DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 125 of 2014
Date of filing: 08.7.2014 Date of disposal: 26.5.2015
Complainant: Rajib Mukherjee, S/o. Sri Souren Mukherjee, resident of Purbachal, Bamunara, PO: Bamunara, PS: Kanksa, District: Burdwan.
-V E R S U S-
Opposite Party: 1. Authorised Representative, Indusind Bank Ltd., 41, Shakespeare Sarani, Kolkata – 700 017.
2. The Branch Manager, Indusind Bank Ltd., Layek’s Building, 1st Floor, beside Peerless Inn, City Centre, Durgapur- 16, District: Burdwan.
3. United Bank of India, Head Office, 11, Hemanta Basu Sarani, Kolkata – 700 001.
4. Branch Manager, United Bank of India, Bidhannagar Branch, S.S.B. Sarani, Durgapur – 713 212, PO: Bidhannagar, District: Burdwan.
Present: Hon’ble President: Sri Asoke Kumar Mandal
Hon’ble Member: Smt. Silpi Majumder
Appeared for the Complainant: Ld. Advocate, Samarendra Sinha.
Appeared for the Opposite Party: Ld. Advocate, Uttam Dutta Choudhury.
Appeared for the Opposite Party: Autho. Representative, Mrinmoy Chakraborty, Manager.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service against the Ops as the Op-1 has claimed an amount towards outstanding dues arbitrarily and the OP-3 has bounced the post-dated cheque illegally.
The brief fact of the case of the complainant is that he purchased one Honda motorcycle taking loan from the OP-1&2 to the tune of Rs. 40,000=00 and entered into a loan agreement to repay the same by 24 installments along with 12.5% interest per annum and each installment was scheduled for Rs. 2,174=00. The OP-1&2 have obtained 23 numbers signed post-dated cheques amounting to Rs. 2,174=00 each of the United Bank of India, Bidhannagar Branch, Durpgapur-12. Those cheques were issued
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by the father of the complainant and the cheques were local of Durgapur, which the OP-1&2 accepted on 07.7.2011. At the time of delivery of the motorcycle the OP-2 kept one duplicate key of the vehicle stating that the same will be retuned at the end of final payment of EMI along with NOC. So the complainant can utilize the vehicle freely according to his wish i.e. to sell or otherwise dispose of the vehicle in case of urgent financial stringency. The Op-1&2 deposited the last cheque at UBI, Bidhannagar Branch on 07.6.2013. As the same was encashed the OP-1&2 were supposed to issue the NOC and returned the duplicate of key of the vehicle to the complainant immediately. But surprisingly the OP-1&2 issued letter dated 28.7.2013 signed by the OP-1 claiming 1,286=40 from the complainant. Upon receipt of such letter the complainant made enquiries and came to know that two cheques bearing no. 715584 dated 07.01.2011 & 715585 dated 07.12.2011 for Rs. 2,174=00 each were not deposited by the OP-1&2 at Bidhannagar Branch of UBI, but instead submitting the same at the said branch, the two cheques were deposited at Bowbazar Branch, U.N. Brahmachari Street, Kolkata. For this reason the said cheques were not honoured by the Bowbazar Branch because the said cheques were local cheques of Durgapur. In this connection several discussions were held by and between the complainant and the responsible officers of the Ops dealt with this transaction over telephone. The officer of the OP-1&2 have admitted their mistake that it was their fault to deposit the said two cheques at Bowbazar branch, Kolkata since the cheques were of local cheques of Durgapur. In this context it is pertinent to mention that one officer of OP-1&2 Mr. Sumanta Ghatak charged the complainant that since there was insufficient fund in the Bank account of the father of the complainant those two cheques were dishonoured. But when the complainant placed the pass book of his father before the OP-1&2 they have admitted their fault and thereafter the complainant was advised to deposit the principal amount of the said two cheques and get the transaction complete. Accordingly, the complainant deposited Rs. 4,384=00 on 03.01.2012 by cash and the OP-1&2 did not charge any amount towards bouncing of two cheques/over-due charges/other charges and the complainant demanded the two dishonoured cheques from the OP-1&2 and he was told that the same will be returned after completion of all entries in the books of accounts and the same will handed over at the time of issuance of NOC. Being satisfied with the assurance of the officer of OP-1&2 to the extent that he will issue NOC, duplicate key etc. within a very short span, but the Ops no. 1&2 issued a letter dated
