Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellant/Complainant being aggrieved with the relief awarded to him in the impugned order dated 27.04.2015 passed by the Ld. District Forum, Unit—II in Complaint Case No. CC/499/2014.
Ld. District Forum, in the impugned order, allowed the complaint on contest with cost of Rs. 10,000/-. The Respondents/OPs were directed to refund a sum of Rs. 73,930/- and to pay a compensation of Rs. 25,000/- for the mental pain and agony. Entire amount of Rs. 1,08,930/- (73930+25,000+10,000) was directed to be paid within one month from the date of the impugned order, failing which, as ordered, the Respondents/OPs should have to pay a penal damage @ Rs.5,000/- a month till full satisfaction of the decree.
The Respondents/OPs were further directed to pay penal damage of Rs. 25,000/- to be deposited to the Forum within the same deadline.
As also directed, the Respondents/OPs would enjoy liberty to put the order into execution in case of non-compliance of the order.
A counter Appeal u/s 15 of the C.P Act was filed by the Appellants/OPs, the Respondents/OPs herein, in Appeal No. A/609/2015 challenging the same impugned order which, since arose from the same Complaint Case, was given an analogous hearing and would be governed by the instant order.
The fact is that the Appellant/Complainant in the instant Appeal, an unemployed youth, being attracted by a newspaper advertisement published by the Respondents/OPs, the organization dealing with services like providing jobs to the needy people, came into an Agreement with the Respondents/OPs dated 23.02.2011 where it was agreed upon that the Appellant/Complainant would be provided with a job in private airlines. As per the said Agreement, the Appellant/Complainant was supposed to pay a service charge of Rs. 20,000/- to the Respondents/OPs on which an amount of Rs. 5,000/- was to be paid as an initial down payment and the rest amount of Rs. 15,000/- was to be paid after joining the service.
It was agreed that from the date of the Agreement, the entire placement procedure would take two months to complete all the documentations and 15 days extra for final opinion to the duty/work by the first party, the Respondents/OPs, to the second party, the Appellant/Complainant and as agreed to further, in case of failure to provide the placement within the time period, first party would have to refund all the service charges to the second party without objection.
The Appellant/Complainant made payment of Rs. 5,000/- in cash on the same date on which the Agreement was executed and he paid subsequently an amount of Rs. 18,780/-, including service tax, in phases.
The Respondents/OPs, however, failed to keep themselves in line with the Agreement by not offering any job to the Appellant/Complainant even after a long lapse of the deadline scheduled therein. Aggrieved Appellant/Complainant then contacted the Respondents/OPs and demanded the entire amount paid to them. The Respondents/OPs, in response to the said demand, issued a cheque amounting to Rs. 15,000/- in the name of the Appellant/Complainant which, ultimately, was dishonoured by the Bank. On further approach to the Respondents/OPs, expressing grievances against their unlawful activities, the Appellant/Complainant was paid only Rs. 2,500/- in cash as part payment.
Astonishingly, the Appellant/Complainant received one “so called” offer letter from “Go Airlines India Pvt. Ltd.” wherein an amount of Rs. 45,000/- was asked for to be deposited with the said airlines organization as refundable security. The Appellant/Complainant paid the said amount to one Somnath Dev, the agent of the said airline.
No job offer being found forthcoming even after observance of all formalities by the Appellant/Complainant as per Agreement, the Appellant/Complainant preferred to resort to the legal path by filing a Complaint Case before the Ld. District Forum. The judgment and order, put under challenge in the instant Appeal, disposed of the said Complaint Case.
We have heard submissions of the Appellant/Complainant in person and the Respondents/OPs through their Ld. Advocate.
The Appellant/Complainant submitted in brief the fact in issue in the same lines as it was narrated in the Complaint Case. He drew the notice of the Bench to the running pages 39, 41 and 43 wherein offers for appointment in two airlines viz, “Go Airline India Pvt. Ltd.” And “Bhadra Airline” were issued in his name. The offers, as contended, he did not like to accept as, what was stated, the same were not befitting for him and their veracity was questionable as there was no indication about undergoing observable formalities like interview etc.
He expressed his dissatisfaction with the relief awarded to him in the impugned order viewing the same too less an amount compared to the degree of offence committed by the Respondents/OPs through their unlawful trade.
