West Bengal

Dakshin Dinajpur

CC/10/12

Ajoy Sarkar - Complainant(s)

Versus

1.The Asst. General Manager - Opp.Party(s)

Ld.Adv

12 May 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 12/2010

Ajoy Sarkar

S/o Sri Anil Sarkar

Vill & P.O. :Kardaha, P.S. Tapan,

Dist. Dakshin Dinajpur.……………………………Complainant

V-E-R-S-U-S

1. The Asstt. General Manager,

Indusind Bank Ltd.

41, Shakespear Sarani, Kolkata-17

2. The Branch Manager,

Indusind Bank Ltd,

Krishna Bhawan, Sukanta More, N. H. -34, Malda-732101.

3. The Branch Manager

Indusind Bank Ltd, Mongalpur More,

P.O. & P.S. : Balurghat,

Dakshin Dinajpur. …………………Opposite Parties

For complainant ………………- Sri Nihar Roy, Ld. Adv.

For OPs …………………… - Sri Chandan Sarkar, Ld. Adv.

Date of Filing : 08.04.2010

Date of Disposal : 12.05.2011

Judgment & Order dt. 12.05.2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Ajoy Sarkar on 08.04.2010 against the officials of Indusind Bank Ltd. alleging deficiency in service.

Shorn of details complainant’s case as made out in the said complaint is that on 23.11.2004 he entered into an agreement bearing No. WD 000294 with the Branch Manager, Indusind Bank Ltd., Malda – 732101, -- the OP 2 for obtaining financial assistance for purchasing a motor vehicle. It was agreed that the OP Bank would finance Rs.1,80,000/- and that the said amount would have to be paid back by the complainant together with the finance charges of Rs.42,300/- (i.e. an aggregate amount of Rs.2,22,300/-) in 60 monthly installments by 23.11.2009. On 27.12.2004 i.e. after expiry of about a month the complainant paid in cash before the OP 2 Rs.11,400/- being the aggregate amount of 3 installments @ Rs.3,700/- per month and a further sum of Rs.300/-. On 11.03.2005 the complainant also deposited with the OP 2 Rs.11,100/- being an amount equivalent to 3 installments @ Rs.3,700/- per month. Thereafter the complainant made over to the OP 2 some post-dated cheques drawn on Bangiya Gramin Vikas Bank. Such cheques were encashed in due time and some time in advance, the first one having been encashed on 18.3.2005.

Towards the end of December, 2008 the OP 2 informed the complainant that there was no cheque to encash. On 12.1.09 the complainant paid in cash an amount of Rs.11,100/- and thereafter made over to the OP 2 some post-dated cheques. Such cheques were encashed in due time and lastly on 9.4.2009.

At the time of entering into the agreement the OP Bank kept one key of the vehicle. After the dues payable by the complainant had been paid, the complainant approached to the OP 2 and to the OP 1- the Branch Manager, Indusind Bank Ltd. Balurghat Branch for issuance of loan clearance certificate

but neither the such clearance certificate was issued in favour of the complainant nor the key was returned back.

On 9.3.2010 the General Manager, Indus Bank Ltd. – the OP 1 herein, through his Advocate sent to the complainant a notice alleging that the complainant committed breech of the agreement and that a sum of Rs.54,847/- had fallen due to the Bank. Such a notice was not only intolerable but caused mental agony to the complainant. The complainant is thus entitled to get compensation not only for mental agony suffered by him in view of the said notice but also for early encashment of some of the cheques for which he was deprived of interest in respect of some period.

Lawyer’s notice issued from the end of the complainant in response to the above Lawyer’s notice of OP 1 and demanding the clearance certificate also went unheeded.

In the backdrop of such circumstances, the complainant brought the complaint praying for directing the OPs to issue loan clearance certificate, to deliver back the key of the vehicle and to pay to the complainant a sum of Rs.20,000/- in view of deprivation of interest and a further sum of Rs.80,000/- by way of compensation for mental agony caused to the complainant.

