This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Gora Chand Mondal.

The case of the complainant’s in short is that he availed of loan from the OP No.1 amounting to Rs.20,00,000/- and the said loan was disbursed on 10.03.2016. The complainant availed of such loan for purchasing excavator machine named as Hyundai R80-7 and the said machine was hypothecated by OP No.1.It was settled in between the parties that the tenure of the loan would be for 35 months, wherein each month carrying an EMI of Rs.64665/- payable on the 10^th day of each month of the English calendar with effect from 10.4.2016. as per agreement the loan will be repaid through ECS mode of payment as such the complainant instructed his banker to debit his account. Though there was sufficient balance in the account but the 2^nd EMI was not debited so the complainant on 30.06.2016 paid through NEFT. At the time of payment of 4^th installment it was debited on 19.07.2016 and on request of OP No.1 paid a sum of Rs.64670.75/- through ECS. Again on 19.7.2016 on the request of the O.P. No.1 the complainant made NEFT payment of Rs.64,670.75/- with additional charge as 4^th installment to the O.P. No.1. The complainant without knowing the fact of payment made through ECS to the O.P. No.1., the same being within the knowledge of O.P. No.1.

That the complainant was instructed by the O.P. No.1 to make a NEFT of Rs.64,670.75/- including additional charges as 9^th installment and as such the payment was made to the O.P. No.1 on 20.12.2016.  It is to be mentioned herein that even after the payment of 9^th installment by the complainant to the O.P. No.1 on 20.12.2016, again a monthly installment of Rs.64,665/- has been debited by the O.P. No.1 through ECS mode on 22.12.2016 against the 9^th installment.

It has been mutually settled between the parties that the monthly installment of the EMI will be paid through ECS mode of payment but the O.P. No.1 made several request to the complainant to issue post dated cheques as there has been some technical fault on the part of the O.P. No.1 and as such the complainant issued 9 post dated cheques vide cheque No.298338 to 298346 on 22.01.2017 in lieu of the O.P. No.1 for payment of due installments.

That O.P. No.1 made an assurance that the cheque will not be present for encashment with regard to the payment of the 12^th installments. On 10.3.2017 the complainant make payment of EMI of Rs.64,665/- to the O.P. No.1 via ECS mode.  On 13.3.2017 the O.P. No.1 again deliberately encashed one of the said post dated cheque being No.298338 given by the complainant on behalf of the O.P. No.1.  As such O.P. No.1 again made double payment to the O.P. No.1.  On 16.3.2017 the complainant made a written request to the O.P. No.2 for stop payment of cheque issued on behalf of the O.P. No.1 vide cheque No.298339 to 298346.

That O.P. No.1 even after receiving the monthly EMI through ECS has again deliberately deposited the post dated cheque to the O.P. No.2 for the same month for the encashment of cheque, as such complainant had to pay the monthly installment twice in a month, for which the complainant suffered a huge financial loss. The complainant several time informed the matter to the O.P. No.1 but they misbehaved with the complainant.

That complainant faced trouble from the O.P. No.1 & 2, so the complainant on 30.3.2017 sent a legal notice through his Ld. Advocate to the O.P. No.1 & 2 and demanded repayment of the amount which is lying with the O.P. No.1.  It would be mentioned here that complainant is a business man and this excavator machine is the only means of livelihood for the complainant and the only source of earning.  The complainant suffered mentally, physically and economically by the act of the O.Ps.  The O.Ps. have not provided proper service to the complainant. Finding no other alternative the complainant appeared before this Forum for relief.

