Order-15.

Date-19/08/2015.

In this complaint Complainant Sri Tapan Kanti Sarkar by filing this complaint has submitted that complainant is working as an aged employee of B.S.N.L. at address mentioned in the complaint and on the last part of the year 2013 complainant intended to purchase a small car for his personal use and it has been discussed with op no.3 Sri Debasish Dalal (JTO Commercial) GMT, Kolkata – SSA/agent Mohan Motor Udyog Pvt. Ltd and for the said op no.3 introduced the complainant with the op no.2 i.e. Sales Executive of Mohan Motor Udyog Pvt. Ltd.Thereafter both of them advised to the complainant to pay the cheque in favour of op no.1 i.e. to the Director, Mohan Motor Udyog Pvt. Ltd. as advance and accordingly complainant issued a cheque bearing No. 249101, amounting to Rs. 55,680/- drawn in favour of Mohan Motor Udyog Pvt. Ltd. from his S/B A/c No. 2009234015-5 of Allahabad Bank, Red Cross Branch, for purchasing a car for the personal use of the complainant.

Thereafter complainant verbally demanded the quotation etc. for the car to the ops and the ops advised him to pay more money for the same and further demanded money when complainant suspected about the conduct of the ops and did not pay more and being afraid, complainant asked to refund the above advance money in question.But ultimately they failed to refund it.After so many demands, ops are not willing to refund the above advanced money with interest and compensation and also not willing to deliver the car in question.So, as a last chance complainant was bound to serve an Advocate’s letter dated 05.08.2014 to the ops.But in the legal notice wrongly SBI A/C No.324363417 is noted which should be Allahabad Bank A/c No. 2009234015 as corrected form.

Fact remains that op received the said Advocate’s letter on 07.08.2014, but no response is made by the ops and it is further heard from some reliable source that op no.3 Debasish Dalal has got the car in his name fraudulently and complainant does not know if it is correct or not and the complainant stated that since issuing the said cheque all the relevant documents containing terms and conditions, rate of interest and legal support of the other charges, agreements etc. for getting the said car is lying with the ops and same has not been supplied to complainant, for which the complainant is not in a position to make any further payments in respect of the car in question.

In fact for the above deceitful manner of act on the part of the ops and also for deceiving the complainant in such a manner, complainant has filed this complaint for refund of the said amount along with interest and compensation.

On the other hand op no.1 Mohan Motor Udyog Pvt. Ltd. by filing written version submitted that op was a dealer of cars manufactured by Maruti Suzuki at the relevant time and op no.3 visited the showroom of the answering op and booked a Wagon R VXI car in his name and there by subsequently the op no.3 purchased the said car by taking loan in his name from the answering op by completing all formalities and making full payment of the price of the same in exchange of their old Maruti Suzuki Zen Car and op no.3 is therefore a consumer of the goods sold and delivered or the services rendered by the answering op and the op no.3 has no grievance against the answering op and in this regard the answering op wants to produce the relevant documents in support of that.

However, complainant neither visited the showroom of the answering op till date nor has ever booked or purchased any car there from.Complainant has not received any sort of service from the answering op at any material time and as such the question of selling of any goods or rendering any services to the complainant at the behest of the answering op does not arise and there is no consumer-seller or service provider relationship by and between the answering op and the complainant and so there is no consumer disputebut denied all the allegations and prayed for dismissal of this case.But other ops have not turned up.

Decision with reasons

After careful study of the complaint and written version and also considering the argument as advanced by the Ld. Lawyers of both the partiers and further considering the argument as made by the ops’ Ld. Lawyer, it is found that it is undisputedfact that a cheque bearing No. 249101 amounting to Rs. 55,680/- was issued by the complainant in favour of Mohan Motor Udyog Pvt. Ltd. and that was encashed by the op Mohan Motor Udyog Pvt. Ltd. on 20.12.2013.But Ld. Lawyer of op submitted that the said cheque was deposited by op no.3 at the time of purchasing his car and truth is that op no.3 purchased one car from the Mohan Motor Udyog Pvt. Ltd. and in respect of that op no.3 submitted such document wherefrom it is found that Debasish Dalal purchased the said car and total value of the car was Rs. 4,50,658/- and financer paid Rs. 3,73,127/- for purchasing the car by op no.3 who is also employee of BSNL and Ld. Lawyer for the op submitted that there was no contract or/and no booking or commitment list was given by the op no.1 to the complainant.

