DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.510 of 20-08-2014

Decided on 19-11-2015

Munish Kumar S/o Suresh Kumar R/o # 17178, St.No.4, Aggarwal Colony, Bathinda.

........Complainant

Versus

1.The Manager, Central Bank of India, Arya Samaj Chowk, Bathinda.

2.BDA, Bathinda, through its Estate Officer.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Smt. Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.R.P Singh, counsel for the complainant.

For Opposite parties: Sh.Naveen Goyal, counsel for opposite party No.1.

Sh.N.P Singh, counsel for opposite party No.2.

ORDER

M.P Singh Pahwa, President:-

1. The complainant Munish Kumar (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties The Manager, Central Bank of India and Others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that Bathinda Development Authority invited applications under different categories of plots i.e. 100 sq. yards, 200 sq. yards, 300 sq. yards and 400 sq. yards for phase 4 and 5 in Model Town, Bathinda. As per scheme of BDA, the earnest money for respective plots were to be paid at the time of submitting applications. The complainant applied for one plot measuring 100 sq. yards by availing finance facilities of opposite party No.1 (Recognized and authorized bank of BDA). Opposite party No.1 issued earnest money in favour of BDA after completing documentary formalities. Since then the complainant is regularly making payment of interest amount to opposite party No.1. At the time of issuing loan, opposite party No.1 received security cheque from the complainant. The name of complainant is still appearing in the waiting list of plots.

3. It is alleged that opposite party No.1 deficiently and illegally presented the security cheque bearing No.722715 dated 26.7.2013 of Rs.1,14,651/-, it was got dishonoured as it was presented without any plausible reasons and without informing the complainant. In this way, opposite party No.1 violated the terms and conditions of agreement. Opposite party No.1 has initiated the proceedings U/s 138 NI Act illegally. The complaint case is pending in the Court of Chief Judicial Magistrate Bathinda for 11.8.2014. Due to irresponsible behaviour of opposite party No.1, the complainant had to force arrange and furnish surety in the complaint case. The complainant has to face mental agony, harassment, financial and reputation loss. He availed the finance facility from opposite party No.1 by getting financed of Rs.1,10,000/- as such he is consumer of opposite parties.

On this backdrop of the facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed compensation of Rs.2 lacs on account of mental agony, harassment, financial loss etc.; Rs.22,000/- as litigation expenses paid by him to his counsel for litigation U/s 138 NI Act. Hence, this complaint.

4. It is relevant to mention that originally, this complaint was filed against opposite party No.1 only.

5. Upon notice, opposite party No.1 appeared through its counsel and filed an application for impleading BDA Bathinda as party. In view of statement of counsel for complainant, application was allowed vide order dated 29.10.2014 and BDA was impleaded as party i.e. opposite party No.2.

6. Opposite party No.1 failed to file written version within stipulated period. Opposite party No.2 appeared through counsel and contested the complaint by filing its written version. In its written version, opposite party No.2 raised legal objections regarding cause-of-action; locus-standi; non-maintainability; jurisdiction; non-joinder and mis-joinder.

7. It is further pleaded that the complainant has not come before this Forum with clean hands and has concealed the material and true facts from this Forum. As per BDA record, the complainant had requested it for withdrawal of his earnest money on 11.9.2014 and his earnest money alongwith interest @ 5.5% per annum has already been refunded to him as per terms and conditions of BDA Enclave scheme and as per rules and regulations of BDA/PUDA. The complaint involves intricate questions of law and facts, which cannot be decided in summary proceedings by this Forum The complainant is estopped to file this complaint by his act, conduct and acquiescence. The complainant has filed false, frivolous and vexatious complaint to his knowledge. The complaint be dismissed with penalty of Rs.50,000/- U/s 26 of 'Act'.

8. On merits also, opposite party No.2 admitted that the complainant applied for one plot measuring 100 sq. yards in BDA Enclave scheme vide application form No.10207 and deposited required earnest money with the application through Central Bank of Inida. Draw of plots was conducted and name of complainant was kept in the waiting list of successful candidates. On 11.9.2014, the complainant requested BDA for withdrawal of his earnest money. As such, his earnest money alongwith interest @ 5.5% per annum was refunded to him through Central Bank of India on 1.10.2014.

