H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 133/2007.

Date of Decision 17.3.2009.



Akriti Professional Services Pvt. Ltd. (Franchise of ICICI Bank)

Mol Khad, Baijnath Road Palampur, District Kangra, through its

Manager, Atul Seghal.



……..Appellant.

Versus



1. Sh. Vinod Butail S/o Sh. Jai Lal Butail,

R/o 206, Civil Lines, Dharamshala.,



2. Pathankot Vehicleades Pvt. Ltd. Dalhousie Road,

Mamoon Chowk, Pathankot, through its Manager.,



3. ICICI Bank Ltd. Madya Marg, Sector-9, Chandigarh (UT).



…….Respondents.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.



For the Appellant. Mrs. Monika Singh, Advocate vice counsel

Mr. Bhupinder Singh Kanwar, Advocate.



For the Respondent No.1. Mr. Shashi Bhushan Singh Chandel Advocate vice Mr. Peeyush Verma, Advocate.



For the Respondent No.2 Mr. Ajay Chandel, Advocate.



For ICICI Bank. Mr. Vijay Verma, Advocate.





O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



Bank was added as party on 25.9.2007. Dispute in this appeal is within very narrow compass. Admittedly respondent No.1 had purchased a Maruti 800 vehicle from respondent No.2. Appellant is the agent according to Mrs. Monika Singh of the ICICI Bank, whereas according to Mr. Verma it was an associate and dealings with between both of them were on principal to principal basis. Therefore for acts of one, the other can’t be held responsible.

2. At the time of hearing it was not disputed that the price of the vehicle was Rs. 2,07,805/-. Admittedly the bank had provided finance in the sum of Rs. 1.70 lacs to respondent No.1 through the appellant. This position is again not in dispute intra-parties.

3. At this stage Mr. Chandel on behalf of the dealer of the vehicle-respondent No.2 submitted at the bar, that instead of remitting Rs. 1.70 lacs, i.e. the sum financed by the bank, it had remitted a sum of Rs. 1,63,350/-. Thus sum of Rs. 6,650/- was withheld by it. Further according to Mr. Chandel question of releasing the vehicle by his client would only arise in favour of respondent No.1, when the entire sale consideration was paid. When the deficiency of Rs. 6,650/- was made good by respondent No.1 on 3.3.2004, vehicle was delivered to respondent No.1. As such in our opinion there is no dispute between respondent No.1 on one side and appellant, respondent No.1, as well as the bank on the other.

4. The financed amount was repayable in the instalment of Rs. 5400/- numbering 36. However Mr. Verma clarified that only 35 cheques were encashed by his client, whereas sum of Rs. 6,650/- was withheld by his client. This according to Mr. Verma was legally permissible as per the terms and conditions of the documents subject to which finance was provided by his client through the appellant to respondent No.1. Out of Rs. 6650/- his client has deducted first instalment of Rs. 5400/- and Rs. 1250/- as processing charges. Thus according to him his client has neither indulged into unfair trade practice nor was deficient in service in any manner whatsoever so as to invoke the jurisdiction of the Foras under the Consumer Protection Act, 1986.

5. Another serious contention raised by Mr. Verma is, that even if it be assumed for the sake of argument without conceding, that his client has committed deficiency in service as alleged by respondent No.1, it was not party in the complaint filed by respondent No.1 before the District Forum below, therefore by setting aside the impugned order and after adding his client it should be afforded an opportunity of being heard before the District Forum below and then whatever order is passed, parties will be bound by it.

6. We shall deal with this submission first urged by Mr. Verma. Ordinarily this plea would have been upheld and case remanded back to the District Forum below. However for reasons to be recorded hereinafter, this plea is being rejected in the face of the admitted factual position. Respondent No.1 had admittedly issued 36 cheques towards instalments in the sum of Rs. 5400/- each. 35 out of these have again been admittedly encashed in time by the client of Mr. Verma. We are unable to understand that why the amount was deducted of first instalment despite

having obtained 36 cheques in advance towards the instalments. Learned counsel for the bank had no answer.

7. Faced with this situation Mr. Verma made an attempt by submitting that the last cheque i.e. 36th was meant as security payment cheque. We are unable to appreciate this tactic of the bank. Reason being that here is a customer who was provided finance by the client of Mr. Verma and his cheques are honoured. Therefore we are unable to understand why the amount was deducted when the bank had secured itself by obtaining 36 cheques. We are further unable to uphold the plea of the bank about the security payment cheque as pointed out by Sh. Verma. In these circumstances, we feel that the bank was not only deficient in service, but prima facie, it indulged into unfair trade practice. This observation we are making being sanguine of the fact that the bank was not party in the proceedings before District Forum below, on the admitted facts as noted hereinabove, therefore there is no question of remanding the case as submitted by Mr. Verma.

8. Another reason to take this view is that the respondent No.1 is vexed twice for one instalment. As financier, the bank was bound to remit the sum of Rs. 1,70,000/- i.e. the amount for which vehicle was financed by it. It admittedly paid Rs. 1,63,650/- to respondent No.2. For getting possession of the vehicle, this respondent paid Rs. 6650/- to respondent No.2. Further it is admitted case of the bank that it had withheld Rs. 6650/- towards repayment of first instalment and processing charges instead of getting all the cheques encashed.

9. Now the question arises as to how to sort out this case. So far appellant and the bank is concerned, it had deposited the amount awarded by District Forum below in this appeal. It will be at liberty to recover the same from the bank on the strength of this order. Bank allowed the last cheque towards repayment of the final instalment to get time barred, it has to bear the consequence. Because it created this situation by its own act and conduct and for that neither the appellant nor respondent No.1 can be made to suffer.

10. No other point is urged.

In view of the aforesaid discussion the impugned order passed by District Forum Kangara at Dharamshala, in Consumer Complaint No. 149/2004 on 27.6.2006 is modified to the extent that so far amount deposited by the appellant is concerned, the same with up-to-date interest accrued on it will be released to respondent No.1 by the office, and at the same time it is further held that by executing this order, the appellant shall be entitled to recover the said amount with interest in terms of the order of District Forum below in Complaint No. 149/2004 from the client of Mr. Vijay Verma. Subject to this modification appeal stands disposed of.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

17th March, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.