DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 339 of 27.11.2007<br /> Decided on : 18.02.2008<br /> <br /> Angrej Singh S/o Sh. Jangir Singh, R/o Village Desu Jodha, Tehsil Dabwali, District Sirsa.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. Mahindra & Mahindra Financial Services Ltd., Registered Office, Gateway Building, Apollo Bunder Mumbai-400001, through its Chairman/Managing Director/General Manager.<br /> 2. Mahindra & Mahindra Financial Services Ltd., Branch Office, S.C.O No. 3, Ist Floor, Sector 26, Chandigarh through its Branch Manager/Authorized Representative.<br /> 3. Mahindra & Mahindra Financial Services Ltd., Branch Office, Bathinda through its Branch Manager/Authorized Representative.<br /> ...... Opposite parties<br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. S.P.S Khokhar, Advocate<br /> For the opposite parties : Sh. K.K Vinocha, Advocate<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant was to purchase Tractor for agricultural purposes. Opposite parties had launched a scheme to provide Mohindra Tractors on hire purchase basis. After getting some formalities completed and obtaining signatures from him on some blank papers, opposite parties got arranged 605 DI Mohindra Tractor from M/s. Kisan Tractor Company, Talwandi Sabo for him vide delivery challan No. 66 dated 24.7.2001. He has to pay loan amount with half yearly rests. He has Saving Bank A/c No. 1082 in Punjab National Bank, Raman Mandi. His signatures were obtained on a few blank cheques drawn on Punjab National Bank, Raman Mandi towards security of the loan amount etc. He was using the Tractor. After a few days, he felt that it was not lucky for him as it was causing continuous loss to him due to which he was even unable to pay the amount of instalments. As per Hire Purchase Agreement which is in possession of the opposite parties, he surrendered this Tractor to them on 26.12.2002 and adjusted the account. Nothing is outstanding towards him. At the time of surrendering the Tractor and settlement of the account, he had requested the opposite parties to return him the blank documents and cheques which were obtained from him, but they postponed the matter on the ground that they are lying with the Head Office and it would take time for their return. He was further told that since the account has been adjusted, there was no worry for him. Moreover, Head Office has already destroyed the documents and cheques. Believing them, he felt relaxed and stopped demanding the documents and cheques. In the year, 2006 i.e. after a gap of about four years, legal notice was sent by the opposite parties demanding illegal amount. Reply of the notice was sent by him through his counsel. They extended threat that either payment of the demanded amount be made failing which they would misuse blank cheques. When he raised protest, he was misbehaved. In these circumstances, instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been filed seeking direction from this Forum to the opposite parties to return the blank documents and cheques and not to use them; pay Rs. 50,000/- on account of mental tension, agony and loss to reputation and Rs. 5,000/- as litigation expenses.<br /> 2. Opposite parties filed their version taking legal objections that complainant has not come with clean hands; this complaint has been filed by him to save himself from penal consequences under section 138 of the Negotiable Instruments Act (Here-in-after referred to as Instruments Act) concerning cheque dated 9.9.2006 for Rs. 1,77,438/- issued by him out of his Saving Bank Account with Punjab National Bank, Raman Mandi favouring them and that has been dishonoured vide memo dated 28.9.2006. Complaint under section 138 of the Instruments Act is already pending before Judicial Magistrate, Chandigarh since 23.11.2006 and is fixed for 5.8.2008; he has no locus-standi and cause of action to file the complaint as no blank cheque or other document was ever handed over to them nor such document is in their possession; complaint has been filed with bad motive to avoid recovery of lawful dues from him which not only he, but his co-borrower namely Jarnail Singh admits to be due as both of them after admitting and confirming balance have agreed to pay Rs. 2,40,000/- in instalments vide letter dated 14.9.2006; Tractor was obtained for commercial purpose and as such, complainant is not consumer; matter concerning the cheque is already sub-judice and complaint is false and frivolous. On merits, their plea is that complainant alongwith his co-borrower had got Tractor from them on loan/hire purchase basis in the year 2001 after completing the requisite documents. Tractor was purchased from Kisan Tractor Company. It was got hypothecated in terms of the