Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986 for a direction to 1st Opposite party to close his S.B.Account and refund the balance amount and direction to 2nd & 3rd Opposite party to refund Rs.7,124/- with compensation and cost. 2. The facts of the complaint are that, the complainant purchased Bajaj Motor Cycle on 15.06.2006 by making down payment and for the remaining amount, the 2nd Opposite party advanced the loan and complainant had issued 20 advance cheques for Rs.1,737/- each to 2nd Opposite party. The 2nd Opposite party has realized 9 cheques and for the remaining 11 cheques, the complainant has made direct payment and the said 11 cheques are in the custody of 2nd Opposite party. The 2nd Opposite party has collected excess amount of Rs.7,124/- on the pretext that they are in respect of accessories. The complainant has closed his entire loan of 2nd Opposite party and 2nd Opposite party has issued the clearance certificate and assured that the 11 cheques issued by the complainant will not be presented. Therefore, 2nd & 3rd Opposite parties having committed deficiency in service in collecting excess amount of Rs.7,124/-. Further, the complainant intending to close the account gave application and to return the balance in his account. The 1st Opposite party insisted to return the remaining 11 cheques. Even though, the complainant apprised the 1st Opposite party that he has issued 11 cheques to 2nd Opposite party and he has closed the loan due and 2nd Opposite party has assured not to present the cheque to 1st Opposite party, the 1st Opposite party is not allowing the complainant to close the S.B.Account. Therefore, 1st Opposite party has committed deficiency in service. In spite of legal notice, they have not complied and hence the present complaint. 3. The 1st Opposite party filed version contending that the complaint is not maintainable, the complainant has opened a S.B. Account on 10.04.2006 for Rs.5,000/- and a cheque book with 20 cheque leaves was issued to the complainant, 9 cheques were honored and two cheques were dishonored and the account is having a balance of Rs.961/- as on date. If the complainant had returned the un-used 11 cheques, 1st Opposite party could close the S.B. account and pay the amount. Though the complainant attended the Head Post Office and submitted SB-7 for closure of SB Account, he was informed to submit a representation to that effect as per the provisions of para-25 of Rule 31(6) of appendix of Post Office Savings Bank Volume. Instead of submitting requisition, the complainant has approached this Honble Forum alleging false facts. There is no deficiency in service on the part of the 1st Opposite party. As per Section 14 of the Post Office Savings Banks Act no legal proceeding is not maintainable against the Officer of the Government. Therefore, the complaint is liable to be dismissed. 4. The 2nd Opposite party has filed version submitting that the complainant approached for financial assistance and after due formalities and executing necessary documents, the complainant has entered into loan agreement on 22.04.2006 and availed finance of Rs.36,000/- for purchase of Motor Cycle monthly installment is Rs.1,737/- for a period of 24 months and the rate of interest is 7.88% p.a. The realization of 9 cheques is admitted, the complainant has made direct payment for remaining 11 cheques, the closure of the entire loan amount and issuance of clearance certificate is admitted and the other allegations are denied, the complainant is not maintainable and liable to be dismissed with cost. 5. During trial, Complainant is examined as CW.1 and Ex.C.1 to C.9 are marked. The 1st & 2nd Opposite parties have filed affidavit evidence and documents. 6. We have heard both the sides. 7. Now the points that arise for our considerations are:- 1) Whether the 1st Opposite party has committed deficiency in service in not closing the S.B. Account? 2) Whether the 2nd Opposite party has committed deficiency in service by collecting excess amount of Rs.7,124/-? 3) What order? 8. Our findings and reasons are as here under:- 9. POINT No.1:- The undisputed facts are that, the complainant has opened S.B. Account with the 1st Opposite party from 10.04.2006 with cheque facility and cheque book with 20 cheques, leaves was issued to the complainant and 9 cheques were honored and two cheques were dishonored. 10. The allegation of the complainant is that the complainant requested the 1st Opposite party by giving application for closing the account and return the balance amount from his S.B. Account and 1st Opposite party has failed to do so inspite of informing of 1st Opposite party that the cheques were issued to 2nd Opposite party towards the loan and 2nd Opposite party has assured that he is not going to present the cheques. The complainant has produced S.B.Account pass book Ex.C.3 and legal notice Ex.C.4. 