Ld. Advocate(s)

                                    For Complainant: Makbul Rahaman

                                    For OP/OPs :Swapan Ghosh

            Date of filing of the case                      :10.08.2020

            Date of Disposal  of the case              :30.04.2024

Final Order / Judgment dtd.30.04.2024

The non-delivery of a purchased Tractor  by the OP No.1 as alleged dragged   the   complainant   to   institute  the    present   case   against the Ops. The pith and substance of the case  of the complainant  is that the complainant Sahidul Sekh is a farmer having cultivated  land . He intended  to purchase a combined harvester  to maintain his livelihood. The OP No.1 M/S Father Tractor  (Proprietor  Mintu Sekh) suggested  the complainant  as a seller  to contact  with OP No.2, Chief Manager Bank of Baroda, Krishnagar Branch for taking loan with subsidy.  The OP Bank  informed  the complainant that they would  provide for subsidy  loan against some documents  and after depositing  margin money  of Rs.6,56,000/- and the complainant  would get  subsidy  of Rs.10,22,400/- and bank will provide for loan of Rs.8,77,600/-. Subsequently,  the complainant  went to the showroom  of OP No.1  M/S Father Tractor  with a request  to give quotation  of combined harvester. Accordingly, the OP No.1  sent the quotation to the OP No.2 Bank and further told that the price of the combined harvester  is Rs.25,56,000/-. The  complainant  contacted with the OP No.2 and submitted  some land papers and deposited  Rs.6,56,000/- as margin money for purchasing  the said combined harvester  to the OP No.1, M/S Father Tractor. The complainant  also gave some blank cheques with signature to the OP No.1. Subsequently, the OP No.2 bank sanctioned  loan for Rs.8,77,600/- in the name of the complainant  and deposited  to his account no. 09750100014607. Thereafter,  the OP No.2 bank  sent the subsidy  of Rs.10,22,400/- to the  savings account  of the complainant.  Thus the  total  amount was deposited  to the complainant’s account for Rs.25,56,000/-. Subsequently,  on 17.05.2019 the OP No.2 Bank  gave a delivery  order to the complainant  vide Memo No. BOB/KRINAD/06-14084 dated 17.05.2019. On 17.05.2019 the OP Bank also  issued a banker’s  cheque  in the name of M/S Father Tractor for Rs.25,56,000/- vide banker’s cheque no.132612 dated 17.05.2019 and the said amount was debited  from the account of the complainant and the said cheque  was handed over to the OP No.1.  Subsequently,  the OP Bank  open two loan accounts in the name of the complainant on 17.05.2019 vide loan account no.09750600014093 for Rs.8,77,600/- and another  loan account no.-09750600014094 for loan  of Rs.10,22,400/-, being  scheme  description  “Loan under subsidy  scheme”.  Interest was charged  upon the said loan account. Thereafter, the complainant went to the shop of the OP No.1 to take delivery  of the combined harvester  but they did not  state it.  The complainant  thereafter,  went to the OP No.1 several times  but till the filing  of this case they did not deliver  the said tractor. Therefore,  the complainant  informed  the matter to the Manager  of OP Bank on 27.05.2020 but they did not respond  against the same. Lastly  on 12.06.2020 complainant  sent one   application to the A.D.A.,     Chapra   Block   on   15.06.2020   but  nothing   positive   happened.

Therefore, the complainant sent  legal notice to the OP No.1 on 08.07.2020 with a copy to the  other Ops but the situation  did not improve.  On 10.07.2020 the complainant also  sent a letter  to the concerned  Minister Government of West Bengal  but no response  came therefrom  as well.

          Consequently,  the present case is filed. The cause of action  arose on 17.05.2019 and thereafter, day to day till the filing of this case. The complainant , therefore,  prayed for an award with a direction  to the Ops  to deliver  the said combined harvester, Rs.6,56,000/- together with interest @12% towards  margin  money, Rs.15,00,000/- towards  compensation for mental pain and agony, payment of all interest  by the Ops  and the litigation cost.

          Ops contested the case by filing W/V. The Ops denied each and every allegation of the complainant and challenged the case  as not maintainable  on the  ground that it is barred by  limitation and bad for defect of parties.

          The positive defence case of OP No.1 in brief is that the OP No.1 as a seller of combined harvester  on his request  gave estimate to the complainant . The OP No.1 also stated that he could arrange  for subsidy  for the said purchase. The other Ops then asked the OP No.1 for depositing  the marginal  amount as down payment for Rs.6,56,000/-. The complainant  stated to the OP No.1 that he could not  arrange  the said marginal  amount. So, the OP No.1 arranged  for the down  payment  and told the  complainant  that when the  loan would be actually  disbursed  then the complainant  would pay the amount paid by the OP No.1 with a liberty  to take the goods from him.  At that time the complainant voluntary given some post dated  cheques and declared  that he would repay the dues of OP No.1 and take delivery  of the combined harvester  as and when loan is availed  and amount is arranged. Thereafter, the loan  was sanctioned  and subsidy was obtained. OP No.1 then asked  the complainant  to pay the amount but the  complainant  stated that  his payments  are already  cleared. The OP No.1 immediately  dropped  the cheque  of the complainant  but said  cheques were  dishonoured  so, the OP NO.1 sent a lawyer  notice but the  complainant  did not accept  it. Therefore,  the OP No.1 filed  a case under the  N.I. Act  against the complainant. The complainant  did not pay the consideration money fully.  The matter was admitted  to resolve  by the OP Bank  but despite  one sitting  and assurance  by the  complainant  he did not obey  to his words.  Therefore,  the OP NO.1 claimed  that the case is liable to be dismissed in limine.