Another factor is that the said disputed cheque amount no doubt was encashed by the op no.1.But it was submitted by the op no,3 at the time of purchasing the present car by op no.3.Further it was argued by the Ld. Lawyer of the op that the complainant issued the said cheque for said amount of Rs. 55,680/- in favour of the answering op.But that was deposited by op no.3 at the time of purchasing the car and that cheque was not deposited by the complainant, but that was deposited by op no.3 and at this stage op nos. 1 and 3 are doing this with the consent of op no.3 and trying to gain illegally something.Further complainant made submission in para-13 of the E-Chief that op no.3 has acted fraudulently and he has not filed any document but no doubt deposited the said cheque.So, complainant cannot claim as consumer under the op no.1, may be there is some feuds in between the op no.3 and complainant and only to get rid of this complaint is filed and for which this complaint should be dismissed.

On an in depth study of the written version and also overall evaluation of the argumentas advanced by the Ld. Lawyers of both the parties including the written version of the op, we are confirmed after critical appreciation of the entire materials and document, that undisputed fact is that complainant issued a cheqaue in favour of the op no.1 being cheque no. 249101 for a sum of Rs. 55,680/- and it is admitted position that this cheque was encashed by the op no.1 on 20.12.2013.But op no.1 has tried to convince that cheque was submitted by the op at the time of purchasing the car by op no.3.Then question how the said cheque issued by complainant in favour of the op no.1 even after encashment of the same by the op no.1 can claim to be deposited by the op no.3.

For the sake of the argument if it is accepted that the said cheque was deposited by the op no.3 to clear the outstanding dues for purchasing the car by op no.3, in that case it is mandatory provision of law to get such letter from the issuer of the cheque that he is tendering the cheque to clear up the dues of op no.3 but no such document is produced by the op no.1.So, under any circumstances even after encashment of the cheque by the op no.1 cannot deny that complainant had deposited the same.But the entire materials on record including the bank pass book and the admission of the op simply prove that complainant issued a cheque being No. 249101 amounting to Rs. 55,680/- in favour of Mohan Motor Udyog Pvt. Ltd. from SBI A/c No. 2009234015-5 by Allahabad Bank, Red Cross Branch of the complainant.

Then it is the liability of the op no.1 to prove that cheque was deposited by the complainant for clearing the balance amount for purchasing the car by op no.3.But no such document is produced by the op no.1 or by op no.3.

At the same time op no.3 who is made party in this case has also not challenged the complaint.But considering the materials on record, it is found that as BSNL employee op no.3 used to act as dalal (for selling car on behalf of op no.1).Truth is that complainant was anyway or otherwise allured by the op no.3 and went to the op no.1 showroom and after consultation he submitted the cheque for booking a car.But somehow or otherwise op no.1 managed to use that cheque with the help of op nos. 1 & 2 for encashing the same for clearance of balance dues in respect of the car which was purchased by the op no.3, but for that reason, complainant cannot be deceived by the ops.When it is admitted by the op nos. 1 & 2 that the cheque was issued in the name of op no.1 and by the complainant, but it was submitted by op no.3, but question of submitting of cheque for clearing the dues of op no.3 cannot be accepted when there was no consent letter or any authorization letter issued by the complainant to the op that he was depositing the cheque for clearing the dues or balance dues of the op no.3.

In view of the above fact and circumstances, we are convinced to hold that it is undisputed fact that complainant deposited the cheque and that amount has been encashed by the op no.1 and cheque was issued in the name of op no.1 and admittedly op no.1 has encahsed it which is evident from the bank documents and admission of the complaint and then op op no.1 shall have to prove whether against that cheque any booking was finally made or not.But in this regard there is no such explanation.

At the same time there is no such case of op no.1 that there was any business relation in between the op no.1 and complainant for which complainant deposited the cheque.But in the written version or at the time of argument op no.1’s Ld. Lawyer submitted that there was no transaction in between the complainant and op no.1 and then invariably the amount was paid as advance amount for booking a car when complainant is BSNL employee.Op no.3 is also BSNL employee.

So, it is clear that op no.3 by surname Dalal and by profession is also a dalal and as dalal of op no.1, op no.3 managed to allure the complainant to submit the cheque and op no.1 somehow or otherwise was obiliged by op no.3 and accepted the cheque as clearance of balance amount of op no.3 and it is no doubt unfair practice on the part of the op no.1.No doubt the said cheaue has been encahsed by the op no.1 for clearing the balance amount of op no.3 by practicing unfair trade practice.