The proceeding has been contested on behalf of OPs on whose behalf a written version was presented on 27.10.10 disputing the material allegations. It has been stated that the OPs’ never encashed cheques in advance in violation of the terms of agreement. It has been their case that after the completion of payment of installment by the complainant the OP Bank decided to issue the clearance certificate but was waiting for the concerned department to make the clearance certificate ready. They also made it known to the complainant in course of his paying visit to the Bank. In fact, the complainant received clearance certificate from the Bank on 22.4.10 and he is proceeding with the complaint thereafter aiming at unlawful gain. In their written version the OPs prayed for dismissal of the complaint with costs.

Upon the pleadings of the sides following points come up for determination :-

POINTS

1. Is the proceeding maintainability ?

2. Has there been deficiency in service on the part of OPs?

3. Should the reliefs sought for by the complainant be granted ?

Decision with reasons

The averments made in the complaint have been verified by the complainant himself. In support of his case the complainant also brought on record as documentary evidence, beside others, copy of a statement in respect of the contract of finance as Ext.1, that of a Lawyer’s notice issued from the end of OP 1 demanding payment of an amount of Rs.54,847/- as Ext.2, copies of Lawyer’s notice issued from the end of the complainant as Ext. 6 & 6 (a) and a couple of postal A/D cards as Ext. 5 & 5(a).

The averments made in the written version of the OPs, on the other hand, have been verified by an authorized signatory. The OPs also brought on record copy of a declaration in writing made by the complainant as Ext.A.

No other evidence was adduced in the case of even though opportunity was given from the end of the Forum.

Let us now enter into the determination on the three points formulated above.

Point No.1:

On point of maintainability it was urged by the Ld. Counsel for the OPs that as the complaint is one alleging breach of agreement, this Forum under the CP Act does not have jurisdiction and that remedy lies in Civil Court only. Here the agreement alleged in the compliant is one for advancement of finance service by the OP Bank to the complainant who undertook to avail the service for consideration. So the complainant has been a ‘consumer’ within the meaning of Sec. 2(1)(d)(ii) CP Act. The allegation in the written statement is one that the said service hired by the complainant suffered from deficiency in some respect. So the complaint is one contemplated in Sec. 2(1)(c) of the said

Act. Under such circumstances we are unable to accept the argument that the complaint is untenable before this Forum as in the complaint, there has been allegation of breach of agreement. On the materials on record we did not find any thing else which may render the proceeding untenable. We thus decide the Point No. 1 by holding that the present proceeding is maintainable.

Point No.2:

The deficiency in service alleged in the complaint virtually appears to be two fold :

1. that some of the post dated cheques made over by the complainant to the OP 2 by way of payment of installments were got encashed by the OP Bank in advance in breach of agreement for which the complainant was deprived of interest;

2. that after the making of payment of all dues payable from the complainant the OP Bank did not issue clearance certificate despite approaches made therefor from the end of the complainant. Rather they served Lawyer’s notice demanding payment of an amount of over Rs.54,000/-.

In course of hearing of argument Ld. Counsel for the complainant drew our attention to the cash payment receipt Ext.5 (series) and two A/c Statement Ext.4 (series) in his attempt to establish before us that the OP Bank got encashed the post-dated cheques in advance in breach of concerned agreement.

Ld. Counsel appearing for OPs, on the other hand, urged that the copy of the concerned agreement has not been filed by the complainant and so the clear picture as to the agreement has not been shown before this Forum by the complainant and that in the situation, there is hardly any material to infer that there has been deficiency in service on the part of the OP Bank. It was further urged by him that the OPs are not in possession of the said agreement.

We feel it mentioning here that the copy of concerned agreement in writing has not been brought on record from any of the sides. The OP in Para-15

of their written version appear to have averred that the complainant received the loan clearance certificate from the OP Bank on 22.4.10. Consideration of the circumstances does not persuade us to accept the contention advanced by the Ld. Counsel for the OPs that OPs are not in possession of the concerned written agreement.

The consideration of the averments made in the complaint as to the substance of the agreement, the evasive denial of these averments in written version of the OPs and the particulars appearing in the Statement of A/c for the concerned contract brought on record by the complainant as Ext.1 persuades us to view that in the concerned agreement in which the OP Bank advanced a loan of Rs.1,80,000/-, the said loan amount and finance charges of Rs.42,300/- i.e. aggregate amount of Rs.2,22,300/- was to be paid to the complainant in 60 monthly installments, the first installment of Rs.4,000/- being payable by 23.12.04 and the remaining 59 installments in successive months, the last of which being payable by 23.11.09.

