BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.501 of 2016

Date of Instt. 27.12.2016

Date of Decision: 07.02.2018

Sat Pal Age 52 S/o Late Hazara Ram, Vill. Sura Colony, PO Sura Nussi, Jalandhar (Mobile No.80541-25770)

..........Complainant

Versus

1. Diamond World Electronic, Janta Colony, PO Sura Nussi, Jalandhar Through its Prop./Partner/Authorized Representative.

2. Home Credit India Finance Pvt. Ltd., Third Floor, Tower C, DLF Infinity Tower, DLF Cyber City Phase-II, Gurgaon-122002 (Haryana) Through its Director/Authorized Representative.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Complainant in person.

Sh. HS Chahal, Adv Counsel for the OP No.1.

Sh. AK Thind, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. This complaint filed by the complainant, wherein alleged that he purchased a Laptop from OP No.1, vide bill dated 11.11.2015 for an amount of Rs.29,000/-. The complainant paid an amount of Rs.20,922/- in advance to OP No.2 through OP No.1 and the balance amount Rs.9000/- of the Laptop was desired to pay in 12 monthly installments to the OP No.2. The OP No.1 told the complainant that he would help the complainant to get financed the balance amount of Rs.9000/- from OP No.2. Instead of finance loan amount of Rs.9000/-, the OP No.2 financed loan amount Rs.50,000/- for above said Laptop in association with OP No.1 and made the installment Rs.2002/- per month. The OP No.2 withdrawn monthly installment @ Rs.2002/- per month from complainant's Account No.3370100000218 Bank of Baroda, Maqsudan, Jalandhar for the period from 11.01.2016 to 11.12.2016. The complainant was to refund Rs.9000/- as principal amount + Rs.564/- interest @ 11.36% for 12 months i.e. total amount was to refund Rs.9564/- and the monthly installment should had been made for Rs.797/-.

2. That the OP No.2 recovered from complainant Rs.24,024/- for 12 months @ Rs.2002/- per month, whereas over loan amount Rs.9000/-, Rs.9565/- should had been taken. Besides above the OP No.2 also charged excess amount Rs.1500/- as processing fee. As such, the OP No.2 charged excess Rs.15,959/- i.e. (Rs.14,459/- + Rs.1500/-) from the complainant against the finance of Rs.9000/-, which was the balance amount of Laptop at the time of purchase.

3. The above facts came into the notice of the complainant, when he received a sanctioned letter from OP No.2 in the month of September-October 2016, that a loan of Rs.50,000/- was sanctioned to the complainant @ 11.36%. On receipt of the above information from the OP No.2, the complainant approached the OP No.1 and asked him how the loan of Rs.50,000/- was sanctioned whereas the loan should had been sanctioned Rs.9000/-. On hearing this, the OP No.1 told the complainant that the total cost of the Laptop sold by him was Rs.29,000/-, out of which the sum of Rs.20,922/- was paid in advance including processing fee and the balance Rs.9000/- should had been financed to be paid in 12 installments, but OP No.1 did not know how the sum of Rs.50,000/- was sanctioned to the complainant and further told the complainant that he is helpless to tell anything more in this regard and directed the complainant to enquiry from OP No.2.

4. That the complainant requested OP No.2 many times to make correction in their record and loan sanctioned letter for loan amount from Rs.50,000/- to Rs.9000/-, but the OP No.2 was adamant to recover loan amount of Rs.50,000/- instead of Rs.9000/-. The complainant neither applied nor availed Rs.50,000/- from the OP No.2 nor requested the OP No.1 to get sanctioned this amount of loan from OP No.2. When the Laptop was purchased for Rs.29,000/- from the OP No.1, the OP No.1 himself advised to get financed Rs.9000/- to be paid in 12 monthly installments from OP No.2. But being illiterate the complainant was unaware to understand the malafide intention of the OPs. The complainant requested the OP No.2 many times to refund the excess charged amount and close the loan case, but the OP No.2 refused to do so rather they threatened the complainant if the said amount of Rs.50,000/- is not paid upto 11.11.2017 they would send a notice through their legal services for the recovery of said amount of loan alongwith interest upto date and accordingly, the complainant suffered a mental tension, harassment and financial loss and as such, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OP No.2 be directed to refund the excess taken amount Rs.15,959/- and to cancel the loan sanctioned letter of Rs.50,000/- and to make amendment of loan to Rs.9000/- and to charge the processing fee over the loan amount of Rs.9000/- instead of Rs.50,000/- and further be directed to pay a cost of litigation of Rs.3300/- and be also directed to pay compensation of Rs.70,000/- for mental tension and harassment.

