Sri Shyamal Gupta, Member

Appeal Nos. A/211/2015 and A/229/2015 emerge out of the same Order dated 12-08-2014, passed by the Ld. District Forum, Kolkata-II (Central) in CC/11/2014.  Accordingly, both these Appeals are disposed of through this common order.  Incidentally, the complaint case was allowed by the Ld. District Forum through it’s afore mentioned order.

Case of the Complainant, as narrated in the petition of complaint, in short, is that, on 03-05-2012, the Complainant booked one car by paying a sum of Rs. 5,54,424/-.  The OP No. 4 issued printed Order Booking Form dated 03-05-2012 with certain terms and conditions.  The OP No. 5 sanctioned loan amounting to Rs. 6,00,000/- to facilitate purchase of the concerned car.  The OP No. 5 directly paid the aforesaid sum to the OP No. 4.  Although full payment of the booked car was received by the OP No. 4, on one pretext or the other it avoided delivering the said car.  In such circumstances, the Complainant asked the OP No. 4 to cancel the said booking and refund the entire money received by it for this purpose.  It is alleged that the OP No. 4 issued a cheque worth Rs. 5,62,194/- on 08-08-2012.  However, when the Complainant presented the said cheque at his bank, the same got dishonoured.  Thereafter, the OP No. 4 issued another cheque on 27-09-2012.  However, this time too, the newly issued cheque of equivalent sum met the same fate.  Therefore, the complaint case was filed.

By filing WV, it is submitted by the OP Nos. 1 to 4 that after making due payment, the Complainant kept on changing the model of the car and the colour and such change was done not once but again and again.  Because of this, the OP No. 1 cancelled the said booking and refunded the sum of Rs. 5,54,424/- to the Complainant in cash against money receipt issued by the Complainant.  Subsequently, the OP No. 1 faced certain financial difficulties for which a winding up petition was filed before the Hon’ble High Court, Calcutta and the Hon’ble Court appointed an Official Liquidator, who took physical possession of the assets, properties and books of accounts of the OP No. 1.  Subsequently, the Division Bench of the Hon’ble Court stayed the winding up procedure and asked the Official Liquidator to remove the padlock from the Registered Office of this OP.  Accordingly, the said Liquidator handed over possession of the said office to this OP.  However, all documents, correspondences and books of accounts relating to various transactions are still in the possession of the said Liquidator for which this OP could not produce the concerned money receipt issued by the Complainant. 

The OP No. 5 did not contest the case.  Therefore, the case was decided ex parte against it.

Decision with reasons

It appears from the impugned order that the Ld. District Forum imposed punitive damages for a sum of Rs. 50,000/- upon the financier, i.e., Tata Capital Financial Services Ltd.  Aggrieved with such decision of the Ld. District Forum, it moved Appeal No. A/211/2015.

Parties were represented by their respective Ld. Advocates, who were heard at length at the time of hearing.  We have also gone through the documents on record.

It is the case of the OP Nos. 1 to 4 that the Complainant repeatedly kept on changing the Model No. and colour of the car for which the OP No. 1 cancelled the said booking and refunded the sum of Rs. 5,54,424/- to the Complainant in cash.

On the other hand, it is claimed by the Complainant that as the OP Nos. 1 to 4 reneged on their commitment to deliver the booked car within 15 days on receipt of full payment of the price of the subject car and repeated persuasion did not yield any positive result, he sought for refund of the total money paid towards the price of the car.  In turn, though the OP Nos. 1 to 4 issued cheque worth Rs. 5,62,194/- twice, on both occasions the same got bounced on account of insufficient balance.

It appears that the Complainant submitted photocopies of both the cheques before the Ld. District Forum.  We find that the OP Nos. 1 to 4 refrained from making any comment in this regard.  Rather, they have come up with a concocted story of refunding a sum of different figure, i.e., Rs. 5,54,424/- to the Complainant and that too without furnishing any cogent documentary proof to establish such fact.  Although it is claimed by them that due to non-receipt of all documents, including the so-called money receipt purported to have been issued by the Complainant, from the Official liquidator appointed by the Hon’ble High Court, Calcutta, they could not present the same before the Ld. District Forum, for some obscure reasons, they did not furnish copy of any correspondence being made by them with the concerned Liquidator to prove that an honest endeavour was made from their side to collect the so-called money receipt from the concerned Liquidator. The conduct of the OP Nos. 1 to 4 is not at all praiseworthy.

First of all, they did not furnish any material proof to show that the Complainant ever asked for changing the colour or model no. of the car.  If indeed the Complainant asked for changing the model no., it was inevitable to change the booking form.  However, nothing of that sort is presented before us.

Second, no money receipt is furnished from the side of the OP Nos. 1 to 4 to show that the sum of Rs. 5,54,424/- was indeed returned to the Complainant. 

Third, no explanation is given by the OP Nos. 1 to 4 regarding issuance of Cheque for a sum of Rs. 5,62,194/- without having sufficient balance in their account.  Significantly, it was done not once but twice in a row. 

Fourth, although the Complainant paid a sum of Rs. 11,54,424/- to the OP Nos. 1 to 4 (including the sum of Rs. 6,00,000/- being financed by the OP No. 5), the rationale of their endeavour to refund the sum of Rs. 5,54,424/- or Rs. 5,62,194/- to the Complainant is not understood.  It is another matter that not a single penny has yet been actually received by the Complainant.

The OP Nos. 1 to 4, therefore, cannot avoid their liability to refund due money to the Complainant and the OP No. 5. 

However, it seems, the Ld. District Forum wrongly penalized the OP No. 5 in this case.  As a financier, it sent the financed amount to the OP No. 1.  By executing an agreement with the OP No. 5 in this respect, the Complainant authorized the OP No. 5 to straightway disburse the financed sum to the dealer of the car (OP No. 1).  Thus, while the OP No. 5 acted diligently in accordance with the terms and conditions contained in the agreement in question, it was futile to find fault with its action.  We, therefore, deem it proper to exonerate this OP from all liabilities in the matter.

In view of this, we are inclined to modify the impugned order.

Hence, 

O R D E R E D

Appeal Nos. A/211/2015 and A/229/2015 be and the same are allowed and dismissed respectively.  The impugned order is modified as under:

OP Nos. 1 to 4 shall refund the sum of Rs. 5,54,424/- and Rs. 6,00,000/- to the Complainant and OP No. 5, respectively, within 40 days hence along with simple interest @ 12% p.a. over the aforesaid sum w.e.f. 09-01-2014 till full and final payment is made.  The OP Nos. 1 to 4 shall further pay litigation cost of Rs. 25,000/- to the Complainant within the aforesaid stipulated time frame.  After adjustment of the sum remitted by the OP Nos. 1 to 4 to the OP No. 5, if any excess amount is left in respect of the concerned loan account, the OP No. 5 shall refund the said sum to the Complainant along with a detail Statement of Account within 15 days of receipt of the decretal sum from the OP Nos. 1 to 4 by it.

Let the original copy of this Order be kept in the case record of A/211/2015 and photocopy thereof in A/229/2015.