Order-9.

Date-17/06/2015.

Complainant Subir Das by filing this complaint has submitted that complainant being un-employed youth intended to start a business for his livelihood by means of self-employment.  In the year 2013 op no.2 told the complainant that they are running a business of supplying photocopy machine (Xerox Machine) and as such complainant prayed for a Prime Minister’s Employment Genaration Programme (PMEGP) loan for Rs. 5 lakhs and same was sanctioned on 22.02.2014 through bank and on the basis of the quotation of the machine, Bank authority, Bank of Baroda, Tala Park Branch disbursed a draft of Rs. 4,54,000/- dated 24.03.2014 in favour of the op no.1 on account of loan application and the said draft was duly received by the op no.1 and money receipt was issued by op no.1 and after receiving the said draft op encashed the same and he was liable to deliver a new colour photocopy machine to the complainant and that was promised and assured by Durga Chatterjee.

          Thereafter complainant used to visit the office of the ops right from April 2014 and requested them to deliver the Xerox machine.  But op no.2 vide letter dated 23.06.2014 informed the complainant to take delivery of the machine on 04.07.2014  and complainant went to the office of the op on the said date but found that the door of the office was closed and it is crystal clear that their assurance vide letter dated 23.06.2014 is nothing but a hoax and complainant found that after receipt of the money, op remained silent to deliver the said photocopy machine and after expiry of few months complainant went to the office of the op and to his utter surprise complainant found that the door of the office was under lock and key and even Durga Chatterjee did not care to receive any telephone calls and after a vigorous attempt complainant talked over telephone to one Sushanta Sil, employee of the said Durga Chatterjee who assured that machine would be delivered within 7 days, but all are in vain.

          But fact remains that op neither supplied the machine nor refunded the money and as a result complainant suffered much and has been facing financial loss because complainant has to pay the bank interest  at the rate 10.25 percent p.a. on the loan account.  But the machine has not been delivered by the op no.1 and curiously enough complainant received an Advocate letter dated 10.12.2014 from the op no.1 whereby Ld. Advocate not to speak of redress of complainant’s grievances and same shall be delivered on receipt of the letter, complainant went to the office, but even then it was closed and being negligent and deficient manner of service and deceitful manner of trade on the part of the op, this complaint is filed praying for redressal.

          Practically after repeated attempt, notices were served upon the ops, but ops did not appear to contest this case and ultimately this case was fixed for exparte hearing and accordingly on the basis of the materials on record, we are entering into decide the dispute finally.

                                                          Decision with reasons

          On proper consideration of the complaint including the written version and also considering the application form for financial assistance under PMEGP for the year 2013-14 and also considering the sanctioned order issued by Bank of Baroda, Tala Park Branch dated 22.02.2014, it is found that complainant applied for financial assistance under PMEGP for the year 2013-14 for self-employment and for his livelihood and bank sanctioned Rs. 5 lakhs and ultimately disbursed Rs. 4,54,000/- to the Calcutta Machineries for supplying Digital Colour Xerox Machine and op received the cheque from the bank issued in favour of Subir Das.

          But at that time the machine was not supplied.  Thereafter complainant requested the op to deliver the machine, but that was not delivered even after encashment of the said cheque of Bank of Baroda, Tala Park Branch on 25.02.2014 and thereafter on 23.06.2014 op sent a letter to the complainant for taking delivery of the machine on 04.07.2014.  Complainant went to the office of the op, but it was found that the said office was closed and door was under lock and key.  After that complainant went here and there.  But ultimately failed to get the said machine.

          Subsequently on 10.12.2014 a lawyer’s letter was sent by the op Calcutta Machineries, alleging complainant did not receive the said machine and brought the allegation that complainant has not shifted the said machine from op no.1’s office and in fact from the said letter dated 10.12.2014 and 23.06.2014, op Calcutta Machineries and its proprietor Durga Chatterjee has not yet handed over the said machine even after receipt of the said amount through Bank of Baroda and that is admitted by the op’s lawyer dated 10.12.2014.

          Most interesting factor is that in this case op one after another changed his address and notices were sent and that was refused and subsequently it was served upon Durga Chatterjee at his residence, but even then he did not turn up to contest this case.  Fact remains that bank also received the notice, but bank did not contest.  But truth is that bank paid the said amount of Rs. 4,54,000/- vide cheque in support of payment of price of the said machine and that has been received by the op Durga Chatterjee as proprietor of the Calcutta Machineries.

          But truth is that ops’ failed to prove that complainant received the said machine as yet, rather it is proved that op failed to give the same for which he finally sent a letter only to show that machine was in his custody.  But complainant did not get such Xerox machine.  But the plea of the op nos. 1 & 2 are false and fabricated for which we are convinced to hold that the entire allegation as made by the complainant is true and there is no ground to dis-believe unchallenged testimony of the complainant including the documents which are issued by the ops and truth is that complainant has no doubt been deceived by the op nos. 1 & 2 and at the same time Bank Authority also without ascertaining the delivery of machine, handed over cheque to the op for some ill purpose and it was not the duty of the bank to hand over cheque unless and until the delivery of goods is made.

          But in the present case bank authority did not act properly.  So, apparently it is the laches of the bank authority also for handing over such cheque against the loan account of the complainant without confirming the delivery of the machine of the complainant.  In the result negligent and deficient manner of service and at the same time deceitful manner of trade and unfair trade practice as practiced by the op nos. 1 & 2 is well proved.  At the same time bank’s callousness in this regard is well proved in view of the fact, it is the duty of the bank whether the machine is delivered, but that has not been considered.  But the entire procedure for getting loan under PMEGP was processed by the Bank of Baroda.  So, Bank authority op no.3 also did not act properly and for the above negligent and deficient manner of service on the part of the op Bank, complainant has been harassed and in fact complainant is till now unemployed youth and his life has been nipped in the bud for the over act of the Bank of Baroda, Tala Park Branch for which this complaint succeeds.

          Hence, it is

                                                                ORDERED

          That the complaint be and the same is allowed exparte with cost of Rs. 10,000/- against the op nos.1 & 2 and their proprietor Durga Chatterjee and same is also allowed exparte against op no.3 but without any cost.

          Op nos. 1 & 2 are hereby directed to hand over the Xerox machine as per receipt of Quotation No. 92 and as per Receipt dated 25.02.2014 within one month from the date of this order or to pay bank the entire amount of Rs. 4,54,000/- along with interest  at the rate 12 percent p.a. w.e.f. 25.02.2014 and till its full payment to the complainant.

          For causing mental pain and agony and for suffering and also for adopting unfair trade practice and for deceitful manner of trade and also for loss daily income by the complainant for not starting his business, op nos. 1 & 2 shall have to pay compensation of Rs. 1,00,000/- to the complainant.

          Op nos. 1 & 2 are hereby directed to comply the order very strictly within one month from the date of this order, failing which for non-compliance of the Forum’s order, penal damages  at the rate Rs. 300/- shall be paid till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

          Op no.3 Bank of Baroda is hereby directed to pay a sum of Rs. 25,000/- for rendering negligent and deficient manner of service and for handing over the cheque to the op nos. 1 & 2 without ascertaining the delivery of the Xerox machine to the complainant by the op nos. 1 & 2 and said amount shall be paid within one month from the date of this order.  If it is not complied by the op no.3, in that case, penal damages  at the rate Rs. 200/- per day shall be assessed till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

          Even if it is found that op no.3 Bank of Baroda, Tala Park Branch is reluctant to comply the order, in that case penal proceeding u/s 27 of C.P. Act 1986 shall be started against op no.3 for which further penalty and fine shall be imposed against op no.3.