N. KANNADASAN J.
1. The respondents in the appeal are the complainants and the appellants herein are the opposite parties before the District Forum in OP.Nos.314/1999 and 315/1999 respectively.
2. The complainant in OP.No.314/1999 is the mother and the complainant in OP.No.315/99 is her son.
3. The complainants have approached the District Forum by contending that even though they have deposited a sum of R.1 lakh each in receipt No.010 and (deposit by mother) and Receipt No.009 (deposit by the son) respectively, the opposite parties have failed to return the deposits and as such there is deficiency in service.
4. The opposite parties resisted the complaint by contending that the complainants have approached the criminal courts for relief, as against the opposite parties, and as such the complaint is not maintainable. Though the opposite parties have filed version, they remained exparte and the District Forum has passed an order in allowing the complaint as stated therein, against which the present appeal is filed.
5. The learned counsel for appellants would submit that both complainants have approached the Criminal Court and the complaint filed by filed by the mother, is now transferred and pending before the Special Court, which is constituted in pursuance of the Tamilnadu Protection of Interest of Depositors (In financial establishment) Act 1997, and so far as the complaint preferred by the son, the same was tried by the Magistrate Court, Egmore. Though a conviction was ordered, an appeal is pending on the file of the Court.
6. Per contra, the learned counsel for respondents would submit that the complainants have approached the Consumer Fora, making allegation with regard to the deficiency in service on the part of the opposite parties and the District Forum having accepted the plea raised by them based on merits and the said orders do not call for any interference by this Commission. The learned counsel would further contend that if the complainants are forced to pursue their remedy through the criminal case filed by them, the matter will be further delayed and it would cause irreparable loss to them. The learned counsel further submitted that the complaint filed before the criminal courts are to try a criminal offence, which is entirely different, whereas the Consumer Fora was approached making allegation with regard to the deficiency in service.
7. We have considered the rival contentions of the learned counsels of the respective parties and perused the materials available on records. Though several contentions are raised by either side, there is no dispute to the effect that already Criminal Courts have entertained the complaint filed by the complainant. In fact, the complaint in Op.No.314/99 filed by the mother, against which the appeal is filed in FA No.220/2002. Originally a complaint was lodged on the file of the II Metropolitan Magistrate Court, in C.C.No.1024/2000. The said complaint was later on transferred to the Special Court, constituted under the Depositors Act 1997. Sec.6 (3) of the said Act proceeds to the effect that any pending proceedings in anyother court to which the provisions of the said Act applies shall stand transferred to the Special Court. In the light of the said provision of the Act, the said case was transferred to the Special Court, which is admitted by the learned counsels on either side. It is always open to the complainant to pursue her remedy in the said case before the Special Court, constituted for the said purpose.
Similarly, as far as the complaint preferred by the complainant in OP.315/99, against which the appeal is preferred in FA No.221/2002, here also originally a complaint was registered in CC No.4470/99 on the file of the II Metropolitan Magistrate Court, Egmore. It is not in dispute that the learned Magistrate has passed an order awarding compensation payable by the opposite parties. Though an appeal is filed as against the said order of the Magistrate, the same is pending on the file of the High Court, the fact remains that the complainant in OP.No.315/99 has already approached the learned Magistrate under the Negotiable Instruments Act. In the said proceedings a specific stand is taken to the effect that when the complainant has approached the opposite party, seeking refund the deposit, a cheque was given by the opposite parties, and the same was dishonoured and hence a complaint was preferred by him before the Magistrate Court under the Negotiable Instruments Act. Under the said circumstances, it is always open to the complainant to pursue his remedy in the same proceedings, which was initiated by him.
8. Even though an argument was advanced that there are several deposits, which were not honoured by the opposite parties, it is always open to the complainants to approach the Special Court, constituted for the said purpose, seeking appropriate relief for the refund of the same. Reser
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ving liberty to the complainants either to pursue their remedy in the pending cases or by filing appropriate complaints in respect of their deposits, we are constrained to set aside the order of the District Forum. It is made clear that any observation rendered herein shall not stand in the way of the parties to agitate their respective claims in either way. 9. Accordingly, the appeals are allowed, reserving liberty to the complainants as stated above. The mandatory deposit made by the appellants may be returned by the registry on filing a memo.