The O.P. No.1 contest the case by filing written version denying inter-alia the entire material allegation as leveled against him.  This O.P. submits that on or about 1^st week of March, 2016 the complainant  for the expansion of his existing business along with his wife Jhumpa Mondal approached the O.P. No.1 for financial assistance to the tune of Rs.20,00,000/- for the purpose of purchasing a commercial equipment/motor vehicle under hypothecation.  After due deliberation and negotiation, the O.P. No.1 agreed to grant of loan of Rs.20,00,000/- to the complainant.  Accordingly a loan cum hypothecation agreement dated 10.3.2016 was entered by and between the parties.  Prior of execution the agreement, a draft copy of agreement was handed over to the complainant and all the terms and conditions of the agreement modalities of payment were explained to the complainant.

This O.P. further stated that upon entering into agreement, O.P. No.1 disbursed a sum of Rs.20,00,000/- by which a commercial equipment being Hyundai Hydraulic Excavator R80-7 having machine Sl. No.N101D01163 and engine Sl. No.4H22981620008 was purchased.  The said equipment is hypothecated in favour of the O.P. No.1 towards security of the loan amount.  The complainant was required to pay the loan amount along with interest in 35 monthly installment of Rs.64,665/- each commencing from 10.4.2016. 

That complainant repaid the loan through ECS payment of monthly installment of Rs.64,665/-for 35 months commencing from 10.5.2016 and ending on 10.2.2019.  The complainant started to default and committed breach of agreement from inception of the agreement.  ECS mandate given by complainant were not honored on presentation.  The complainant made payment beyond due date.  It is pertinent to mention here that several cheques and/or instruction for repayment of installments through ECS on due presentation for encashment were not honored and the payment of the said bounced cheque/instrument and/ or ECS were made by complainant through different mode and the payment of the outstanding installments were received beyond its due dates.

On 25^th June, 2016 the O.P. No.1 called upon the complainant for the payment of outstanding dues along with other charges amounting to Rs.67,535/- but the complainant did not pay entire sum demanded in the aforesaid letter. This O.P. also states that after filing of this complaint the complainant defaulted in the repayment of the monthly installments as per the schedule of aforesaid loan cum hypothecation agreement, the O.P. No.1 vide its letter dated 16^th October 2017 called upon the complainant for the payment of outstanding dues along with other charges amounting to Rs.1,41,468.99/- but the complainant did not pay entire sum demanded in the aforesaid letter.

The complainant being an existing customer is having a cordial relationship with official of the O.P. No.1 and on the discussion for resolving the constant dishonor of the instrument/ECS, complainant requested the O.P. No.1 for the presentation of the cheques and ECS for the repayment of the monthly installments.  The O.P. informed the complainant that in the event of happening of the instance if any, O.P. No.1 will refund the extra/additional monthly installment to the complainant. O.P. also states that from April, 2016 to December, 2016 two additional installments were received by O.P. No.1 in the month of July & December, 2016, which was subsequently refunded to the complainant without any deduction towards late payment.  Moreover, in the month of January, 2017 complainant again issued 9 post dated cheques being No.298338 to 298346 for the repayment of the monthly installment.

In the month of February, 2017 ECS get honoured and a cheque bearing No.298334 got dishonoured.  In the month of March, 2017 both ECS and cheque were presented for the repayment of the monthly installment and both of them were honoured.  This O.P. subsequently communicated to the complainant and told him to collect the refund amount and for that a demand draft of Rs.64,665/- being No.594054 dated 21^st March, 2017 was prepared.  But the complainant neither came to O.P. No.1 nor sent any representative for collecting the demand draft.  One representative of the O.P. No.1 visited the premises of the complainant with aforesaid demand draft but complainant refused to accept the demand draft without any reason. Hence, this O.P. prayed before this Forum to dismiss the complaint with cost.

OP No.2 despite receiving notice did not turn up so the proceeding runs ex-parte against them. Complainant filed evidence on affidavit which is nothing but replica of complaint petition. The opposite party No.1 failed to file evidence on affidavit. Both sides filed written notes of argument which are taken for consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Gora Chand Mondal is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

    In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Gora Chand Mondal is a ‘Consumer’ of the opposite party?

