UNIT TRUST OF INDIAversusRAVINDER KUMAR SHUKLA, ETC. ETC.

                                                                                A
                          UNIT TRUST OF INDIA
                                     v.
                RA VINDER KUMAR SHUKLA, ETC. ETC.

                          SEPTEMBER 19, 2005
                                                                                B
            [S.N. VARIA VA AND DR. AR. LAKSHMANAN, JJ.]


        Consumer Protection Act, 1986:

      Cheques-Sent by post-Non receipt of-Complaint before Consumer C
Forum alleging deficiency in service on the part of the payer-Courts held the
payer liable to pay and negligence on its part-On appeal, held: Drawer is
liable to pay-Loss has to be borne by it, the post office being its agent in
absence of any contract or request from the drawee to send 1he amount by
post.                                                                           D
       Respondents-unit holders of the units of the appellant-company had
filed complaints before District Forums alleging that they had not received
the cheques issued by the appellant and sent through post. The Consumer
Forums held that appellants were bound to pay the amount to unit holders;
that there was negligence on the part of the appellant; and that post offices   E
being agents of the appellants, the loss was to be borne by the appellant.
Most of the Appeals/Revisions were dismissed by National Consumer
Commission. Hence the present appeals.

        Dismissing the appeals, the Court
                                                                                F
      HELD: I. 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 of 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. In
the present case there was no proof of any contract that any request had G
been made by any of the payees that the amount lie sent by post.
                                                                  1285-D-F)

     The Commissioner of income-Tax. Bombay South v. Messrs. Oga/e Glass
Works Ltd, Ogale Wadi, 1195511SCR185 and H.P. Gupta v. Hirata/, 11970) H
                                 281
    282                      SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A   I sec 437, relied on.

            2. It cannot be said 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
B   was negligence. These are questions on fact. There is no reason to interfere
    on questions of fact. (285-G-H; 286-A)

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1619 of2005.

            From the Judgment and Order dated 13.5.2002 of the National
C Consumers Disputes Redressal Commission, New Delhi in R.P. No. 1182 of
    2001.

                                        WITH

D         (Civil Appeal Nos. 4247/2004, 1659/2005, 1657/2005, 4282/2004, 4248/
    2004, 1660/2005, 1652/2005,4284/2004,4283/2004,4279/2004, 1651/2005,4275/
    2004, 1661/2005, 1663/2005, 1665/2005,4278/2004,4280/2004,4281/2004, 1662/
    2005, 1664/2005,4276/2004,4277/2004, 1654/2005,1658/2005, 1655/2005, 1656/
    2005, 1653/2005, 1620/2005, 1621 /2005,4285/2004,4286/2004,428712004,4288/
    2004, 1623/2005,4289/2004,4290/2004, l624/2005, 1622/2005,4291/2004,
E   429212004, 4293/2004, 1626/2005, 162712005,4294/2004, 162512005, 16281
    2005, 4295/2004,4296/2004,4297 /2004,4298/2004,4299/2004, 4300/2004,
    4304/2004,4305/2004, 1629/2005, 1630/2005, 1631/2005, 1632/2005, 1633/
    2005, 1634/2005,4308/2004,4309/2004, 1636/2005, 1635/2005,4310/2004, 1637I
    2005, 1638/2005,4311/2004,1639/2005, 1640/2005, 4249-4250/2004,4251-
F   4252/2004,4265-4266/2004,4255-4256/2004,4261-4262/2004,4257-4258/
    2004;4267-4268/2004, 1649-1650/2005,4263-4264/2004, 1643-1644/
    2005,4253-4254/2004, 164 7-1648/2005,4259-4260/2004,1645-1646/
    2005, 1641-1642/2005, 4269-4270/2004, 4271-4272/2004 and 4273-4274/
    2004)
G
         K.N. Bhat, M.L. Verma and Mrs. Tehmina Punvani, Shrish Kumar
    Misra, Parveen Mehndiratta, Ravi Kant, S. Wasim A. Qadri, Ms. Suvira Lal,
    Ms. Varuna Bhandari Gugnani, Ms. Pareena Swarup, V.K. Verma, Shreekant
    N. Terdal, Shakil Ahmed Syed, C. Mukund, Ashok Jain, Pankaj Jain, Bijoy
H. Kumar Jain, Ajit Bhama, Ms. Sunita Sharma, S. Uday Kumar Sagar, Ms.
              UNITTRUST OF INDIA v. RA VINDER KUMAR SHUKLA, ETC.        283