agreement. All the documents including agreement were duly filled in, read over and explained to the executants. Complainant, his co-borrower and their guarantor had signed/thumb marked them after admitting them as correct. Balance after disposing of the Tractor was agreed to be paid by the complainant and his co-borrower in terms of the agreement. After disposal of the surrendered Tractor, short fall standing to the credit of the complainant and his co-borrower was requested to be paid by sending letters/reminders, but complainant failed to make the payment. Legal notice dated 6.4.2006 was also got served. Cheque referred to above, was issued by him which was dishonoured on account of which complaint under Instruments Act has been filed. They deny that at the time of surrendering of the Tractor, accounts were settled. Malafide intention of the complainant is clear from the fact that instead of giving reply to the notice dated 10.10.2006 issued under section 138 & 142 of the Instruments Act before filing the complaint, has given reply of earlier notice dated 6.4.2006 on 17.10.2006. They deny the remaining averments in the complaint.<br /> 3. In support of his allegations and averments in the complaint, Angrej Singh complainant tendered into evidence his own affidavit (Ex.C.1), affidavit (Ex.C.2) of Jarnail Singh, photocopy of delivery challan (Ex.C.3), photocopy of customer's details (Ex.C.4), photocopy of cash receipt (Ex.C.5), photocopy of legal notice dated 6.4.2006 (Ex.C.6), photocopy of reply dated 17.10.2006 to the legal notice dated 6.4.2006 (Ex.C.7), photocopies of postal receipts (Ex.C.8 & Ex.C.9) and certificate dated 21.1.2008 (Ex.C.10).<br /> 4. On behalf of the opposite parties, reliance has been placed on affidavit (Ex.R.1) of Sh. Sanjib Kumar Dass Associate Manager of opposite party No.1, photocopy of power of attorney (Ex.R.2), photocopies of letters dated 10.10.2006 & 14.9.2006 (Ex.R.3 & Ex.R.5), photocopies of complaint under section 138 of the Instruments Act (Ex.R.4 & Ex.R.10), photocopy of account statement (Ex.R.6) & photocopies of Interim Orders (Ex.R.7 to Ex.R.9).<br /> 5. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties.<br /> 6. Arguments pressed into service by the learned counsel for the complainant are that cheque book was issued to the complainant on 30.7.2001 as is evident from Ex.C.10. Tractor purchased by complainant was surrendered on 26.12.2002. He had settled all his accounts with the opposite parties. Despite this, blank documents and cheques were not returned. After a gap of about four years, opposite parties issued notice in the year 2006 which was duly replied. Threat was given to misuse the blank cheques and documents. Opposite parties have distorted the facts stating that complainant had delivered cheque No. 740382 dated 9.9.2006 for Rs. 1,77,438/- in order to discharge his liability and that has been dishonoured regarding which they have filed complaint under section 138 of the Instruments Act. If cheque was issued on 9.9.2006, there was no question of acknowledging the debt on 14.9.2006. Complainant had no legal liability for issuing the cheque. Moreover, complainant was liable only to make payment till he was in custody of the Tractor. In these circumstances, deficiency in service on the part of the opposite parties is proved. For this, he drew our attention to the documents Ex.C.1 to Ex.C.10.<br /> 7. Mr. Vinocha learned counsel for the opposite parties argued that no deficiency in service on the part of the opposite parties is proved and complaint has been filed on false and frivolous grounds. <br /> 8. We have considered the respective arguments. There is no dispute about the fact that Tractor was purchased by the complainant. It was hypothecated with the opposite parties. As per terms and conditions of the agreement executed by him with the opposite parties, it was surrendered by him on 26.12.2002.<br /> 9. Copy of the account statement concerning the complainant is Ex.R.6. A perusal of this document reveals that finance made available to the complainant by the opposite parties for purchase of Tractor was Rs. 3,50,000/-. Finance charges were Rs. 2,15,000/-. Agreement value was Rs. 5,65,000/-. Loan amount was returnable within 60 months. Surrendered Tractor was sold on 26.12.2006 for a sum of Rs. 2,40,000/-. Pre-closure amount on sale date was Rs. 4,85,913/-. According to this document, outstanding amount is Rs. 2,45,913/- excluding interest as per terms and conditions of the agreement. <br /> 10. Material questions for determination are as to whether blank documents and cheques were obtained by the opposite parties from the complainant. They have denied this allegation of the complainant. Their plea is that all the documents including agreement