1st Opposite party witness has filed affidavit denying the allegations made by the complainant. According to the 1st Opposite party, the complainant did not give application as per rules and did not return the cheques unused and therefore the account could not be closed and even now it is ready to close the account and pay the available amount to the complainant, if the complainant files an application with unused cheques or that he is not going to present the cheques. But the complainant pleaded that he has filed an application for closure of the account, but it is not his evidence, he has not produced any endorsement for having filed an application along with the letter issued by 2nd Opposite party. The complainant has produced Ex.C.2 the letter of the 2nd Opposite party Bajaj Finance mentioning that the cheques are cancelled and not going to present cheques in future. But he has not submitted to this Ex.C.2 to the 1st Opposite party to close the account proving that the 11 cheques are with the 2nd Opposite party Finance Company. As per the Post Office Savings Bank Manual for the closure of the account with cheque facility, if the depositor has not used all the cheques contained in the cheque book in his possession, the post master should take over the cheque book containing the unused cheques and see that it contains requisition form intact and keep in his custody and post master shall make remark on the ledger. Further, as per Section 14 of the Government Savings Banks Act no legal proceedings shall lie against the officer of the Government in respect of anything which is in good faith done or intended to be done under this Act. It is the case of the 1st Opposite party that in writing the complainant has not informed that the remaining cheques would not be used or they are lost. If the complainant had furnished the letter given by the Finance Company, Ex.C.2 should have been with the 1st Opposite party and not with the complainant. It is the evidence of the 1st Opposite party that in spite of informing the complainant to give a representation to close the account and return the unused cheques, the complainant did not give any representation. Under these circumstances, in view of the rules of the post office, the 1st Opposite party is not in a position to close the account without observing the rules, therefore the complainant has failed to prove that 1st Opposite party has committed deficiency in service. 11. Point No.2:- It is undisputed fact that the complainant availed loan of Rs.36,000/- from 2nd Opposite party for the purchase of motor bike from 3rd Opposite party and executing a loan agreement produced by the Opposite party and complainant issued 20 cheques for Rs.1,737/- each to the 2nd Opposite party apart from advance 4 cheques for advance installments. It is an admitted fact that the 9 cheques were realized by the 2nd Opposite party and out of 11 cheques some cheques were bounced for insufficient funds and towards the installments of 11 cheques, the complainant made direct payment and according to the complainant at the time of direct payment, the 2nd Opposite party collected excess amount of Rs.7,124/- on the pretext of accessories charges, but 2nd Opposite party has denied the same. The complainant himself has produced the customers statement issued by 2nd Opposite party and is marked as Ex.C.1. According to this document the amount financed is Rs.36,000/- and financial charges is Rs.5,688/- and payable amount is Rs.41,688/- on monthly installments of Rs.1,737/-. The complainant has not stated what is the loan amount drawn and according to him he issued 20 cheques for Rs.1,737/- each which comes to totally Rs.34,740/- and then he has admitted that 9 cheques issued by him were realized by 2nd Opposite party and 11 cheques were not honored and he has made direct payment for those 11 cheques amount. What is the totally amount he has paid directly is not stated by him, but simply stated that 2nd Opposite party has collected excess amount of Rs.7,124/-, he has not filed any calculation sheet giving the details of payments made by him. Of course, he has produced Ex.C.5 to C.9, the 5 receipts issued by 2nd Opposite party towards the direct payment on different dates. These receipts revealed number of installments and the amount paid. In Ex.C.7 apart from the installment, Rs.3,650/- has been collected as penal charges on 18.12.2007 at the time of last payment. If we scrutinize the accounts in Ex.C.1 and the payments made under the Ex.C.5 to C.9, the complainant has not deposited the installments at the stipulated dates, but made delayed payments after 2, 3 months. Therefore, the opposite party has collected penal charges. As per Ex.C.1 statement, the penalty method is Rs.200/150 based on the amount and in the agreement as per clause 11, the company shall be entitled to recover a sum of Rs.350/- as delayed payment interest per default per month. So there is an agreement to pay Rs.350/- for delayed payment installment as interest per month. The Opposite party has charged Rs.650/-, Rs.800/-, Rs.650/-, Rs.950/-, Rs.800/- and Rs.800/- for 5 installments total coming to Rs.4,650/-, but it has collected only Rs.3,650/-. So, it cannot be said that the collection of penal interest for delayed payment of installments for 2, 3 months in respect of 6 installments is without any basis. On what basis the complainant has stated that the 2nd Opposite party has collected excess of Rs.7,124/- is not explained and proved by the complainant. Therefore, the complainant has failed to prove that the 2nd Opposite party has collected excess amount of Rs.7,124/- contrary to the agreement and therefore the complainant has failed to prove that 2nd Opposite party has committed deficiency in service. 12. In view of our finding points no.1 & 2 the complainant is not entitled to any relief and we proceed to pass the following order; ORDER The complaint is dismissed without any order to costs. However, it is open to the complainant to approach 1st Opposite party with a written requisition and letter of 2nd Opposite party about non-use of cheques for closing the account and in that event, 1st Opposite party shall close the account and refund the amount in his S.B. Account without any delay. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 30th day of June 2008). (PRESIDENT) (MEMBER) (MEMBER)