Though the Ld. Counsel for the complainant relied upon the entries in the A/c Statement of B.G.V.Bank – Ext. 4 & 4(a) to urge that some of the post dated cheques made over to the OP 2 by him were got encashed in advance depriving him of interest, from the particulars appearing in those A/c Statements, it cannot readily be regarded that some of the post-dated cheques were encashed by the OP Bank in advance.

Further, a post-dated cheque cannot be ordinarily be encashed on a date earlier than that written on the cheque. That apart, as agreement was for making payment by the complainant in monthly installment receipts of cash payment Ext.3, 3(a) & 3 (b) go to show that the complainant made payments at least thrice, amounts which were equivalent to about three installments. Having kept in view the materials on record and the circumstances we are not in a position to infer that the OP Bank got encashed some of the post-dated cheques in advance in breach of the terms of the agreement.

Next we turn to the other allegation i.e. the allegations as to the OPs’ failure in issuing the loan clearance certificate despite making of payment of all sums payable.

Here it has been the claim of the complainant in his POC that the such installment was got released by the OP Bank under a cheque which was encashed on 9.4.09. The OP in their written version do not appear to have denied it specifically. In the Lawyer’s notices dt. 8.3.10 issued from the end of the OP Bank brought on record by the complainant as Ext.2 the OP Bank purports to have alleged that on 2.3.10 a sum of Rs.54,847/- remained payable as dues from the complainant. Such OP Bank in Para-15 of the written version claimed that the complainant was given loan clearance certificate on 22.4.10. Such claim is in consonance with the written receipt brought on record by OP Bank as Ext.A. From the side of the OPs neither any case has been brought that in between 2.3.10 and 22.4.10 the complainant made payment of the said sum of Rs.54,847/- demanded from the end of the OP Bank under Lawyer’s notice Ext.2 nor any document has been filed to show that the complainant made payment of the said loan during the said time span 2.3.10 to 22.4.10. From a consideration of the materials on record we thus accept the claim of the complainant that the payment of all dues payable from the complainant was actually realised in full by the OP Bank by way of encashment of a cheque lastly on 9.4.09.

Though in his POC the complainant claimed that after the completion of payment of the dues payable from him, he requested the OP Bank several times for issuance of the loan clearance certificate, here there is no evidence in that regard, apart from, of course, the documentary evidence brought on record as Ext.6 and 6 (a) - complainant’s Lawyer’s notice and the postal A/d cards Ext.5 and 5(a).

The said Lawyer’s notices Ext.6 & 6(a) purported that under such notices the complainant claimed that the dues had been paid by 9.4.09 and threatened to bring legal proceeding in the event of OP Bank’s failure to furnish the loan clearance certificate within 7 days. Postal A/d card Ext.5 does not purport on which date the said notice was served upon the OP 1 but the other postal A/d card Ext.5 (a) shows that the OP 2 received the said notice on

23.3.10. Ext.A purported that the loan clearance certificate was served upon the complainant only on 22.4.10 i.e. on a date after the institution of the instant CC case by the complainant. Thus the loan clearance certificate was not given to the complainant even within the fortnight from the service of complainant’s Lawyer’s notice demanding the same. OP Bank also does not appear to have expressed any regret for the issuance of their Lawyer’s notice dt. 8.3.10 (Ext.2) demanding payment of a further sum of Rs.54,847/- even though all dues were paid by the complainant by 9.4.09 i.e. about 11 months before the issuance of the said Lawyer’s notice.

Failure on the part of OP Bank in furnishing the said loan clearance certificate even within a fortnight from the complainant’s Lawyer’s notice despite complainant’s making payment of all dues nearly a year back and laying of demand for a huge sum of over Rs.54,000/- amount to a deficiency in service on the part of OP Bank. Point No.2 is thus answered.