The Ld. Advocate for the Respondents/OPs, per contra, submitted that the impugned judgment and order was passed by the Ld. District Forum out of utter misconception on the issue. Pointing out the running pages 39, 41 and 43, the Ld. Advocate submitted further that the offers for appointment in two airlines were made to him which he did not accept. So, the allegations for non-fulfilment of terms as per Agreement should not be imposed upon his client. The Ld. Advocate vehemently objected the claim of the Appellant/Complainant towards payment of security to the tune of Rs. 45,000/- which, as stated by him, was nothing but a ploy of the Appellant/Complainant to extract money from the Respondents/OPs with a view to deriving an unjust enrichment.
The Ld. Advocate prayed for the Appeal to be dismissed setting aside the impugned judgment and order.
In reply, the Appellant/Complainant drew the notice of the Bench to running page 31 which being the Bank’s statement of his mother’s Account, showed a withdrawal of Rs. 45,000/- on 30.11.2012. As submitted, that amount he had borrowed from her mother for making payment as security to the Respondents/OPs.
Perused the papers on record. Considered submissions of the Appellant/Complainant in person and Ld. Advocate appearing on behalf of the Respondents/OPs.
It appeared that the Agreement for providing the job was executed without making therein any reference as to the category of job. The Appellant/Complainant, as appeared, was offered appointments in two airlines as per commitment which he refused to accept. The reason for his becoming so choosy in accepting the offer was not explained up to the satisfaction of the Bench.
As there was no contradiction, we had no hesitation to accept that the Appellant/Complainant made payment of Rs. 23,780/- (5,000+18,780). Such payments were also corroborated by the money receipt at running page 22 and the last page of the Agreement at running page 27. We did not find any evidence or corroborating documents in respect of payment of Rs. 45,000/- as security as was, allegedly, paid by the Appellant/Complainant as security. The statement of Bank Account of his mother showing withdrawal of money on 30.11.2012 cannot be any conclusive proof of payment of the said amount to the Respondents/OPs in absence of the corroborating money receipt, particularly when, running page 22 left an indication that the Appellant/Complainant had knowledge of obtaining money receipt as the supportive documents of any payment.
The Bench bore an adverse observation about any Agreement for appointment in exchange of money. The entire operation appeared not to be in due observance of the procedural formalities. The Appellant/Complainant’s expectation of getting an appointment through facing an interview was seemingly out of logic in a process, out of the way.
The Agreement appeared to be revealing about refund of money in case of non-fulfilment of the terms by the Respondents/OPs. There was, therefore, no certainty of the job to be provided. Surprisingly, the Appellant/Complainant, in a dreamy concept, calculated a fantastic amount of loss and compensation taking for sure that he would be provided with the job of a definite amount of salary as mentioned in the complaint.
The curtain on the questionable issue might have been possible to be removed had the airlines companies and Sri Somnath Dev, the agent who, allegedly, had received the money on behalf of the Go Airlines India Ptv. Ltd. were made parties to the complaint.
It also appeared that the Appellant/Complainant avoided to take into reckoning the amount of Rs. 2,500/- which he received back from the Respondents/OPs, running page 34.
We also did not find the Respondents/OPs’ innocence in the entire process. Admittedly, they received the money to the tune of Rs. 23,780/- for providing the job. Admittedly, they could not provide job within the given deadline as per Agreement and accordingly they were liable, in terms of the said Agreement, to refund the entire amount they received, with interest.
The record revealed that the Respondents/OPs, admitting their lapses, already refunded an amount of Rs. 2,500/- in cash. What appeared to us a graver offence was that they deceived the Appellant/Complainant by issuing a cheque towards refund for an amount of Rs. 15,000/- which the Appellant/Complainant could not encash as the same was dishonoured, running pages 69 and 70.
The circumstances narrated above, led us to conclude that there was contributory negligence on the part of both sides. We are afraid, we are having no alternative
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but to allow the refund of only Rs. 21,280/-, deducting the amount of Rs. 2,500/-, already refunded, from the substantiated payment of Rs. 23,780/- with interest @ 9% from the date of Agreement till date. We do not intend to pass any order towards payment of cost, compensation and penal damage. Hence, Ordered that the Appeal stands allowed in part. The Respondents/OPs are directed to refund an amount of Rs. 21,280/- with simple interest @ 9% p.a. from the date of Agreement till the date of payment to the Appellant/Complainant. The payment has to be made within 45 days from the date of the impugned order, failing which, further simple interest @ 9% p.a. shall accrue to the decretal amount, inclusive of interest, from the date of default till the entire amount is fully realised. Impugned judgment and order stands set aside. The Appeal bearing No. 609/2015 shall also be governed by the instant order for the reasons already narrated hereinabove. Let a copy of this order be placed in the record of the Appeal case No. 609/2015.