were duly filled in, read over and explained to the complainant, his co-borrower and their guarantor and they had signed/thumb marked them after admitting them as correct. Affidavits of the complainant and Jarnail Singh which are Ex.C.1 and Ex.C.2 stand amply rebutted with the affidavit of Sh. Sanjib Kumar Dass, Associate Manager of the opposite parties. No-doubt, complainant has placed on record Ex.C.10 which reveals that cheque book was issued to the complainant by Punjab National Bank on 30.7.2001 concerning his account No. 1082. Mere fact that he got the cheque book issued on this date is no ground to hold that blank cheques were given by him (complainant) to the opposite parties while availing the loan facility for purchase of the Tractor on hire purchase basis. Story of the complainant regarding the delivery of the blank cheques to the opposite parties is vague. He has not mentioned the numbers of the blank cheques which were allegedly delivered to the opposite parties. Similarly, date of delivery of the alleged blank cheques has not been disclosed. There is no cogent and convincing evidence of the complainant to prove that blank cheques were given for getting the Tractor on hire purchase basis. Similarly, allegation that blank documents were given is not substantiated. Nature of the blank documents allegedly given to the opposite parties is not known. Prayer of the complainant that direction be given to the opposite parties to return him the blank documents and cheques, cannot in any way be acceded to by this Forum, especially when nature of the documents and the particulars of the cheques are not known.<br /> 11. Next question for determination is as to whether complainant had settled the accounts with the opposite parties while surrendering Tractor to them on 26.12.2002 and nothing was outstanding towards him. Onus to prove it is upon him. No document has been placed and proved on record by him to show the adjustment of the accounts with the opposite parties at any time. In the absence of proof regarding adjustment of the accounts, mere affidavit of the complainant which stands amply rebutted with the affidavit Ex.R.1, cannot be given any weight. This alleged settlement of account was not regarding meagre amount. When huge amount was involved, complainant could get the document about adjustment in black and white. When adjustment of the accounts is not proved, it does not lie in his mouth that there was no legal liability upon him towards the opposite parties and there was no question of issuing cheque dated 9.9.2006. Moreover, on 14.9.2006, he and Jarnail Singh acknowledged their liability and agreed to pay the short fall amount. Cheque dated 9.9.2006 was dishonoured due to insufficiency of funds. From this inference is that complainant was aware about available funds in his account. In such a situation, if complainant and his co-borrower gave letter dated 14.9.2006, there was nothing wrong in it.<br /> 12. As discussed above, there was nothing on the record that blank cheques were handed over by the complainant to the opposite parties. Facts and circumstances of this case clearly show that complainant wants to evade penal consequences under the Instruments Act for which proceedings under section 138 of that Act are pending in the Judicial Court at Chandigarh as is clear from Ex.R.7 to Ex.R.10. That complaint under section 138 of the Instruments Act was filed by the opposite parties prior to the filing of this complaint. Opposite parties have proved copy of their account statement according to which outstanding amount is Rs.2,45,913/- excluding interest as per terms and conditions of the agreement. Legal notice to the complainant was issued. This fact has been admitted by him in para No. 7 of the complaint. Reply of this notice was given on 17.10.2006, copy of which is Ex.C.7. Opposite parties got issued another legal notice dated 10.10.2006 and copy of the same is Ex.R.3. It is only after the receipt of this notice dated 10.10.2006, complainant thought it fit to give reply dated 17.10.2006 of the previous notice dated 6.4.2006. Circumstances indicate that this complaint filed on 27.11.2007 is the counter-blast of the complaint under section 138 of the Instruments Act which is pending in the court of Judicial Magistrate at Chandigarh. No deficiency in service on the part of the opposite parties in rendering service towards the complainant is established. <br /> 13. In view of our forgoing discussion, complaint being devoid of merits is dismissed with costs of Rs. 1,000/-. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> <br /> Pronounced (Lakhbir Singh )<br /> 18.02.2008 President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> 'bsg' <br /> <br /> <br /> <br /> <br /> <br />