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28.7.2013 to the complainant. According to the complainant it has deliberately deposited those two cheques at Bowbazar branch, Kolkata and the same were accordingly dishonoured as per banking law and thereafter tried to repossess the vehicle forcibly on the ground that the complainant had failed to make payment of due EMI. The OP-1&2 also tried to sell out the vehicle in default to charge extra amount from the complainant. The OP-1&2 have repeatedly threatened him stating that if the overdue charges are not paid immediately they will repossess the vehicle and put the complainant in jail custody. The complainant has further stated that due to such threat made by the OP-1&2 his studies were badly affected as he is a student of law. His results have been diminished to a great extent. Though his aim was to compete the WBJSE for becoming a Judge of repute but due to bad result in the examination after the threats given by the OP-1&2 his dream became damaged. As there was deficiency in service, as well as, unfair trade practice on behalf of the Ops according to the complainant he is very much entitled to get compensation from the Ops. Being mentally perplexed with such action and behaviour of OP-1&2 and finding no other alternative this case has been filed by the complainant praying for direction upon the Ops for making payment of Rs. 5,00,000=00 towards compensation, to return the two dishonoured cheques, to return the duplicate key and issue NOC.
This complaint have been contested by the OP-1&2 by filing conjoint written version wherein it is stated that complainant cannot be a consumer in view of the definition of ‘Consumer’ as contained in the Section 2(1)(d) of C. P. Act, 1986 because the complainant being a debtor of the Ops cannot claim to be a consumer under the C.P. Act. It is further stated by the said Ops that in any event the essential ingredient of a consumer - service provider relationship wherein service rendered or agreed to be rendered by the service provider. The Ops have not ever agreed to render or rendered any service to the complainant. Thus the complainant is not a consumer and accordingly prayer has been made by these Ops to dismiss the complaint in limini with cost. The Ops have mentioned that it is pertinent to refer the decision of Hon’ble NC in Ram Deshlahara Vs. Magma Leasing Ltd. reported in Vol III (2006) CPJ 247 (NC) wherein it is observed that under a hire purchase transaction, the financier does not render any service within the meaning of Consumer Protection Act. The relation between the finance company and the complainant is being a debtor and creditor as well as bailor
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and bailee. Thus the ld. Forum has no jurisdiction to entertain present complaint. The Ops have contended that the complainant at the time of obtaining loan and hypothecating the vehicle with the Ops had entered into a loan-cum- hypothecation agreement which contains an arbitration clause whereby parties to the agreement mutually agreed to settle all their disputes by referring the same to the Arbitrator. Now the complainant cannot be allowed to discard the terms of the agreement entered by and between him and the Ops. The agreement also contains the jurisdiction clause, whereby the Courts of Chennai alone have jurisdiction over any matter arising out the said agreement. The Ops have further mentioned that the complainant purchased a Hero Honda motorcycle worth of Rs. 61,267=00, out of which Rs. 40,000=00 was financed from the OP-2, by entering into loan-cum-hypothecation agreement dt. 07.7.2011 which was repayable along with interest
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amount of Rs. 1,286=00 in respect of cheque bounce charge and overdue charges. On 28.7.2013 the Ops have issued one notice to the complainant for making payment of the same for issuance of NOC as the said claim of the Ops is legitimate by virtue by loan-cum-hypothecation agreement wherein it is clearly mentioned that in case of cheque bounce and/or delay payment the complainant have to pay penalty and overdue charges. Now the complainant is under obligation for making payment of claimed amount to the tune of Rs. 1,286=00 to these Ops. It is further stated by these Ops that they are ready to issue NOC, as well as, to return the duplicate key to the complainant if the complainant pays the dues. According to these Ops as this complaint is frivolous and vexatious the same is liable to be dismissed with exemplary cost.
