HON’BLE SHRI SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
02.07.2015
The instant appeal under Section 15 of the Consumer Protection Act, 1986, is at the behest of opposite parties viz. (1) IndusInd Bank, (2) The Manager, IndusInd Bank, Kulpi Road, Sriti Bhawan, P.O. & P.S. – Baruipore, Kolkata – 700 144 to impeach the judgment dated 18.11.2014 passed by the Ld. District Forum, South 24 Parganas at Alipore in CC Case No. 388 of 2014.
The Respondent herein Sri Kamal Garai, being Complainant initiated the complaint before the Ld. District Forum on the ground that the Appellants after receiving a sum of Rs.1,58,600/- in cash sanctioned a car loan to purchase one Indigo – ECS car and the amount of such loan was assessed at Rs.4,25,000/-. However, when the Respondent went along with delivery order issued by the Appellants to the showroom for taking delivery of the car, the dealer of the showroom informed the respondent that the bank had cancelled the delivery order as such car was not delivered. Thereafter, the Respondent requested the Appellants to refund the money deposited by him, but it yielded no result. Hence, the action by lodging one complaint before the Ld. District Forum on 21.08.2014.
By judgment dated 18.11.2014, the Ld. District Forum decreed the complaint case exparte with cost of Rs.5,000/- against the opposite parties i.e. the Appellants herein. The Opposite Parties/Appellants were directed to refund the amount of Rs.1,58,600/- together with interest @ 9% from the date of payment till this day, compensation to the tune of Rs.50,000/- for harassment, mental agony etc. and cost of Rs.5,000/- within one month from that day, failing which they will have to pay a penalty @ Rs.100/- per diem from the date of default till full payment. The Opposite Parties/Appellants were also directed to deposit penalty of Rs.1,00,000/- to the Consumer Welfare Fund within one month from that day for adopting unfair trade practice upon the society. This order led the Opposite Parties/bank authority to prefer this appeal.
The point arises for consideration in this appeal as to whether or not the Ld. District Forum was justified in passing the order impugned.
DECISION
The factual matrix of the case makes it abundantly clear that the Respondent herein being a customer approached the Appellants for obtaining loan in order to purchase a vehicle being Indigo – ECS on 27.03.2014. It was agreed that the Appellants would sanction a car loan of Rs.4,25,000/- to the Respondent on received of a cash amounting to Rs.1,58,600/-. From the materials on record it reveals that the Respondent had submitted several documents in the bank for obtaining loan. However, it was found that those documents on the basis of which the Respondent had claimed loan are not genuine. In this regard, a letter written by the Respondent to the Branch Manager of IndusInd Bank, Baruipore Branch i.e. the Appellant No. 2 is a pointer. On perusal of the said letter it appears that the Respondent took help of a broker (Dalal) to prepare documents in order to obtain loan. The letter dated 25.05.2014 clearly indicates a racket of some unscrupulous persons who are preparing false documents for availing loan facilities. We are at a loss to understand why inspite of such letter dated 25.05.2014 the Branch Manager did not inform the police to unearth the truth. We are sure had it been referred to the police the actual culprit could have been booked.
Be that as it may, we are concerned about the merit of the case. The Ld. Advocate for the Appellants did not deny the fact that his clients are liable to return the amount of Rs.1,58,600/- as paid by the Respondent as down payment for purchasing vehicle. However, the bank authority has asked Respondent to produce the original money receipt of the down payment amount. Such a plea does not appear to us convincing because when the bank authority after ascertaining proper identification of the Respondent has sanctioned the loan and accepted an amount of Rs.1,58,600/- as down payment certainly there should have been no predicament on the part of them to repay the said amount to the Respondent.
The conduct on the part of the Appellants also does not appear to us convincing because after service of notice they did not appear before the Ld. District Forum. Even on 15.10.2014 when the Complainant/Respondent had filed examination-in-chief on affidavit, on the prayer of the Opposite Parties/Appellants the time was allowed to file written version. In spite of that on the adjourned date the Appellants did not take any proper steps and as such under painful compulsion the Ld. District Forum decided and disposed of the case exparte.
In course of advancing argument Ld. Advocate for the Appellants has drawn our attention to two decisions of Hon’ble National Commission reported in (1) I (2015) CPJ 323 (NC) [Girish K. Vora – vs. – Hongkong and Shanghai Banking Corporation Ltd. & Ors.] & (2) II (2015) CPJ 551 (NC) [Allahabad Bank & Ors. – vs. – Shrawan Kumar Poddar & Anr.] The facts and circumstances of those cases are distinguishable with the facts and circumstances of our case because when the bank authority has accepted the contention of the Respondent that they had received Rs.1,58,600/- from the Respondent and further they did not repay the same on the plea of money receipt, we think the referred decisions would not help them to absolve their responsibility in refunding the money received by them.
The Ld. District Forum in passing such order has relied upon unchallenged testimony of the Respondent and held that there was unfair trade practice on the part of the bank authorities. Being a customer the Respondent had opportunity to get back the money in time and had there been any malpriace, fraud etc. on the part of him, that should have been brought to the notice of the police as this kind of allegations to be construed as an offence against the State.
Taking into consideration the entire facts and circumstances, it appears to us that the Ld. District Forum was quite justified in decreeing the case exparte with cost of Rs.5,000/- inasmuch as the Opposite Parties/Appellants could not deny the acceptance of Rs.1,58,600/- from the Respondent. However, the imposition of compensation to the tune of Rs.50,000/- for harassment, mental agony etc. and imposing penalty of Rs.1,00,000/- to the Consumer Welfare Fund within one month from the date of delivery of judgment does not appear to be in consonance with the nature of allegation and other attending circumstances.
For the reasons aforesaid, the appeal is allowed in part on contest and disposed of accordingly. There will be no order as to cost in this appeal.
The order passed by the Ld. District Forum, South 24 Parganas at Alipore dated 18.11.2014 in CC Case No. 388 of 2014 is modified to the extent that the Appellants shall refund the sum of Rs.1,58,600 (Rupees one lac fifty-eight thousand and six hundred only) together with interest thereon @ 9% p.a. from the date of payment till the day of recovery. In addition to the same, the Appellants shall pay a cost of Rs.5,000/- (Rupees five thousand only) as imposed by the Ld. District Forum by the impugned judgment. However, the imposition of compensation to the tune of Rs.50,000/- for harassment, mental agony etc. and imposing penalty of Rs.1,00,000/- to the Consumer Welfare Fund are set aside.
