Per Justice Sham Sunder , President This appeal is directed against the order dated 16.06.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainants(now appellants). 2. The complainants took a loan of Rs.4,30,000/- from the OP(now respondent)against property and had issued 13 blank post dated cheques bearing Nos.311851 to 311863 drawn on Punjab and Sind Bank, Sector 34-A, Chandigarh. It was stated that the complainants paid substantial amount of loan and only Rs.1,65,878/- was due on 07.1.2009. It was further stated that the OP, without the consent of the complainants, and without their knowledge, filled up one cheque bearing No.311851 for Rs.4,30,000/- against the due amount of Rs.1,65,878/-. It was further stated that, on its presentation, the cheque was dishonoured on account of “funds insufficient”. Thereafter, a demand notice dated 14.02.09 annexure C-2A was received by the complainants wherein a demand of Rs.1,65,878/- was raised. It was further stated that on 15.07.2010, the complainants visited the OP and paid the entire loan amount of Rs.1,93,958/- outstanding against their loan account. It was further stated that to the utter shock of the complainants, they received summons from the Judicial Magistrate Ist Class, Chandigarh for 03.12.2010. It was further stated that after the receipt of the entire loan amount, the OP failed to withdraw the complaint, pending in the Court of the Judicial Magistrate Ist Class, Chandigarh, which amounted to deficiency, in service, on its part. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by them. 3. The OP, in its written statement, admitted that the complainants availed of a loan of Rs.4,30,000/- from it. It was, however, denied that 13 blank cheques drawn on Punjab & Sind Bank were given by the complainants, at the time of availment of loan. It was further stated that cheque No.311851 for Rs.4,30,000/-, given by the complainants, as security, was dishonoured on its presentation, on account of insufficient funds. It was further stated that on 15.07.2010, the complainants were liable to pay Rs.2,38,957/- and not Rs.1,93,958/-, but they (complainants) were given waiver of Rs.44,999.30 on 29.07.2010. It was admitted that the complainants paid Rs.1,93,958/- on 15.07.2010. It was further stated that as a goodwill gesture, the OP had withdrawn the said criminal case U/s 138 of the Negotiable Instruments Act, filed against the complainants to avoid litigation. It was denied that the OP was deficient, in rendering service, or indulged into unfair trade practice. The remaining allegations were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the District Forum, dismissed the complaint, as stated above. 6 Feeling aggrieved, the instant appeal was filed, by the appellants/complainants. 7. We have heard the Counsel for the appellants/complainants, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellants/complainants, submitted that, at the time of availing of housing loan of Rs.4,30,000/- , 13 blank cheques bearing No.311851 to 311863 drawn on Punjab & Sind Bank, Sector 34-A, Chandigarh, by way of security, were handed over to the OP. He further submitted that without the consent and knowledge of the complainants, the OP filled up one of those cheques, bearing No.311851 for a sum of Rs.1,65,878/-, which amount was outstanding against the loan account of the complainants and when the same was presented, it was dishonoured. He further submitted that even after payment of the outstanding amount of Rs.1,93,958/- the OP did not immediately withdraw the complaint U/s 138 of the Negotiable Instruments Act, having been filed by it, against the complainants, and pending in the Court of the Judicial Magistrate Ist Class, Chandigarh . He further submitted that the said complaint was withdrawn by the OP on 3.12.2010. He further submitted that the notice was received in the complaint aforesaid by the complainants and they had to engage a Counsel, as a result whereof, harassment was caused to them. It was further submitted that it was duty of the OP to withdraw the complaint U/S 138 of the Negotiable Instruments Act, already filed by it, against the complainants, immediately after the amount was paid. He further submitted that by not doing so, the OP was deficient, in rendering service, and also indulged into unfair trade practice. He further submitted that the District Forum did not take into consideration these aspects of the matter, as a result whereof, it fell into an error, in dismissing the complaint. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 10. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum, that the complainants availed of a housing loan in October,2002 in the sum of Rs.4,30,000/-, from the OP. No doubt, the complainants stated in the complaint that at that time 13 blank cheques were obtained by the OP, by way of security, from the complainants. However, this fact was denied by the OPs, in their written statement. Except the bald affidavit of Manmohan Singh, one of the complainants, that blank cheques, referred to above, were obtained by the OP, at the time of grant of loan, no other evidence was produced by the complainants. On the other hand, it was the specific case of the OP, that a cheque bearing No.311851 of Rs.4,30,000/-, was given by complainant NO.1, as a security of loan amount of Rs.4,30,000/-. Mere allegation, in the complaint, without substantiation through any reliable evidence that blank cheques were given by the complainant to the OP, at the time of grant of loan, does not establish the same. Even otherwise, according to Section 20 of the Negotiable Instruments Act,1881(amended upto date), when a blank cheque which is promissory note is given by the debtor to the creditor, after signing the same, it would mean that he had given prima facie authority to the holder thereof to fill up the same. In the first instance, as stated above, the complainants failed to prove that 13 blank cheques were given as security to the OP, at the time of availment of loan. Secondly, even if, a blank cheque was given, duly signed by the complainants, according to Section 20 of the Negotiable Instruments Act, creditor was duly authorized to fill up the same. When this cheque was presented, it was dishonoured as a result whereof, a complaint under Section 138 of the Negotiable Instruments Act,1881 was filed by the OP. No doubt, an amount of Rs.1,93,958/- due against the complainants, was paid by them, towards the clearance of loan on 15.7.2010. There is nothing, on record, that any agreement was executed, between the parties, at the time of clearance of the loan amount of Rs.1,93,958/- on 15.7.2010, that the complaint under Section 138 of the Negotiable Instruments Act, already filed by the OP, in respect of the offence, committed at the relevant time, by the complainants, was to be withdrawn. Complaint under Section 138 of the Negotiable Instruments Act related to the criminal offence, which was committed by the complainants, as on the date, when the cheque was dishonoured, for want of insufficient funds, in the account of the complainants. Even if, the entire loan amount had been cleared by the complainants, it was not at all obligatory, on the part of the OP, to withdraw the complaint, aforesaid. Subsequent payment of loan, did not absolve the complainants of their criminal liability, which they had already incurred, when the cheque, in question, issued by them stood dishonoured. However, in the instant case, as a goodwill gesture, with a view to ensure that better relations prevailed between the parties, and to avoid litigation, the complaint was, ultimately, withdrawn by the OP on 3.12.2010. There was, therefore, no deficiency, in service, on the part of the OP. The District Forum was also right, in holding so. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 12. The order rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. 14. Certified Copies of this order be sent to the parties, free of charge. 15. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