The POC have been contested by the OP-3&4 by filing written version wherein it is contented that they have been made parties in this complaint unnecessarily as no specific allegation has been made out against these Ops by the complainant in the complaint. It is further stated that these Ops admit that at the relevant point of time cheques of 13 digit account number were in existence. But the cheques which were issued to the father of the complainant there was no mentioning of 13 digit account number, instead the old 5 digit cheque number was mentioned. These Ops are responsible to that extent only. The clearing branches outside Durgapur locality were required to clarify the fact with these Ops before dishonouring the cheques mentioning ‘no such account’ and/or ‘insufficient fund’. It is mentioned that at the relevant time and still today the said account is in operation with sufficient fund in the account. Therefore it was a great mistake to dishonor those cheques for which the complainant had to suffer. The OP-3&4 have submitted that after dishonour of the two cheques no notice of dishonour was sent to the complainant by the OP-1&2. After dishonour payment was made in cash by the complainant but no penal charge/bounce charge/collection charge or any other amount was charged by the OP-1&2, rather they have returned Rs. 152=00 to the complainant which is evident from the cash receipt. According to these Ops non-writing of 13 digit account number o the face of the cheques of the Op-3&4 was a very negligible mistake, for this reason they are not under any obligation for making payment of any amount to the complainant as prayed for. According to the OP-3&4 the complaint is liable to be dismissed.
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It is pertinent to mentioned during hearing of this complaint none was present on behalf of OP-1&2 but the OP-1&2 have filed their written version. We took up thehearing from the complainant, as well as, the OP-3&4 and perused carefully the written version filed by the OP-1&2. It is seen by us that the OP-1&2 have taken a plea that the complainant is not a consumer of the OP-1&2. Therefore the said legal question should be disposed of at the very outset. From the POC, as well as, the written version filed by eh Op-1&2 it is clear, with a view to purchase the motorcycle the complainant obtained financial loan to the tune of Rs. 40,000=00 from the OP-1&2 and for that purpose both parties entered into a loan-cum-hypo agreement. As per the agreement it was scheduled that the entire loan amount along with interest @12.5% per annum will be paid by 23 installments i.e. Rs. 2,174=00 each. Accordingly the complainant had to submit 23 post-dated cheques before taking the loan amount from the OP-1&2. Therefore in this respect it can safely be said that the complainant had availed of service from the OP-1&2 subject to payment of consideration because the complainant paid the processing fee, as well as, till completion of repayment the vehicle was hypothecated with the OP-1&2. Therefore, the complainant can be termed as a consumer of OP-1&2. So we cannot entertain the plea as taken by the OP-1&2 in the written version.
Secondly, the Op-1&2 have taken another plea on the point of arbitration clause.
In this respect we are to mention to the judgment of Kishore Lal vs. Chairman, Employees’ State Insurance Corporation (2007) 4 SCC 579, where the Hon’ble Supreme Court has held that-
‘The trend of the decisions of this court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different for a have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.’
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In the case of Fair Air Engineers (P) Ltd vs. N.K. Modi (1996) 6 SCC 385 The Hon’ble Supreme court after taking into consideration the provisions of the Consumer Protection Act, 1986, the Arbitration Act of 1996 and the Arbitration Act, 1940 held as under:
“The provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, section 34 of the act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and national commission are judicial authorities,
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for the purpose of section 34 of the arbitration act, in view of the object of the Act and by operation of section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”
In Skypak Couriers Limited vs. Tata Chemicals limited (2000) 5 SCC 294) the Hon’ble Supreme Court has again in the context Arbitration Act, 1940 observed as under:-
“Even if there exists an arbitration clause in a n agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal agency, constituted under the Consumer Protection act, since the remedy provided under the act is in addition to the provisions of any other law for the time being in force.”
