Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed by the original complainant against order dtd.03.05.2010, passed by District Consumer Forum, Nagpur, in consumer complaint No.535/2009, by which the complaint is dismissed.

2.      The facts in brief giving rise to the present appeal are as under.

          The complainant obtained credit card from the opposite party Nos.1, 2 & 3 bearing Card No.4317 5750 1930 0137.  He alleged that he used that card and paid the amounts from time to time as per use of the card.  He further alleged that thereafter the opposite parties issued incorrect & exorbitant bill of demand.  However, thereafter on 14.11.2007 compromise was arrived at in between the complainant and the opposite parties and it was decided that the complainant would pay total Rs.18,000/- in three instalments to the opposite parties towards entire dues. He accordingly issued three post dated Cheques i.e. for Rs.3,200/-, Rs.5,000/- & Rs.9,800/-. The opposite parties encashed first Cheque bearing No.65138 for Rs.3,200/-. The complainant paid in cash Rs.5,000/- in lieu of second  post dated Cheque No.65139 and opposite parties issued receipt about the same.  Third Cheque bearing No.65140 issued for Rs.9,800/- was lost from the possession of the opposite parties and therefore, the complainant paid in cash the said amount of Rs.9,800/- to the opposite parties of which receipt was issued by the opposite parties.  It is further alleged by the complainant that thereupon also the opposite parties issued illegally bills dtd.25.04.2009, 25.05.2009 and 25.06.2009 demanding various amounts.  Therefore, he filed consumer complaint before the Forum below alleging unfair trade practice on the part of the opposite parties and praying for declaration that nothing of the opposite parties is due from the complainant and for direction to the opposite parties not to send incorrect bills in future and to pay him compensation of Rs1.00 Lac for physical & mental harassment and cost of Rs.1,000/-.

3. Notices of the said complaint were issued by the Forum to opposite party Nos.1, 2 & 3. Those notices were also served to them. But they failed to appear. Therefore, the Forum proceeded exparte against opposite party No.1 as per order dtd.16.01.2010 and against opposite party Nos.2 & 3 as per order dtd.07.04.2010. Thereafter, the Forum considered evidence brought on record and passed impugned order and thereby dismissed the complaint on the sole ground that it is not proved by the complainant that he did not use credit card after payment of Rs.18,000/- as per aforesaid settlement and as there is no evidence to show that the service of credit card are stopped by the opposite parties.

4. As aggrieved by the said order, the original complainant has filed this appeal.  We have heard advocate Mr S R Deshpande appearing for the appellant and advocate Mr Ashish Bhide appearing for respondent No.1 and advocate Mr A Daga appearing for respondent No.2. The respondent No.3 is proceeded exparte as it failed to appear before this Commission despite service of notice.

5. The submission of learned advocate of the appellant / original complainant in brief is that though the respondents did not appear before the Forum and did not deny the case of the complainant, the Forum erred in dismissing the complaint on erroneous ground. He submitted that the credit card was already blocked by the opposite parties on 14.11.2007 and therefore, the appellant never used the same after 14.11.2007 and hence, there is no question of issuance of bills after payment of Rs.18,000/- by the appellant to the respondents by way of settlement of entire claim. Therefore, the learned advocate of the appellant submitted that the impugned order may be set aside and relief sought in the complaint may be allowed.

6. On the other hand, the learned advocate of respondent No.1 submitted that the appellant did not sign letter of settlement dated 14.11.2007 and he did not pay Rs.18,000/- as per settlement on given time and thus he committed breach of terms & conditions of the settlement letter dtd.14.11.2007 and hence, the appellant cannot rely on the said letter of settlement  dated 14.11.2007 issued by the opposite party and he cannot evade his liability. Moreover, the letter of settlement dtd. 14.11.2007 also cannot be treated as agreement because its terms were not accepted and adhered to by the appellant.  He further submitted that the opposite party No.1 has rightly issued demand bills to the appellant claiming outstanding balance and thus, the Forum has rightly dismissed the complaint.  He, therefore, requested that the appeal may be dismissed.

