appellant to refund the complainants' money as indicated earlier. The first question which has been raised by Sri B K Upadhyaya for our determination is as to whether it is or it is not a consumer dispute?
7. As argued on behalf of the appellant neither any money was received by the apÂpellant nor any service had been extended to him. The issue of the dispute being a conÂsumer dispute is very closely related to the facts of this case. We would, therefore, at the first instance deal with the primary question of the payment of Rs.1,44,000/- having been made to the appellant. As mentioned earlier Sri Nizammudin had denied that he ever made any promise to extend any kind of service to his cousin and his brother-in-law nor he received the amount in question. Obviously if the appellant had received any quantum of money from the two complainants Sri Anwar Ahmad and Sri Mainuddin with the promise to fetch them employment in Saudi Arabia, arrange for their visa, get them admitted in training courses for wall painting and also to arrange for their flights etc., certainly then it would be a case of rendering service for considerÂation. Sri Anil Kumar Chaubey, learned Counsel for the respondents has, with refÂerence to an investigating report of the PoÂlice Inspector dated 04-06-2006, submitted that the investigating officer found the reÂport of Sri Nizamuddin about his having advanced a loan of Rs.25,000/- to Sri Alimullah Warsi to be forged and fictitious and also he recorded a finding on the basis of his investigation that Sri Nizamuddin got Sri Mainuddin Warsi and Sri Anwar Ahmad sent to a foreign country on 14-11-1997 but they were deported back and when on their return they asked Sri Nizamuddin to refund their money, the latter got annoyed and raided the house of the complainants. In that incident the inmates of the house Sri Warsi and Ahmad were seriously injured. This report-cum-letter is worth being quoted for a better understanding of the entire disÂpute. It is, therefore, reproduced as below:-
(Matter in other language)
8. A perusal of the above report reflects upon the dispute pertaining to providing of service to the two complainants namely Sri Anwar Ahmad and Sri Mainuddin Warsi. Further, a reference to the appellant's letÂter has been made. The original letter dated 28-08-1997 has been placed before us. Its copy is already on record. Both, the appelÂlant and the respondents have filed its copÂies. Whereas Sri B K Upadhyaya, learned Counsel for the appellant has submitted that this letter, not bearing the signature of Sri Nizamuddin, is forged and fictitious and as such not reliable, Sri Anil Kumar Chaubey with reference to his (Nizamuddin's) signature at the top of the letter and his signatures on other admitted documents submits that the letter is absoÂlutely genuine and it has enclosures bearÂing date wise accounts of deposits made by the two aspirants for employment. The letÂter is an interesting reading. It is, thereÂfore, quoted as below:-
(Matter in other language)
9. Sri B K Upadhyaya, with reference to the contents of this letter, submits that it might not have been written by Sri Nizamuddin as the dispute between him and his uncle Sri Alimullah Warsi was pendÂing in a Consolidation Court There is a refÂerence in this letter to the said litigation and it appears from the language of the letter that the matter pending in the ConsolidaÂtion Court was not a serious kind of litigaÂtion as the appellant had requested his uncle to take care of the said litigation by advising him to keep on going to the court to pursue the dispute. Be that as it may, the contents of the letter bear details as to how Sri Mainuddin Warsi and Sri Anwar Ahmad could not fetch passing marks in their visa test and it was perhaps on-account of that reason that they had to come back in the beginning but subsequently on payÂment of some more money their visit to Saudi Arbia was promised to be arranged by Sri Nizamuddin. The contents of the letÂter as is evident from perusal thereof, alongwith the details of accounts clearly stipulates that the appellant Sri Nizamuddin had been working as an agent for Al-salai Company, engaged in getting employment for Indians in foreign countries.
Sri Nizamuddin repeatedly requested Sri Alimullah Warsi to arrange for more money so that the flight tickets of both the complainants could be purchased.
10. Sri Nizamuddin who testified in the criminal court admitted that he was an agent of Al-salai Enterprises, Bombay. A copy of his statement dated 01-11-2000 is at pages no.10 and 11 on record. Besides that he admits the fact of his being an agent of the said enterprises his signature on this statement very closely resembles of his sigÂnatures on the letter dated 28-08-1997, the contents of which have been quoted above. The two certificates paper nos.8 and 9 on record appear to indicate that the two comÂplainants no.2 and 3 were provided training of wall painting and they were sent to Saudi Arabia as wall painters but since the company did not require the services of the said complainants, they were asked to go back.
11. It is, thus, established from the above that Sri Nizamuddin as agent of Al-salai Company had promised to fetch the two as pirants/complainants' employment in Saudi Arabia and this promise was made by him on receipt of a sum of Rs.1,44,000/. Obviously, thus it was a consumer dispute as the appellant had made a commitment to provide jobs to the two persons by getting them trained under Al-salai Company, fetching for their visa and eventually getting them flown to Saudi Arabia. We, therefore, come to the conclusion that there was an agreeÂment between the appellant and the comÂplainants no.2 and 3 in accordance with which employment was to be provided on receipt of consideration. Accordingly we hold that it was very much a consumer dispute to be taken cognizance of by the Consumer Fora.