In the paragraph no-66 of the Madhusudhan Reddy’s case (supra) the Hon’ble Supreme Court has held that-
66. “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may
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be possible to say that he cannot, subsequently, file complaint under the Consumer act. However, if he chooses to file a complaint in the first instance before the competent Consumer forum, then he cannot be denied relief by invoking section 8 of the arbitration and Conciliation Act, 1996. Moreover, the plain language of section 3 of the Consumer act makes it clear that the remedy available in that act is in addition to and not in derogation of the provisions of any other law for the time being in force.”
Very recently the Hon’ble National Commission has passed one judgment on 13.05.2013 in the Revision Petition no-412/2011 in a case of DLF Limited vs. Mridul estate private Limited, based on the abovementioned judgment, wherein it has been held that Consumer Forums constituted under the C.P. Act are not bound to refer the dispute to the arbitrator in view of the arbitration clause mentioned in any document of the OP.
In view of the abovementioned judgments of the Hon’ble Supreme Court as well as the National Commission we are of the view that in the case in hand though there exits one Arbitration Clause in the terms and the conditions of the questioned policy, this case is very well maintainable before the Consumer Forum in view of the Section-3 of the Consumer Protection Act, 1986.
Now we are to adjudicate where there was any deficiency in service or unfair trade practice on behalf of the Ops. It is also pertinent to mention that though in the written version the OP-1&2 have taken one point that the banker of the complainant has not been made necessary party in this proceeding, but later the OP-3&4 was incorporated by the complainant as necessary parties in this complaint. We have noticed that there are some admitted points in the instant complaint i.e. the complainant with a view to purchase one Honda motorcycle obtained loan from the OP-1&2 to the tune of Rs. 40,000=00, it was scheduled that the entire loan amount
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along with interest @12.5% was to be repaid by 23 installments, the amount of each installment was of Rs. 2,174=00, the complainant deposited 23 post-dated signed cheques of UBI, Bidhannagar Branch, Durgapur -12 in favour of the OP-1&2 and the same were accepted by the OP-1&2 on 07.7.2011. It was also scheduled as per loan-cum-hypothecation agreement in which the complainant and the OP-2 have entered into that after repayment of entire loan amount along with interest the duplicate key of the vehicle and NOC will be provided to the complainant, those cheques were cheques of Durgapur, the cheques were issued by the father of the complainant as the father of the complainant was a customer of the OP-3&4, nor the complainant. Accordingly, after submission of 23 post-dated cheques the OP-1&2 started to encash the same from the given branch of UBI. The allegation of the complainant is that inspite of making repayment of the entire loan amount along with interest as settled as per agreement the OP-1&2 have claimed illegally and unauthorizedly amounting to 1,286=40 towards overdue charges by issuing a letter dated 28.7.2013 and on this ground the OP-1&2 have refused to provide the duplicate key of the vehicle, as well as, issue the NOC to him. According to the complainant such action of the OP-1&2 suffers from deficiency in service, as well as, unfair trade practice, so redressal of his grievance this complaint has been initiated. The allegation of the complainant against the OP-3&4 is that they have bounced two cheques illegally and without assigning proper reason, not only that the reason as assigned is not at all believable. It is seen by us that out of 23 cheques two cheques were dishonoured by the UBI being no. 715584 & 715585. The first was dishonoured on the ground ‘no such account’ and the second one for ‘insufficient fund’. Admittedly, at the time submission of the post-dated cheques it was told by the complainant that those were local cheques and the same should be deposited with local branch of UBI-the banker of the complainant. But admittedly the OP-1 knowing fully, the same two cheques was deposited before the branch outside