7.  The learned advocate of respondent No.2 in brief submitted that the respondent No.2 is unnecessarily made party to the complaint as it has no power to issue credit card to anybody and there was no agreement entered into between the appellant and respondent No.2. He further submitted that as per agreement, entered into between respondent No.1 and respondent No.2, authority is given to respondent No.2 to collect the amount due from the customers of respondent No.1. Hence, it is requested by the learned advocate of respondent No.2 that the appeal against respondent No.2 may be dismissed.

8. It is seen that the letter of settlement dtd.14.11.2007 produced by the appellant is not disputed by the respondents. As per that settlement letter the appellant was required to pay Rs.3,200/-, Rs.5,000/- & Rs.9,800/- respectively on 14.11.2007, 31.12.2007 & 31.10.2008 by way of three post dated Cheques.  It is also stated in that letter that on payment of said total amount of Rs.18,000/-, as above, there will be no dues in respect of account of the appellant.

9. The appellant issued first Cheque for Rs.3,200/- on 14.11.2007, which is encashed by respondent No.1. The receipts produced on record by the appellant and not disputed by the respondents, show that the appellant deposited Rs.5,000/- and Rs.9,800/- with respondent No.1 respectively on 31.12.2007 and 22.04.2008.  Thus, the terms & conditions of the letter of instalment are duly complied with by the appellant.

10. Therefore, it is crystal clear that as Rs.18,000/- have been fully paid within time as per schedule of the letter of settlement as above, the respondents cannot claim any further amount towards the dues as against the account of the appellant, on the ground that letter of settlement is not signed by him or he did not pay Rs.18,000/- as per time limit fixed under letter of settlement.

11. However, it is seen that the respondents issued demand bills dtd.25.04.2009, for Rs.39,850.93, bill dtd.25.05.2009 for Rs.41,037.2, bill dtd.25.06.2009 for Rs.42,259.86 to the appellant despite of the aforesaid settlement and making full payment of Rs.18,000/-.

12. The Forum presumed that the said three bills of demand were issued by the respondents because of subsequent use of the debit card by the appellant. The respondents did not file their reply before the Forum and did not raise any plea before the Forum that debit card was used by the appellant subsequent to the aforesaid settlement i.e. after 14.11.2007.

13. Moreover, the respondent Nos.1 & 2 in their Written Notes of Arguments in appeal also did not raise a plea that subsequent to the settlement the appellant used debit card and on that basis the aforesaid three demand bills were issued to him. On the contrary the learned advocate of the respondent No.1 in his Written Notes of Arguments submitted that those subsequent bills were issued towards outstanding dues.  Hence, the Forum below erred in presuming that the appellant used debit card subsequent to the settlement and therefore, the subsequent bills of demand were issued.

14. We also find that since the allegations made in the complaint and the documents filed by the complainant as discussed above went unchallenged, the Forum below ought not to have dismissed the complaint on drawing incorrect presumption as above.  Therefore, we hold that the impugned order deserves to be set aside.

15. We find that as subsequent to the settlement, the appellant did not use debit card, the subsequent bills of demand issued by the respondents need to be set aside and compensation of Rs.5,000/- and cost of Rs.5,000/- need to be awarded to the appellant from respondent No.1. Accordingly, the following order is passed.

ORDER

The appeal is partly allowed as under.

i.        The impugned order is set aside.

ii.       The complaint bearing No.535/2009 is partly allowed.

iii.      The subsequent bills of demand dtd.25.04.2009, 25.05.2009 & 25.06.2009 issued to the appellant by respondent No.1 are hereby cancelled.

iv.      The respondent No.1 is not entitled to recover amount of the said bills from the appellant.

v.       The respondent No.1 shall pay compensation of Rs.5,000/- for physical & mental harassment and cost of Rs.5,000/- to the appellant.

vi.      Copy of the order be furnished to both parties free of cost.