Date of Filing: 10.12.2018 Date of Disposal: 16.11.2022
Complainant : 1. Nanda Ghosh, son of Late Gopeswar Ghosh.
2. Rekha Ghosh, wife of Nanda Ghosh, both residing at
Vill – Bhabanandapur, P.O. – Goda Annanda, Block – Kalna,
Dist. Burdwan, Pin – 713122.
-VERSUS -
Opposite Party : 1. M/s. Bharat Mechinery & Spares, Station Bazar, P.O – Katwa,
Dist.- Burdwan, West Bengal -713130.
2. The Proprietor, M/s. Bharat Mechinery & Spares, Station Bazar,
P.O – Katwa, Dist. – Burdwan, West Bengal – 713130.
Compound, Burdwan Town, P.O., P.S. & Dist. Burdwan.
3. Br. Manager, Axis Bank, Kalna Branch, P.S. – Kalna, Burdwan,
West Bengal – 713409.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainants : Ld. Advocate Antara Debnath
Ld. Advocate P.K. Bhattacharya
Appeared for the Opposite Party Nos. 1 & 2 : Ld. Advocate Soumen Bhattacharya
Opposite Party No. 3 : Ld. Advocate Debdas Rudra
FINAL ORDER
On 10.12.2018 the complainants has filed a complaint u/S 12 of the C.P. Act, 1986 against the OPs.
The case of the complainants, in brief, is that they purchased a Tractor of DT – 47 RX Model at the value of Rs. 7,74,000/- (Rupees seven lakh seventy four thousand only) and they made down payment of Rs. 1,00,000/- (Rupees one lakh only) on 22.03.2016 and deposited Rs. 50,000/- (Rupees fifty thousand only) on 02.05.2016 and subsequently on 10.05.2016 paid Rs. 81,000/- (Rupees eighty one thousand only) . The complainants made total payment of Rs. 2,31,000/- (Rupees two lakh thirty one thousand only) by taking loan from the Axis Bank, Kalna Branch and loan amount was directly paid to the OPs against Loan A/c No. LNR 021301847445. OP No.1 thereafter issued Road Challan dt. 22.03.2016. It is further stated that the Tractor was handed over to the complainants for demonstration purpose and an undertaking was obtained at the foot of the Road Challan that the Tractor shall be returned on demand but the OP No.1 failed and neglected to deliver the said Tractor Sale Bill, Blue Book, Insurance papers and all relevant documents etc. though the charge of Rs. 11,300/- (Rupees eleven thousand three hundred only) was taken for the same and Rs. 10,700/- (Rupees ten thousand seven hundred only) was taken for the insurance. The complainants will have to pay EMI to the tune of Rs. 37,700/- (Rupees thirty seven thousand seven hundred only) and the interest charged @ 16.97%. The complainants again and again requested the OPs for handing over the said papers and documents regarding the Tractor to them. On 14.03.2017 the complainants wrote a letter for the same. Thereafter on 29.06.2017 a representation was given to the OP No.3 but the complainants did not get any reliefs but they surprised to receive a Notice from the OP No.3 threatening a Legal action and was informed about the appointment of Sole Arbitrator. The complainants were not agreeable to such Arbitration Proceeding and protested against such Arbitrary Proceedings vide their letter dt. 25.09.2018 and OP No.3 informed that an award of Rs. 4,90,671/- (Rupees four lakh ninety thousand six hundred seventy one only) along with interest @ 24% and also further interest @18% was passed.
Under the above circumstances the OPs committed deficiency in service.
The complainants filed a consumer complaint before the CDRF Unit – II at Kolkata, being CC No. 422/2017. But due to technical defect the Ld. Forum vide its Order No. 16 dt. 18.08.2016 granted leave to the complainants to file the complaint afresh before a Court of Competent Jurisdiction of the same Cause of Action. Hence, they filed this case before this Forum.
The Cause of Action arose on 22.03.2016 and subsequently on 02.05.2016 and lastly on 28.08.2018 when leave granted to file the complaint afresh and continuing day by day.
Upon this back ground, the complainants prayed for passing an order upon the OP No.1 to handover the requisite documents to make the Tractor Roadworthy and to pay Compensation of Rs. 2,00,000/- (Rupees two lakh only) along with Interest @ 12% p.a. from the date of filing of the complaint and the litigation Cost to the tune of Rs. 20,000/- (Rupees twenty thousand) only.