After controverting all other averments, opposite party No.2 prayed for dismissal of complaint.

9. Parties were afforded opportunities to produce evidence.

10. In support of his version, the complainant tendered into evidence documents Ex.C1 to Ex.C9 including his affidavit dated 11.8.2014, (Ex.C1); photocopy of summary of account, (Ex.C3); photocopy of order dated 7.5.2014, (Ex.C8) and also got produced documents Ex.C10 to Ex.C16 by summoning witness Sh.Anil Gupta, Manager of opposite party No.1 and closed his evidence after tendering his affidavit dated 14.7.2015, (Ex.C17).

11. Opposite party No.1 has tendered into evidence affidavit of Balbir Singh dated 24.8.2015, (Ex.OP1/1) and photocopy of legal notice, (Ex.OP1/2) and closed the evidence.

12. Opposite party No.2 has tendered into evidence affidavit of Balwinder Kaur dated 10.9.2015, (Ex.OP2/1) and closed the evidence.

13. We have heard learned counsel for parties and have gone through the file carefully.

14. Learned counsel for complainant has reiterated his version as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that Ex.C10 is loan application, it contains terms and conditions. As per this document, in case of non-allotment of plot, the refund order was to be passed in favour of bank. Therefore, bank was to receive principle amount directly from opposite party No.2. Since the complainant was only liable to pay interest, he has paid interest regularly, receipt, (Ex.C2) proves this fact. Statement of account, (Ex.C16) also proves that the complainant used to deposit the interest from time to time. Therefore, the complainant was not defaulter. The complainant has also placed on record copy of order dated 7.5.2014, (Ex.C8). This order was passed on the basis of complaint filed by opposite party No.1 U/s 138 of NI Act against the complainant. Therefore, opposite party No.1 has adopted unfair trade practice and deficiency in service by involving the complainant in unnecessary criminal proceedings. As such, the case of the complainant is fully proved. Opposite party No.1 has not rebutted the claim of the complainant. Opposite party No.1 has only produced affidavit of Balbir Singh dated 24.8.2015, (Ex.OP1/1) and photocopy of legal notice, (Ex.OP1/2). In the affidavit, (Ex.OP1/1) opposite party No.1 admitted that it has filed complaint U/s 138 of NI Act on account of loan in question. There is nothing to show that opposite party No.1 was having any ground to file the complaint. Moreover the cheque used in complaint was obtained from the complainant only for the purpose of security and opposite party No.1 has misused this cheque obtained on account of security.

15. On the other hand, learned counsel for opposite party No.1 has submitted that opposite party No.1 has initiated the proceedings U/s 138 of NI Act. The complainant was required to take all these points before trial court. Under the garb of this complaint, the complainant wants to question the proceedings U/s 138 of NI Act pending before the Court of CJM, Bathinda. Therefore in such circumstances, this complaint is not maintainable. No consumer dispute is involved in this case.

16. Learned counsel for opposite party No.2 has submitted that no relief is claimed against opposite party No.2 and it has been unnecessarily dragged into litigation. The complaint be dismissed with special cost qua opposite party No.2.

17. We have given careful consideration to these submissions.

18. In the light of arguments and pleadings of complainant, it emerges that the complainant has claimed compensation on account of proceedings initiated against him U/s 138 of NI Act. Therefore in such circumstances, it is to be seen whether any consumer dispute is involved or not. The complaint before this Forum is maintainable in case of any deficiency in service or unfair trade practice on the part of opposite parties. The complainant has not disclosed any service, which opposite parties are required to provide to him. The complainant has also failed to prove any deficiency in service on the part of opposite parties. Only ground of the complainant is that opposite party No.1 had filed complaint against him U/s 138 NI Act on the basis of cheque obtained for the purpose of security at the time of providing loan. The legality or illegality of proceedings pending against the complainant before the criminal court is to be decided by trial court and not by this Forum.

19. For the reasons recorded above, the complaint is hereby dismissed without any order as to cost.

20. This case could not be decided within the statutory period due to heavy pendency.

21. Copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

19-11-2015

(M.P Singh Pahwa)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member