12. The point of limitation has been very strongly raised by Sri B K Upadhyaya. As submitted by him the cause of action had arisen soon after the two complainants Sri Anwar Ahmad and Sri Mainuddin Warsi came back to India in January, 1998 and the period of limitation would be computed from January, 1998 itself. The complaint was filed in the year 2006 and obviously it was more than eight years after. Sri Anil Kumar Chaubey has, on the other hand, argued that the appellant had not raised this plea of limitation before the Forum beÂlow and since the written statement filed by the appellant was absolutely silent on the issue, the complainants could not meet the plea of limitation before the District Consumer Forum. However, Sri Anil Kumar Chaubey has, with reference to the facts and circumstances as narrated in earlier part of this judgment, submitted in detail that the main cause of the delay in filing the comÂplaint was the tension prevailing between the parties. As added by him further the complainants no.2 and 3 namely Sri Mainuddin Warsi and Sri Anwar Ahmad returned from Saudi Arabia on 01-01-1998 and when they alongwith the complainant no.1 insisted with the appellant for repayÂment of their money, their house was raided by the appellant and his family members on 16-01-1998 in broad day light and they were mercilessly beaten with lathi and hockey sticks. The complainant no.1 Sri Alimullah Warsi had to open the fire which had resulted in casualty of the appellant's uncle Sri Alimuddin. Both sides suffered injuries and as submitted by Sri Anil Kumar Chaubey, Sri Alimullah Warsi and his famÂily members had to leave their village and run for their lives for years together. Also they were in jail and when released from the jail they had to face their trial which ended in their conviction on 8-8-2007. The acrimony between the parties had acquired serious dimensions in consequence whereof both the Session Trials had to be transferred to Deoria. There were cross FIRs, cross sesÂsion trials, lot many bickerings, acrimonies and a legal fight for their cause. No doubt there was a long lapse of time in filing the complaint but having regard to the chequered history of the entire litigation we are of the decisive view that the delay on the part of the complainants in filing their complaint was satisfactorily explained and, therefore, it is condoned.
13. Sri B K Upadhyaya has, however, referred to two decisions of the Honourable Supreme Court and N.C.D.R.C. These are as follows:-
"1. Kandimalla Raghavaiah and Co. versus National Insurance Co. Ltd. and another. [III (2009) CPJ 75(SC)]
2. V B Tyagi versus South Central Railway [III (2010) CPJ 241 (NC)]"
14. In so far as the decision of the Honoruble Supreme Court is concerned, it has been ruled that limitation period will commence from the date the cause of action has arisen and not from the date when denial has been made. This citation is not attracted towards the facts of the case in hand as in this case the plea of denial has not been taken as the commencing time for limitation; rather as mentioned above learned Counsel for the respondent has in detail explained all the circumstances which led to delay. No doubt, the three complainants who were being prosecuted for murder and who were running for their lives and went out of their village had in fact been engaged through-out this period in protecting themselves from the apprehensive attack of the appellants and his family members. Sri B K Upadhyaya with reference to these two decisions has contended that unless the explanation is in writing explaining the delay, it cannot be condoned. Perhaps, the argument is totally misconceived as it is nowhere mentioned in these two decisions that unless the explanation is in writing it canÂnot be said to be a satisfactory explanation. If we advert to the provisions of Section-24A we find the provisions as below:
"1. The District Consumer Forum, the State Commission or the National Commission shall not admit a comÂplaint unless it is filed within two years from the date on which cause of action has arisen.
2. Notwithstanding anything contained in Sub Section-1, a complaint may be entertained after the period specified in Sub Section-1, if the complainant satisfies the District Consumer Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
3. Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay."
15. There is not an iota of word in the language of the Section-24A to the effect that only an explanation in writing will be taken notice of. In other words the explaÂnation may be-oral or it may be in writing. In the case in hand, the oral explanation is justified in the circumstances of this case as the appellant had neither raised this limiÂtation issue before the District Consumer Forum in his written statement nor was it ever orally highlighted during the course of hearing. Here before this Commission the appellant has no doubt moved an applicaÂtion that the complaint was barred by Section-24A but as we have observed above Sri Anil Kumar Chaubey has given detailed Âpreview of the delay and we find it sustainÂable.
16. The other citation of the National Commission as relied upon by Sri B K
Upadhyaya relates to a theft ease against the railways. In that case even on merit the case of theft was not made out. It was on the basis of there being no merit in the complainant's case which was filed with delay that the Honourable National Commission had dismissed the complaint.
17. At this juncture, Sri Anil Kumar Chaubey has drawn our attention towards the fact of this appeal having been filed on 29-01-2010 i.e. more than 16 months after the original judgment was pronounced on 17-09-2008. However, the recall application of the appellant was decided on 12-01-2010. Sri B K Upadhyaya submits that the limiÂtation period for filing the appeal shall be calculated from 12-01-2010. If a litigation has been pursued bona fide liberal interpreÂtation for dealing with the cause of delay can be taken into consideration. However, the delay has been condoned vide order of February 26, 2010 perhaps on the same ground as we have discussed above. The appellant might have kept on waiting for filing the appeal subject to disposal of his recall application.
18. Although Sri B K Upadhyaya has submitted about the quantum of compensation that it was not based on any rational yet it seems to be a justifiable one as the money has not yet been paid to the two complainants who in search of the employment visited Bombay twice and took a futile journey to Saudi Arabia and had to come back with empty hands. A higher amount of compensation should have been awarded but since there is no cross appeal filed on behalf of the complainants we do not propose to delve upon this issue further.
19. The crux is that the impugned judgÂment deserves to be affirmed. The order dated 12-01-2010 was legally passed by the Forum below. As the original judgment was based on merit and passed with reasoning's it could not have been recalled and comÂplaint restored.
20. We thus find that it is established beyond doubt that the appellant had promÂised to render service to the complainants on receipt of consideration but committed deficiency in service as the complainants no.2 and 3 could not get the job in Saudi Arbia. The appellant is, therefore, liable to refund the complainants' money as directed by the District Consumer Forum.
21. The long and short of the discussions made above is that the appeal being devoid of merit deserves to be dismissed.
In the result, the appeal stands dismissed with Rs.5,000/- as costs.