Bina Madhavan, Mrs. Pooja Gupta, Ms. Susan Zachariah, A. Venayagam, A
Hema! Seth, Sandeep Singh, Jitendra Mohan Sharma, Ms. Amrita Bhinder,
Rajan Narain, K.R. Nambiar, K. Surendran, Ms. Reena Singh, Ms. Bhakti
Pasrija, Sudhir Kulshreshtha, Arun K. Sinha, Rakesh Singh, Ajay Siwach,
M.T. George, Devandra Singh, Merusagar Samantaray, Ghanshyam, Pranab
Kumar Mullick, D.S. Mabra, Subramonium Prasad, Gopala Krishnan R., Anil B
Kumar Sangal, Nalin Sangal, Deba P. Mohanty, Ms. Hena Rizvi, Ms. Syed
Hena Rizvi, Nand Lal, Ms. peepali Puri, R.D. Upadhyay, Jawahar Chawla,
R.V. Sinha, Amit Chawla, Balraj Dewan, Vinay Kumar Garg, M.P. Shorawala,
Pradeep Dewan, Ms. Praveena Gautam, Pramod B. Agarwala, S.B. Upadhyay,
Alok Gupta, Umesh Chandra Rastogi, Bharat Sangal, Ms. Sangeeta Panicker, C
R.R. Kumar, Samyadip Chatterji, Pavan Kumar, Satya Mitra, Manish Kumar
Shahi, S.V. Deshpande, Kamlendra Mishra, P.I. Jose, K.S. Bhati, Anupam
Mishra, Sanjay R. Hegde, S.C. Paul, Ms. Roopa Paul, Mohjnder Singh,
Gurmeet Singh, Manoj Kulshrestha, Ms. Rekha Pandey, Dinesh Verma, Ms.
Suresh Kumari, A.P. Mohanty, Niraj Sharma, Dr. S.K. Verma, S.P. Sinha, D
Atul Kumar, Yatish Mohan, Vishwajit Singh, K.K. Rai, P. Parmeswaran,
Sheetal Prasad Juneja, Ms. Rachna Gupta, Ms. Inklee Barooah, Ms. Bina
Gupta and Ms. Rakhi Ray with them for the appearing parties.

      The Order of the Court was delivered by
                                                                              E
    S.N. VARIA VA, J. All these Appeals can be disposed of by this
common Order as the issue involved is the same.

      Briefly stated the facts are as follows.
                                                                              F
       The 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, G
Non-transferable and Not Negotiable cheques and send them to the payee by
registered post.

      The Appellant started receiving a large number of complaints from unit
holders alleging non-receipt of the cheques. In all 1600 unit holders had r.ot
received cheques of the value of app. Rs. 3 Crores 35 lakhs. All these cheques H
    284                    SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A were intercepted, new accounts opened in Banks/Post Offices in the names
    of payees of the cheques and thereafter the monies 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.

B         As the 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. Most of the Appeals and/
    or Revision Petitions have been dismissed. Against the dismissal of the
    Appeals/Revisions by the National Consumer Disputes Redressal Commissions,
C   these Appeals have been filed.

        The 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.
D 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.

        The 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
E and/or the Appellant.

        In the case of The Commissioner ofIncome-Tax, Bombay South, Bombay
  v. Messrs. Ogale Glass Works Ltd., Ogale Wadi, reported in [1955] I SCR
  185, the question was whether the Respondent therein, which was a non-
F 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
G that as the post office was in Delhi the aSl;essee had received the amounts in
  Delhi.

         In the case of H.P. Gupta v. Hirala/, reported in [1970] I 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
H                                                                                   ,•
        UNITTRUSTOF INDIA v. RA VINDER KUMAR SHUKLA, ETC. [VARIAVA, J.]      285
declared by the company had not been paid within the prescribed time. This           A
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      B
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       C
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. It must be mentioned that in coming to this decision this Court
implied an agreement/request from the dividend holder to send the dividents
~~                                                                                   D
      Thus 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.
                                                                                     E
       We, 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 ofany practice
from which it can be implied that the payee had requested/consented to have F
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.                                                                G
      Mr. Bhat 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
                                                                                     H
    286                    SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A amounts and that there was negligence. These are questions of facts. We see
    no reason to interfere on questions of facts.

          Under the circumstances, the Appeals stand dismissed. There will be no
    order as to costs.

B   K.K.T.                                                  Appeals dismissed.