Point No.3:

In the complaint the complainant has prayed for directing the OP Bank to issue the loan clearance certificate, to return key of the vehicle, to pay to the complainant a sum of Rs.20,000/- on account of interest which the complainant has claimed to have been deprived of in view of advance encashment of cheques by the OP Bank and further a sum of Rs.80,000/- by way of compensation for mental pain and agony.

We have already stated that it has been the case of OPs made out in Para-15 of their written version that the complainant received such certificate from the OP Bank on 22.4.10 i.e. on a date subsequent to the institution of this case. Such case of the OP Bank does not appear to have denied by the complainant by adducing evidence. Rather, a declaration in writing purported

to have been made by the complainant and brought on record from the side of the OP Bank as Ext.A is in consonance with the above claim of the OP Bank. So no further declaration is required to be given in respect of furnishing of loan clearance certificate.

As to the delivery of the key of the vehicle it has been averred in Para-7 of the amended complaint that at the time of agreement, the OP company kept the key of the concerned vehicle but the same has not been returned. The said averment as to the making over of the key does not appear to have been denied by the OP Bank in their written version. In the situation, we think it proper to issue a direction for returning the key of the vehicle to the complainant.

In course of our discussion on Point No.2 we have virtually observed that the complainant has not succeeded in establishing that the OP Bank got encashed some of the post-dated cheques in advance in breach of terms of the agreement. Such being the situation we do not think it proper to issue a direction for making payment of certain amount on account of alleged deprivation of interest by the complainant.

Turning to the prayer for compensation for mental agony, we find that under the complainant’s Lawyer’s notice dt. 19.3.10 threatening was that unless the loan clearance certificate be not supplied within 7 days the complainant would bring legal action. It is not apparent from the postal A/d card as Ext.5 the date on whose the said Lawyer’s notice was served upon the OP 1. Postal A/d card Ext.5 (a) shows that the complainant’s Lawyer’s notice was served upon the OP 2 on 23.3.10. The loan clearance certificate and Form 35 papers were served upon the complainant on 22.4.10 i.e. within a month from the service of notice upon the OP 2 and that too, as we find from the case record, before the issuance of notice of this proceeding upon the OPs. However, we have in course of our discussion on Point No.2 found that the OP Bank under their Lawyer’s notice dt. 8.3.10 demanded payment of a sum of about Rs.55,000/- claiming that the said amount remained due from the

complainant even though the dues payable from the complainant were paid in full by 9.4.09. Having kept in view the attendant circumstances, we think it proper to allow the complainant to be paid a sum of Rs.1,000/- by way of compensation for mental agony suffered by him. In the situation, we also think it proper to direct the OP Bank to pay to the complainant a sum of Rs.250/- by way of costs of this proceeding.

However, here the OP 2 – Malda Branch of OP Bank agreed to advance the financial assistance. In the complaint we find nothing to hold that the OP 3 –Mangalpur Branch should be held responsible. In the situation, we think it proper to direct the OPs 1 & 2 – the two officials of the OP Bank to comply with the above directions.

Point No.3 is accordingly decided.

In the result the complaint succeeds.

The date of completion of service of notice upon the OPs is not apparent from the case record. However, the OPs entered appearance in the case on 25.8.10 which was fixed in the notice for S/R and Appearance. Instant proceeding is thus getting disposed of over 8 months after the appearance of the OPs in the case. Such delay has been caused in view of amendment of complaint after the case had once been fixed for final hearing and also on ground of adjournment sought for from the end of the OPs.

Under such circumstances, it is.

O R D E R E D

That the complaint u/s 12 CP Act brought by the complainant Sri Ajoy Sarkar on 8.4.2010 is allowed on contest giving the directions mentioned hereinafter.

The OPs 1 & 2 shall return the key of the concerned vehicle to the complainant and shall pay a sum of Rs.1,000/- by way of compensation for mental agony and a further sum of Rs.250/- by way of costs of this proceeding within 30 days from the service of copy of this order upon them.

In the event of non compliance with the directions stated above or any part thereof, the complainant shall have the liberty to put such order in execution.

Let plain copies of this order be furnished to the parties forthwith free of cost.

Dictated & corrected

………Sd/-…….

(B. Niyogi)

President

We concur

………Sd/-…….

(Swapna Saha)

Member

………Sd/-…….

(S.K. Ghosh)

Member