But in the eye of law it is the duty on the part of the op no.1 to clear up that amount in favour of the complainant when op no.1 has failed to show that complainant was given any car when no booking slip was issued.Then for what purpose the cheque was deposited by the complainant that has not been explained but explained otherwise.

In the light of the above observation we are convinced to hold that complainant has no doubt able to prove the allegation against op nos. 1 & 3 beyond any manner of doubt and truth is that in respect of that payment no further transaction was made either by delivery of a car or for booking a car etc. Then op no.1 is liable to refund the entire amount with banking interest at the rate of 6 percent p.a. w.e.f. 20.12.2013 and till its full payment.

Moreover considering the loan account it is clear that Maruti Finance released Rs. 37,127/- in favour of op no.1 as financer against loan taken by op no.3 that is on 24.12.2013 and that amount was released in favour of the op no.1 for purchasing the car by Debasish Dalal op no.3 and this complainant’s cheque was encashed on 20.12.2012 and that amount was encashed for clearing the other dues that is incidental charges, registration cost and insurance policy of the car which was produced by the op total price is Rs. 4,50,658/- out of that financer paid Rs. 3,73,127/- and thereafter on calculation it is found that to get the car delivery from the op no.1 by op no.3 Op no.3 was required to pay of Rs. 77,531/- and when op no.3 found that it was not rightly available there somehow or otherwise op no.1 branch manager encashed the said cheque of the complainant for clearing the outstanding dues of op no.3 and delivered the car and it is admitted that cheque was encashed against car price of the car of op no.3.

Then it is proved that there was some internal business pact in between op nos. 1, 2 & 3 for which ops even after receipt of the said cheque of the complainant managed to convert it as payment by the op no.3 and thus op no.1 and deceived the complainant and no doubt such sort of act on the part of the ops is unfair trade practices.In this regard it is to be mentioned that Mohan Motor Udyog Pvt. Ltd. is a very well known Company for deceiving the customer in so many manner in the market and Mohan Motor Udyog Pvt. Ltd. in this particular case deceived the complainant in such a manner that such a business should be closed down by the order of the Forum at first bedcause deceitful manner of trade as maintained by the op no.1 has caused serious loss to many customers and in the present case it is found that they are deceiving persons at large.Intending purchasers of carsare being deceived by the ops with help of the Dalal op no.3.

In the result after relying upon the above findings and materials we are inclined to say that complainant did not get any car even after depositing of advanced amount of Rs. 55,680/- by a cheque being No. 249101 by the complainant to op no.1 and no doubt op no.1 is liable to pay the said amount to the complainant with simple banking interest at the rate of 6 percent p.a. w.e.f. 20.12.2013 and till its full payment.

For adopting unfair practice by the op no.1 and their dalal op no.3, complainant has been harassed and in fact op no.1 even after encashment of the said amount did not refund the same for which the complainant is also deceived and for which complainant is entitled to get compensation for his mental pain and sufferings and finally complainant failed to purchase the car.At the same time op no.3 as dalal of op no.1 shall have to pay penal damages of Rs. 15,000/- to the Forum and for adopting such deceitful manner of activities as dalal of op no.1.

In the result this complaint succeeds against op nos. 1 & 2 including op no.3 with cost.

Hence, it is

That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- each against op no.1 and same is allowed exparte against op nos. 2 & 3 with cost of Rs. 5,000/-.

Op no.1 is hereby directed to refund the entire amount by Rs. 55,680/- which has been encashed by op no.1 against cheque no. 249101 issued by the complainant and also to pay 6 percent interest p.a. over the said amount w.e.f 20.12.2013 and till its full payment to the complainant and invariably it must be paid within one month from the date of this order along with litigation cost.

Op no.3 is hereby directed to pay penal damages of Rs. 15,000/- for adopting such unfair trade practices and for harassing the complainant in such a manner and same shall be deposited to this Forum within one month from the date of this order along with cost as awarded.

Ops are directed to comply the order very strictly within one month from the date of this order failing which for non-compliance and disobeyance of Forum’s order, op nos. 1 & 3 shall be prosecuted u/s 25/27 of C.P. Act 1986 for which further penalty and fine shall be imposed upon them.