OP No.2 has contested the case by filing W/V. OP No.3 also has contested the case by filing separate W/V.
All the OPs denied the material allegations of the complainant and stated that the complainants have no Cause of Action for the suit and that the case is barred by the principles of natural justice.
The case of the OP Nos. 1 & 2 is that the complainants have not uttered a single word in respect of unpaid Rs. 12,306/-. There is no failure or negligence on the part of OP Nos. 1 & 2 and there is no deficiency of service by OP Nos. 1 & 2 with regard to the complaint and the complainants did not come to the Ld. Forum with clean hands.
Upon this back ground, they prayed for dismissal of the case.
The specific case of the OP No.3 is that the complainants did not pay EMIs properly and they cropped up a story of Arbitration Proceedings which has already stated by the complainants in their complaint. The complainants did not take loan from the Axis Bank, Kalna Branch, for purchasing the Tractor and impleaded him only to cause harassment.
Upon this background, he only prayed for dismissal of the case.
Decision with reason
In order to prove the case the complainant Nanda Ghosh filed evidence-on-affidavit and Xerox copies of some documents.
The OP Nos. 1 & 2 also filed evidence-on-affidavit. OP Nos. 1 & 2 also filed some Xerox copies of documents. The complainants filed questionnaire to the OPs and OPs filed reply. The complainants also filed Brief Notes of Argument but OPs did not file any Brief Notes of Argument.
Perused the complaint, Written Versions, evidence-on-affidavit of both sides and Written Notes of Argument filed by the complainant. We also perused the Xerox copies of the documents so filed by the both sides. From the evidence on record, it appears that the complainant purchased the Tractor in question from the OPs and the Tractor was delivered to the complainant. The vehicle particulars have issued by the Registering Authority, Kalna, Burdwan. It appears that the vehicle has been registered in the name of complainant Nanda Ghosh and from the Xerox copy of the Insurance paper it also appears that the vehicle has been insured in the name of complainant Nanda Ghosh. These papers have been filed by the OPs and the OP M/s Bharat Machinery & Spares also filed a Xerox copy of papers in the name of Nanda Ghosh showing the accounts of the deposit and expenditure regarding the payment and other cost of the papers and Rs. 12,306/- (Rupees twelve thousand three hundred & six only) has been due, which is to be paid by the complainant. The complainant also filed a Xerox copy of the estimate/scheme which shows the value of the vehicle and payment and other cost of Insurance Policy etc. including down payment. This estimate scheme also shows that Rs. 1,34,200/- (Rupees one lakh thirty four thousand two hundred only) is also due by the complainant. But subsequently the Statement of Account issued by the OP M/s Bharat Machinery & Spares on 24.04.2016 disclosed that only Rs. 12,306/- (Rupees twelve thousand three hundred six only) is due, which is to be paid by the complainant to the OP. But there is no evidence to show on behalf of the OPs that the papers i.e. purchase bill, Registration Certificate and Insurance papers have been given to the complainant.
Therefore, the complainant is entitled to get the said papers from the OPs. But the complainant has to pay the due amount of Rs. 12,306/- (Rupees twelve thousand three hundred & six only) to the OP M/s Bharat Machinery and Spares. Under the above facts and circumstances we are of opinion that the complainant is directed to pay the due amount of Rs. 12,306/- (Rupees twelve thousand three hundred and six only) to the OP M/s Bharat Machinery and Spares and the OPs are directed to handover the said papers i.e. Purchase Bill/Receipt, Insurance papers, Registration certificate etc. to the complainant.
As regard the compensation and litigation cost we find nothing to allow the compensation and litigation cost as because there are liabilities in respect of transactions on both sides.
Hence, it is
Ordered
that this case be and the same is allowed in part, in view of the above made findings but without any cost. The complainant is directed to pay the due amount of Rs. 12,306/- (Rupees twelve thousand three hundred and six only) to the OP M/s Bharat Machinery and Spares and the OPs are directed to handover the said papers i.e. Purchase Bill/Receipt, Insurance papers, Registration certificate etc. to the complainant.
Both the parties are directed to comply with the above Order within forty five days from the receipt of the order of this case.
Let a copy of this Order be given to the parties free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