     From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP No.2 bank is maintaining a savings bank account before the OP-2 bank and  took loan from the OP No.1 and paying installments, so he is entitled to get service from the service provider i.e. OP bank & the finance Company.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

        Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The case of the complainant is that he availed of loan from the OP No.1 amounting to Rs.20,00,000/- and the said loan was disbursed on 10.03.2016. The complainant availed of such loan for purchasing excavator machine named as Hyundai R80-7 and the said machine was hypothecated by OP No.1. It was settled in between the parties that the tenure of the loan would be for 35 months, wherein each month carrying an EMI of Rs.64,665/- payable on the 10^th day of each month  with effect from 10.4.2016 as per agreement the loan will be repaid through ECS mode of payment as such the complainant instructed his banker to debit his account. Though there was sufficient balance in the account but the 2^nd EMI was not debited so the complainant on 30.06.2016 paid through NEFT. At the time of payment of 4^th installment it was debited on 19.07.2016 and on request of OP No.1 paid a sum of Rs.64670.75/- through ECS.

Again on 19.7.2016 on the request of the O.P. No.1 the complainant made NEFT payment of Rs.64,670.75/- with additional charge as 4^th installment to the O.P. No.1. The complainant without knowing the fact of payment made through ECS to the O.P. No.1., the same being within the knowledge of O.P. No.1. The complainant was instructed by the O.P. No.1 to make a NEFT of Rs.64,670.75/- including additional charges as 9^th installment and as such the payment was made to the O.P. No.1 on 20.12.2016.  It is to be mentioned herein that even after the payment of 9^th installment by the complainant to the O.P. No.1 on 20.12.2016, again a monthly installment of Rs.64,665/- has been debited by the O.P. No.1 through ECS mode on 22.12.2016 against the 9^th installment. It was mutually settled between the parties that the monthly installment of the EMI will be paid through ECS mode of payment but the O.P. No.1 made several request to the complainant to issue post dated cheques so the complainant issued 9 post dated cheques vide cheque No.298338 to 298346 on 22.01.2017 in lieu of the O.P. No.1 for payment of due installments.

 That on 10.3.2017 the complainant make payment of EMI of Rs.64,665/- to the O.P. No.1 via ECS mode.  On 13.3.2017 the O.P. No.1 again deliberately encashed one of the said postdated cheque being No.298338 given by the complainant on behalf of the O.P. No.1.  As such O.P. No.1 again made double payment to the O.P. No.1.  On 16.3.2017 the complainant made a written request to the O.P. No.2 for stop payment of cheque issued on behalf of the O.P. No.1 vide cheque No.298339 to 298346. The O.P. No.1 in his written version stated that on 1^st week of March, 2016 the complainant  approached before the O.P. No.1 for financial assistance to the tune of Rs.20,00,000/- for the purpose of purchasing a commercial equipment/motor vehicle under hypothecation, O.P. No.1 agreed to grant of loan of Rs.20,00,000/- to the complainant.  Accordingly a loan cum hypothecation agreement dated 10.3.2016 was  instituted by and between the parties and O.P. No.1 disbursed a sum of Rs.20,00,000/- by which a commercial equipment being Hyundai Hydraulic Excavator R80-7 having machine Sl.No.N101D01163 and engine Sl. No.4H22981620008 was purchased.  The complainant was required to pay the loan amount along with interest in 35 monthly installment of Rs.64,665/- each commencing from 10.4.2016  and ending on 10.2.2019.  The complainant started to default and committed breach of agreement from inception of the agreement. ECS mandate given by complainant were not honored on presentation.  The complainant made payment beyond due date and the payment of the outstanding installments were received beyond its due dates. The O.P. No.1 vide its letter dated 16^th October, 2017 called upon the complainant for the payment of outstanding dues along with other charges amounting to Rs.1,41,468.99/- but the complainant did not pay entire sum demanded in the aforesaid letter during the pendency of complaint petition.