5. Notice of the complaint was given to the OPs and accordingly, OP No.1 filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is bad for misjoinder of parties, the OP No.1 is not the necessary party. There is no allegations qua the deficiency in service, delicacy and manufacturing defect in the Laptop sold by the OP No.1 to the complainant and further averred that the complainant has no cause of action to file the present complaint against the OP No.1. As per the complaint, there is a dispute regarding the financial loan advanced by the OP No.2 to the complainant and regarding arrears of loan etc by the complainant. The OP No.1 has no concern with the loan transaction and further averred that the complaint itself is false and has been filed with wrong facts. The complainant did not pay a single penny to the OP No.1 for purchase of the Laptop. Rather it is the OP No.2, who paid a sum of Rs.27,578/- to the OP No.1 being sale price of the Laptop sold by the OP No.1 and the said payment was duly received by the OP No.1 on 18.11.2015 as reflected in the statement of account against Account No.33570200000157 with Bank of Baroda, Maqsudan, Jalandhar. On merits, it is admitted that the complainant purchased a Laptop on 11.11.2015, but the remaining allegations as made in the complaint are categorically denied and further admitted that a Laptop was purchased for a sum of Rs.29,000/-, but the OP No.2 only transferred a sum of Rs.27,578/- on account of loan facility availed by the complainant and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

6. The OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and liable to be dismissed being false, frivolous and vexatious. There is no deficiency in services on the part of the answering OP and further alleged that the complaint under reply is also liable to be dismissed on the ground that the complainant has approached this Forum with unclean hands and have not disclosed true facts and documents, which have a material bearing on the case and further submitted that the real and true facts are that the complainant approached the representative of the OP on 11.11.2015 and applied for the loan of Rs.50,000/- for the purchase of Laptop Dell I5 by submitting the Application Form with the answering OPs. The Application Form submitted by the complainant contains all the details of the loan like product, financed, loan amount, processing fee, rate of interest, EMI etc and then complainant willing to pay in advance, mode of payment and monthly customer care fee were clearly printed alongwith the personal details of the complainant, which the complainant had signed after carefully reading and understanding the same. It is pertinent to submit that the signature of the complainant on the Application Form evident that the complainant out of his own free will applied for the loan of Rs.50,000/- for the purchase of Laptop. The complainant alongwith the application form also submitted her PAN Card and Aadhar Card towards identification proof and address proof. The copies of the Application Form dated 11.11.2015 and PAN Card and Aadhar Card submitted by the complainant are attached with the reply and further submitted that the complainant alongwith Application Form also submitted the consent form and declaration. On the basis of Application Form and other documents submitted by the complainant, the answering OP sanctioned the loan of the complainant and issued a sanctioned letter with contract number 3511202332 to the complainant alongwith general terms and conditions. The complainant after reading and understanding the terms and conditions of the loan provided, his consent and signed and accepted the Sanctioned Letter and acknowledged the receipt of the same alongwith GTC. That subsequent to the acceptance of the Sanctioned Letter by the complainant, answering OP issued a Delivery Advice to the OP No.1 i.e. Diamond World Electronics. In the said Delivery Advice, the answering OPs apart from giving the details of the product, financed and the cost of the product, requested the dealer to collect the advance payment, which consists of Processing Fee and Advance EMI and deliver the commodity to the complainant. The dealer was further requested to provide the copy of original invoice with the signature of the complainant as a proof of delivery in order to complete the disbursal process of loan amount. Upon receipt of the delivery advice by the OP No.1 submitted the copy of original invoice no.92 dated 11.11.2015, wherein the amount of the Laptop was written as Rs.50,000/-. It is stated that the said invoice was duly signed by the complainant, which evidence the fact that the complainant took the delivery of the Laptop for Rs.50,000/-. It is stated that the said invoice duly signed, which evident the fact that the complainant took the laon from answering OP only for the purchase of Laptop of Rs.50,000/-. The complainant at the time of accepting the loan sanctioned on 11.11.2015 also directed his bank to make payment to the answering OP through ECS (Debit Clearing)/Direct Debit having MICR No.144012008 from his bank account No.33570100000218 for an amount of Rs.2002/-, which evidences the fact that the complainant agree to the amount of loan sanctioned and to repay the Monthly Payment of Rs.2002/- through Direct Debit. So, it is clearly established from the above documents that the complainant had purchased a Laptop amounting to Rs.50,000/- and also applied for the loan of the same account with the answering OP in order to purchase the same. The present complaint is filed by the complainant just to avoid the payment of monthly payment due towards the loan advanced and further alleged that the present complaint has been filed with malafide intention and ulterior motive to cause harassment to the answering OP and the same is merely an abuse of process of law. On merits, the averments made in the complaint are categorically contradicted by the answering OP and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

7. In order to prove the case of the complainant, complainant himself tendered into evidence his affidavit Ex.CA and supplementary affidavit Ex.CB alongwith documents Mark C-1 Bill/Cash Memo, Mark C-2 Sanction Letter, Mark C-3 Statement of Bank, Marck C-4 Collection Receipt, Mark C-5 to Mark C-7 Bank Statement, Mark C-8 Photocopy of Bank Passbook, Mark C-9 Invoice and then complainant closed the evidence.

8. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith documents Ex.OP/1 Copy of Statement of bank Account and Ex.OP1/2 Original Bill dated 11.11.2015 and closed the evidence on behalf of the OP No.1.

9. The Counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith some documents Ex.OP2/1 Application Form, Mark 'A' Copy of PAN Card, Mark 'B' Copy of Aadhar Card, Mark 'C' Copy of Delivery Advise, Ex.OP2/2 Consent Form and Declaration, Ex.OP2/3 Sanctioned Letter, Ex.OP2/4 General Terms and Conditions, Ex.OP2/5 Invoice No.92, Ex.OP2/6 Contract Statement and then closed the evidence on behalf of the OP No.2.

10. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

11. After hearing the argument and from the scrutiny of the case file, it reveals that it is not a simple case for deficiency of service rather the case of the complainant is totally itself shows that the entire episode in regard to taking a loan for purchase of Laptop is based on fabricated and manipulated story and documents, the complainant alleged that he purchased a Laptop for Rs.29,000/- on 11.11.2015 and out of that amount, he paid an advance Rs.20,922/- to the OP No.2 through OP No.1 and took a loan regarding balance amount of Rs.9000/-, which is to be paid by way of 12 monthly installments to OP No.1, but the complainant came to know in the month of September-October 2016, when he received a sanctioned letter from OP No.2, that a loan of Rs.50,000/- was sanctioned to the complainant for purchase of the said Laptop, which required correction and excess amount recovered from the complainant by OP No.2 is liable to be returned alongwith interest.

12. Admittedly, the OP No.1, from whom the complainant has purchased the Laptop also appeared and filed a written reply, wherein admitted in Para No.12 of the reply that the complainant purchased a Laptop for Rs.29,000/-, out of which he received a sum of Rs.27,578/- from OP No.2, who provided loan facility to the complainant and in support of its version the OP bring on the file statement of account of Bank of Baroda of the OP No.1, wherein an amount of Rs.27,578/- has been credited in the account of the OP No.1 and further OP No.1 brought on the file copy of invoice No. 89 i.e. Ex.OP1/2.

13. The OP No.2 took a plea that the complainant himself approached to the representative of the OP No.2 on 11.11.2015 for providing a loan facility of Rs.50,000/- for purchase of Laptop Dell I5 and loan application Ex.OP2/1 submitted by the complainant himself, alongwith that application, he also submitted his ID Mark A and Mark B and then delivery advice Mark C was issued and where upon complainant deposited the advance amount with the OP No.1 and then delivery of Laptop was given to the complainant and the complainant submitted a bill duly signed by him as well as the other document and now just to avoid to pay the remaining installment, the instant complaint has been filed.

14. We find that the invoice/bill of a Laptop produced by the complainant is Mark C-9 and wherein the invoice number is 89 dated 11.11.2015 and Laptop model is Dell Laptop I3. Similarly, the invoice/bill produced by the OP No.1/Dealer is having the same description, the said bill is Ex.OP1/2, but the bill submitted to the OP No.2 for financing a loan is different one, the same is Invoice No.92 dated 11.11.2015, having a Laptop Model I5, whereas the complainant purchased the Laptop Dell I3, if so then, the bill/Invoice No.92 Laptop Model I5 produced on the file by OP No.2 for a price of Rs.50,000/-, has been issued by the OP No.1 or not, regarding that the OP No.1 is silent. He did not disclose in the written statement or in its affidavit, so it is the question, which cannot be decided in a summary way rather it required full fledged trial i.e. lengthy examination as well as cross-examination.

15. Further, the OP No.2 itself alleged in the written statement that a sum of Rs.22,422/- was requested to OP No.1 to collect from complainant as advance EMI and then delivered the Laptop, vide delivery advice Mark C, which is signed by the OP No.2, vide referring to the OP No.1 and then after delivery of the Laptop Model I5 to the complainant, the OP No.1 also put his signature and in this delivery advice the total advance payment collected from the customer is shown as Rs.22,422/- and total community price has been shown as Rs.50,000/-, so it means there is hanky-panky committed by the OP No.1 with the connivance of the OP No.2 and it is matter of evidence that whether signature on the delivery advice has been put by the OP No.1 or not and this fact can only be inquired and tried by only Civil Court. So, with these observations, we are of the considered opinion that the matter involved in this case cannot be adjudicated by way of summary procedure rather the document in question required examination-in-chief of the party as well as their lengthy cross-examination to reach a right conclusion whether the documents have been fraudulently prepared just to commit a fraud with the complainant. So, accordingly, this complaint is disposed of with the liberty to the complainant to file a case before the Civil Court, if so desired and the period, so consumed by the complainant in this Forum, from the date of filing complaint till disposal is to be taken into account as per limitation law, while filing a case before the Civil Court. The complaint could not be decided within stipulated time frame due to rush of work.

16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

07.02.2018 Member President