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CASE NO.: Appeal (civil)  1619 of 2005

PETITIONER: UNIT TRUST OF INDIA                                              

RESPONDENT: RAVINDER KUMAR SHUKLA, ETC. ETC.              

DATE OF JUDGMENT: 19/09/2005

BENCH: S. N. Variava & Dr. AR. Lakshmanan

JUDGMENT: JUDGMENT O R D E R WITH (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,  1621/2005,4285/2004,4286/2004,4287/2004,4288/2004, 1623/2005,  4289/2004,4290/2004,1624/2005,1622/2005,4291/2004, 4292/2004,  4293/2004,1626/2005,1627/2005,4294/2004,1625/2005, 1628/2005,  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,  4310/2004,1637/2005,1638/2005,4311/2004,1639/2005, 1640/2005,  4249-4250/2004,4251-4252/2004,4265-4266/2004, 4255-4256/2004,  4261-4262/2004,4257-4258/2004,4267-4268/2004, 1649-1650/2005,  4263-4264/2004,1643-1644/2005,4253-4254/2004, 1647-1648/2005,  4259-4260/2004,1645-1646/2005,1641-1642/2005, 4269-4270/2004,  4271-4272/2004 and 4273-4274/2004)

S. N. VARIAVA, 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.         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, 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 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new accounts opened in  Banks/Post Offices in the names of payees of the cheques and  thereafter the moneis were withdrawn leaving a minimum balance  in  the accounts.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.         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 Commissiont, these Appeals have been  filed.

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       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.  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 and/or the Appellant.         In 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.           In the 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.   It 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.           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.          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 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.         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 amounts and that there was negligence.   These are questions of facts.  We see no reason to interfere on

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