The complainant being an existing customer is having a cordial relationship with official of the O.P. No.1 and on the discussion for resolving the constant dishonor of the instrument. Complainant requested the O.P. No.1 for the presentation of the cheques and ECS for the repayment of the monthly installments.  The opposite party No.1 informed the complainant that in the event of happening of the instance if any, OP No.1 will refund the extra/additional monthly installment to the complainant. Opposite Party No.1 also states that from April, 2016 to December, 2016 two additional installments were received by O.P. No.1 in the month of July & December, 2016, which was subsequently refunded to the complainant without any deduction towards late payment.  Moreover, in the month of January, 2017 complainant again issued 9 post dated cheques being No.298338 to 298346 for the repayment of the monthly installment.

In the month of February, 2017 ECS get honoured and a cheque bearing No.298334 got dishonoured.  In the month of March, 2017 both ECS and cheque were presented for the repayment of the monthly installment and both of them were honoured. This opposite party No.1 subsequently communicated to the complainant and told him to collect the refund amount and for that a demand draft of Rs.64,665/- being No.594054 dated 21^st March, 2017 was prepared.  But the complainant neither came to OP No.1 nor sent any representative for collecting the demand draft.  One representative of the OP No.1 visited the premises of the complainant with aforesaid demand draft but complainant refused to accept the demand draft without any reason. Hence, this opposite party no. 1 prayed before this Forum to dismiss the complaint with cost.

We have gone through the petition of complaint and correspondences between the complainant and opposite party apart from the written version filed by opposite party No.1, evidence of the complainant and the BNA filed by both parties. It is crystal clear that the opposite party No.1 used to receive the EMI through ECS from the opposite party No.2 bank and cheque issued by the complainant and NEFT in a few occasions. Even in two or three occasions the opposite party No.1 deducted EMI twice in a month and after detection they refunded twice the excess amount taken in a month. As there was cordial relation in between the complainant and the opposite party no.1 so they solved the dispute after discussion. But for the month of March, 2017 the opposite party no.1 inspite of taking twice the installment amount could not refund the excess amount even after getting legal notice in the month of March, 2017 but the said opposite party in his reply dated April, 2017 admitted that in the month of March, 2017 both ECS and cheque were presented for the repayment of the monthly installment and both of them were honoured. This opposite party No.1 subsequently communicated to the complainant and told him to collect the refund amount and for that a demand draft of Rs.64,665/- being No.594054 dated 21^st March, 2017 was prepared. But the complainant neither came to O.P. No.1 nor sent any representative for collecting the demand draft. One representative of the O.P. No.1 visited the premises of the complainant with aforesaid demand draft but complainant refused to accept the demand draft without any reason. He also filed the Xerox copy of impugned cheque in the case record. Getting no refund from the opposite party No.1 the complainant being aggrieved filed the instant case before this Forum for getting the excess amount alongwith interest, compensation and litigation cost. From the face of the case record it is clear that the complainant by producing document and adducing evidence on affidavit proved that the opposite party No.1 is deficient in providing service to this complainant for which he is entitled to get refund the excess amount of Rs.64,665/- alongwith interest @ 10% p.a. since the date of acceptance of money till its realization and litigation cost as this Forum deems fit and proper.  Thus the case succeeds on contest.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

 The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case, so the Opposite Party No.1 could not avoid his responsibility of paying the claim of the complainant including interest thereon as ascertained by this Forum.

ORDER

Hence it is ordered that the complaint case being No.160/2017 be and the same is allowed on contest against the Opposite Party No.1 with litigation cost of Rs.6000/-.

The Opposite Party No.1 is directed to pay a sum of Rs.64,665/- to this complainant including interest @10% since the date of acceptance till its realization within 45 days from the date passing this order.

The OP No.2 is exonerated from the liability.

No other reliefs are awarded to the complainant for harassment and mental agony.

At the event of failure to comply with the order the Opposite Party No.1 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.