Order dictated by:
Sh.S.S. Panesar, President.
1. Sh. Vinod Gupta has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that opposite party No.1 is a banker, who has taken over the finance company earlier known and working as Ashoka Leyland Finance company and opposite party No.2 is the agency of the said Ashoka Leyland Finance Company working for gain jointly. The complainant in order to purchase the truck of Ashoka Leyland for earning his livelihood by means of self employment and to get the finance facility from opposite party No.1 visited its office in the month of June 2012. Opposite party No.1 took the blank cheque drawn on Yes Bank, Amritsar bearing No. 192974 for Rs. 1,55,000/- without name as margin money in anticipation of sanction of loan and the cheque was to be presented after the sanction of loan. The complainant was shocked to know that the said cheque was got encashed by opposite party No.2 on 16.6.2012. The said cheque was never issued to opposite party No.2 and how the same was got encashed by opposite party No.2 as no loan was ever sanctioned and disbursed to him, the said queries were raised to opposite party No.1. But opposite party failed to give any satisfactory reply to the same. The opposite parties have failed to refund the said amount of Rs. 1,55,000/- to the complainant till the filing of the present complaint. Earlier the complainant has made the complaint before this Forum but the same has been withdrawn to file afresh on the same cause of action as the complainant left the technical point of mentioning about his status of self employment in the said complaint. The complainant has sought for following reliefs vide instant complaint:-
(a) Opposite parties be directed to refund Rs. 1,55,000/- alongwith interest @ 18% p.a. from the date of payment till realization ;
(b) Compensation to the tune of Rs. 50000/- may also be awarded to the complainant alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that the present complaint is not maintainable in the present Forum as the complainant is not the consumer as defined in the Consumer Protection Act ; that complainant never came to opposite party for getting any vehicle finance. Nor the opposite party No.2 is the agent of opposite party No.1 . The complainant is a stranger for opposite party No.1. The complainant never visited the bank of opposite party No.1 nor ever issued any cheque and as such no cause of action accrued to the complainant against opposite party No.1 ; that opposite party No.1 has nothing to do with this complaint as the same is neither the financer nor opposite party No.2 is agent of opposite party No.1 ; that complainant has not come to the Forum with clean hands and is guilty of suppressing the material facts from this Forum ; that complainant is estopped by his own act and conduct from filing the present complaint. Earlier also the complainant filed a complaint which was having titled as M/s. VIP Fillers Versus M/s. Ashoka Leyland Finance C o. and Others and when opposite party No.1 submitted written version, the complainant withdrew the said complaint ; that the present complaint is without any cause of action. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
3. Opposite party No.2 did not opt to put in appearance despite service of notice, as such opposite party No.2 was ordered to be proceeded against ex-parte.
4. In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of bank statement Ex.C-2 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Sh.Aman Prasher,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Raghu Raja Sharma, authorized signatory and G.P. Holder Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
7. From the appraisal of the evidence on record, it becomes evident that opposite party No.2 has voluntarily suffered ex-parte after due service. The evidence adduced by the complainant against opposite party No.2 has gone unrebutted on record. It is the case of the complainant that opposite party No.1 took blank cheque drawn on Yes Bank, Amritsar bearing No. 192974 for an amount of Rs. 1,55,000/- without name as margin money in anticipation of sanction of loan. Loan was ultimately not sanctioned . The complainant was shocked to know that the cheque in dispute was got encashed by opposite party No. 2 on 16.6.2012 as the said cheque was never issued in favour of opposite party No.2 by the complainant . Copy of statement of account Ex.C-2 bears witness to the fact. How opposite party got its hand on cheque in dispute or the fact that cheque in dispute was handed over by the complainant to opposite party No.1 is not proved on record. It is the case of the complainant that he did not owe any sum to opposite party No.2, as such opposite party No.2 cannot retain the amount of Rs. 1,55,000/- belonging to the complainant. As such the complainant is entitled to get the amount of Rs. 1,55,000/- from opposite party No.2. Opposite party No.2 did not opt to appear and contest the claim and thereby impliedly admitted the claim of the complainant. Consequently opposite party No.2 is directed to repay the amount of Rs. 1,55,000/- alongwith interest @ 6% p.a from the date of filing of the complaint until full and final recovery. Cost of litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of the order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. However, no case is made out against opposite party No.1. As such complaint against opposite party No.1 fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 16.9.2016
/R/
