Date of filing: 04/10/2020                                                    

Date of Judgment: 06/10/2023

Mr. Sudip Niyogi, Hon’ble President.

                                                              BRIEF FACTS

As the complainant was in need of a  Mid-Ranged Car, their representative Mr. Bharat Sarda visited the show room of OP No. 1 and on being convinced about the representation of OP No. 2 who was a sales executive at the Nexa Show Room of OP No. 1 at 109, 1, Upper Fore Shore Road, Ramkrishnapur, Chourabastee, Shibpur, West Bengal – 711 102 and finalized the deal on 28/07/2018 for purchasing of one Nexa Ciaz Alfa (Sangria Red Colour_ bearing Registration No. WB-02-AM8312 at a consideration of Rs. 8,70,000/-. Complainant handed over a cheque to OP No. 2 on 28/07/2018 for an advance booking amount of Rs. 50,000/- vide cheque no. 213073. The said cheque was encashed by OP No. 1 and it was agreed, on payment of the remaining consideration, OP No. 1 would deliver the car to the complainant. Thereafter on 20/08/2018 complainant issued a cheque for Rs. 8,20,000/- vide cheque no. 006757 to OP No. 2 for which a receipt was issued but to the utter shock and disbelief of the complainant the said cheque was never presented to the bank by the OPs nor did they return the same to him or his representative though complainant had to maintain a balance of the amount of said cheque all the time. Thereafter on 06/09/2018 he issued a notice to OP No. 1 for delivery of the car to them but no reply was given by OP No. 1 nor the car was delivered to him. The amount of advance was also not returned. Complainant again issued a notice on 10/02/2020 and on receipt of the said notice OP issued a cheque being no. 796408 dated 27/02/2020 on Yes Bank Limited, Stiphen House Branch for an amount of Rs. 52,700/-. But the complainant could not deposit the said cheque with their bank because of the lock down and there was also a moratorium. So complainant claimed refund of Rs. 50,000/- which was paid in advance for the car along with interest @ 18% p.a. from 1^st August, 2018 and also prayed for compensation of Rs. 1,00,000/- for being compelled to maintain a balance of Rs. 8,20,000/- for a period of 90 days because of the cheque of the said amount was issued to OP No. 1 for the car. He also claimed for damages etc. in his petition of complaint.

In their written version OP No. 1 claimed to have no knowledge about payment of any money by way of cheque. They denied all the contentions and allegations of the complainant. OP No. 2 claiming to be the sales executive of OP No. 1 admitted to have received a cheque from the complainant for Rs. 8,20,000/- and issued money receipt but did not encash the said cheque. He also admitted that the complainant paid Rs. 50,000/- to OP No. 1 but thereafter he did not pay the balance consideration for which the deal was not completed. He also claimed that the said amount of Rs. 50,000/- with interest was also refunded by cheque vide letter dated 27/02/2020. He also claimed to have requested the complainant for taking back the cheque of Rs. 8,20,000/- but he was reluctant to take back the cheque.

Now the point for consideration is whether the complainant is entitled to any relief(s) in this case?

                                                               FINDINGS

Both parties filed evidence, also questionnaires and replies thereto. Complainant filed document. Written argument on behalf of OP No. 1 was also filed.

It is found that OP No. 1 claimed that the deal to purchase the vehicle by the complainant was made with the NEXA Fore Shore Road, Mechino Techno Sales Limited, Howrah and not with OP No. 1. However it is admitted by OP No. 1 that the show room at the said Fore Shore Road, Shibpur, Howrah belongs to them but the staff and employees are separate. In the written argument filed on behalf of the OP No. 1 it is found admitted that complainant had paid Rs. 50,000/- by cheque as advance for the demo / test drive car at a consideration of Rs. 8,70,000/- and the remaining amount of Rs. 8,20,000/- to be paid within 7 days from the date of said advanced payment. But Op No. 1 claimed the said balance payment was not paid by the complainant within the said period and thereafter the said transaction was cancelled. It is found that on 20/08/2018 complainant issued one account payee cheque of Rs. 8,20,000/- in the name of Mechino Techno Sales Ltd. Complainant also produced the proforma invoice dated 20/08/2018 for the entire payment of Rs. 8,70,000/-. Though advance amount of Rs. 50,000/- was paid by cheque dated 28/07/2018. OP No. 1 also admitted that they refunded the advanced amount of Rs. 50,000/- together with interest for Rs. 2,700/- in total Rs. 52,700/- by issuing a cheque to the complainant. However complainant claimed as there was moratorium and lockdown the said cheque could not be deposited with the bank. But thereafter no cheque for that amount was issued by the OPs for which the said amount still remain unpaid.  It is further found that the cheque for Rs. 8,20,000/- as issued by the complainant was also not encashed.

Now the complainant claimed in this case refund of Rs. 50,000/- which was paid as advance and interest on the said amount along with compensation for damages compensation etc. As the cheque of Rs. 52,700/- issued by the OP in the name of the complainant for the advance amount with interest as refund of  the booking amount could not be deposited with the bank and encashed by the complainant, OPs are to issue a cheque afresh for the said amount of advance of Rs. 50,000/- along with interest @ 9% p.a. from the date of 27/02/2020 on which date OP No. 1 issued the cheque of Rs. 52,700/- till the date of actual payment. Apart from this complainant is entitled to Rs. 5,000/- for cost of litigation. Be it noted here we are not going to pass any order for compensation or damages on the facts and circumstances of this case.

Therefore it is

                                            ORDERED

That the instant complaint case stands allowed on contest against the OPs.

OPs are directed to refund the amount of Rs. 50,000/- along with interest @ 9% p.a. from the date of 27/02/2020 till the date of actual payment. OPs are also to pay Rs. 5,000/- for cost of litigation to the complainant.

OPs to comply with this order within 30 days from the date of this order failing which complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

President