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from Durgapur i.e. Bowbazar branch, Kolkata. In the written version the OP-1&2 have categorically stated that there was no mal-intention of the OP-1&2 for depositing the cheques to Kolkata, but as per banking norms and core banking system it was the discretion of the OP where they will deposit the said cheques for encashment and in this respect the Op-2 followed the guideline of RBI. So there was no laches on the part of the OP-1&2 for depositing the cheques outside Durgapur. In this respect we are to say that where it is admitted by the OP-1&2 that at the relevant period core banking system were prevalent and submission of cheques as per guideline of RBI hence, the OP-3&4 cannot take pleas simultaneously that the OP-1&2 deposited two cheques beyond local jurisdiction. If core banking system was prevailing at that relevant time, hence such observation as made out by the UBI towards the reason of bouncing of two cheques cannot be proper. Because UBI has mentioned the reasons as ‘no such account’ and ‘insufficient fund’. Admittedly there was sufficient fund during that date in the account of the complainant while the cheque no. 715585 was deposited for encashment by the OP-1&2 and core banking system was prevailing, the UBI had no authority to assign the reason for bouncing the cheque being no. 715584 as ‘no such account’. Admittedly, it was the duty of the OP-1&2 to submit the two cheques within local branch because before submitting 23 post-dated cheques it was told by the complainant to the OP-1&2. After dishonouring of two cheques admittedly the said amount was realized from the complainant, which was paid by him in cash and the said picture is evident from the bank statement. It is true that at the time of realization of the said amount i.e. Rs. 4,348=00 no overdue charge, penal charge, cheque bouncing charge or other charges, whatever it may be, did not impose on the shoulder of the complainant. But while the complainant after repayment of the entire loan amount along with interest sought for the duplicate key of the vehicle along with NOC hence, the OP-1&2 have arbitrarily issued one notice claiming a sum of Rs. 1,286=40 from the
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complainant towards overdue charge. In our view the OP-1&2 cannot claim the same amount because due to their laches they deposited the local cheques beyond the local branch of UBI. Therefore, the OP-1&2 are under obligation to state why such submission of cheques was made by them going beyond the direction of the complainant. If according to the Op-1&2 core banking system was prevalent, then also question did not arise for bouncing of two cheques as because admittedly since then till today the account is existing with sufficient fund. Therefore, the reasons as assigned by the OP-3&4 are highly illegal and arbitrary in nature. In the paragraph no. 3 of the written version given by the OP-3&4 wherein it is stated that it was a great mistake to dishonor those cheques for which the complainant had to suffer. As the OP-3&4 have admitted their mistake, deficiency in service cannot be proved by the complainant himself. As the entire repayment towards loan and hypothecation agreement has been paid by the complainant along with settled interest, now the OP-1&2 are under obligation to return the duplicate key of the vehicle along with the NOC to the complainant immediately. As due to mistake and laches on the part of the OP-1&2 two cheques were bounced, while there was sufficient fund in the account of the complainant, the OP-1&2 are not entitled to claim any farthing from the complainant which they did. So the OP-1&2 cannot claim the amount of Rs. 1,286=40 as demanded. It is true that due to deficiency in service, as well as, unfair trade practice of all the Ops the complainant had to approach before this ld. Forum praying for some relief as well as return of two articles for which he had to incur some cost. In our view the OP-1, 2, 3 & 4 are under obligation for making compensation and cost to the complainant because due to their unnecessary harassment the complainant had to suffer harassment, mental agony and pain. Though the complainant had stated that due to such behaviour of the
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Ops he did not obtain desired result in the examination, but no such cogent document is adduced by the complainant that due to such action of the Ops his academic result became very poor.
Going by the foregoing discussions, hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The OP-1&2 are directed not to claim the amount of Rs. 1,286=40 from the complainant, to return the duplicate key of the vehicle and handed over the ‘No Objection Certificate’ within 45 days from the date of passing of this judgment, in default, the complainant will be at liberty to put this decree into execution as per provisions of law. The OP-1, 2, 3 & 4 shall pay compensation to the tune of Rs. 2,000=00 due to unnecessary harassment, mental agony and pain and litigation cost of Rs. 1,000=00 to the complainant jointly within a period of 45 days from the date of passing of this order, in default, the complainant will be at liberty to put the entire decree into execution as per provisions of law. With the above-mentioned observation the complaint is thus disposed of accordingly.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
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