Trust of India Vs. Ravinder Kumar Shukla,  Insc
492 (19 September 2005)
N. Variava & Dr. Ar. Lakshmanan
O R D
E R WITH (CIVIL APPEAL NOs. 4247/2004, 1659/2005, 1657/2005, 4282/2004,
4269-4270/2004, 4271-4272/2004 and 4273-4274/2004) S. N. VARIAVA, J.
these Appeals can be disposed of by this common Order as the issue involved is
stated the facts are as follows.
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.
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and thereafter the moneis were withdrawn leaving a minimum balance in the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.
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.
of the Appeals and/or Revision Petitions have been dismissed.
the dismissal of the Appeals/Revisions by the National Consumer Disputes Redressal
Commissiont, these Appeals have been filed.
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.
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
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.
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.
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.
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.
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.
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.
are questions of facts. We see no reason to interfere on questions of facts.
the circumstances, the Appeals stand dismissed. There will be no order as to