 Both the OP No.2&3 also filed W/V  denying  all                    the   allegations.   The    OP  No.2 & 3   challenged   the  case   as   not maintainable  on the ground that it is barred by limitation and bad for defect of parties.  The positive  defence case of OP No.2&3 is that the complainant  Sahidul Sekh approached to the bank official  (OP No.2&3) for Agriculture combined harvester  he contacted  with OP No.1 M/S Father Tractor  as they are living in the same locality. The complainant  personally  collected and accepted  the quotation  of combined harvester  and OP No.2 Chief Manager  of the Bank , Krishnagar  Branch advanced  co-operation  as per the banking norms. The OP No.2 also handed over  the said  order for combined  harvester  with bankers cheque  and handed over  the same to Sahidul Sekh  with a direction to OP No.1  M/s Father Tractor . There is no deficiency in service on the part of the OP NO.2. OP No.3 acted  no role  in the episode  of combined harvester  matter. The OP No.2&3 were  made  party to create pressure  and harass the bank official. The OP NO.2&3 claimed that  the case is liable to be dismissed  with cost.

The conflicting  pleadings of all the  parties  and the points of law involved  in the matter demands for ascertainment  of the following issues for proper adjudication of the case.

Points for Determination

Point No.1.

Whether the  case is maintainable  in its present form and prayer.

Point No.2.

Whether the complainant  is entitled to get the relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

All the Ops challenged the case as not maintainable  on the ground that the case is bad for defect of parties  and barred by limitation.

After  perusing  entire  case record it transpires  that the complainant  categorically  stated in the  complaint  that he intended  to purchase  a combined harvester for cultivation  in order to have an earning  source to maintain his livelihood.

None of the Ops could refute the said averment  that the said purchase of combined harvester  was for personal purpose.

The complainant further stated that the cause of action for the present case arose on 17.05.2019 which is the date of issuance  of banker cheques  in favour of the OP NO.1.  The present case is filed on 10.08.2020 , so  it is well within the limitation period.  The Ops  could not advance  any argument  or show any document  to establish that the present case is barred by limitation.

The case record  also further discloses that the parties  reside within the  territorial jurisdiction  of this Commission. Accordingly, the case is considered  as not barred by any provisions of law. It is, therefore,  held that the  case is maintainable  in its present form and prayer.

Point no.1 is thus answered in affirmative  and goes in favour of the complainant. 

Point No.2&3.

Both the points are very  closely  interlinked with each other and as such  these are taken up together for brevity and convenience of discussion.

The complainant claimed that despite issuance of banker’s cheque by the  OP NO.2 bank the  OP No.1 M/S Father Tractor did not hand over  the said combined harvester to the complainant.

The OP No.1 defended  the case mainly  on the point that he advanced the marginal  money of Rs.6,56,000/- but the complainant  issued two cheques  which were subsequently dishonoured and a case under the N.I Act  has been filed which is sub-judice .

The complainant  in order to  substantiate  the case proved the  following documents:-

Annexure-1 is the  copy of savings  bank account  in the name of the complainant  Sahidul Sekh which shows  that a banker cheque  was issued  on 17.05.2019 for Rs.25,56,000/- and the same was deposited  from the account of the complainant  after it is credited.

Annexure-2 is the  letter issued by bank  of Baroda  dated 17.05.2019 to OP No.1, M/S Father Tractor through which it is informed  that one banker cheque  bearing no.132612 dated 17.05.2019 for Rs.25,56,000/- was enclosed in favour of the OP No.1 towards  the cost of combined harvester.

Annexure-3 is the  said copy of banker cheques  for Rs.25,56,000/-.

Annexure-4 is the  statement  of account for the period 14.09.2019 to 14.03.2026 in the name of the complainant  Sahidul Sekh shows that loan taken  by him and the loan was recovered  against that amount  from time to time.

Annexure-5 is the  another statement account  in the name of the complainant  Sahidul Sekh showing recovery  of loan on different dates.

Annexure-6 is the  letter submitted  by the complainant to the OP No.2 bank dated 27.05.2020 through which the complainant  requested to  the OP No.2 bank  to take necessary  steps  for delivery of the said  combined harvester.

Annexure-7 is the  letter submitted  by the complainant  to the Assistant Director of Agriculture, Chapra Block, Nadia dated 12.06.2020 through  which the  complainant  raised his grievance  that despite  payment of Rs.25,56,000/-, he did not receive  the said  Tractor.

Annexure-8 is the  Advocate’s letter  issued by Makbul Rahaman  dated 07.07.2020 to the  OP NO.1 along with postal receipt .

Annexure-9 is the  letter by the complainant to the  Agriculture Minister,  Government of West Bengal along with  Postal Receipt .

After perusing the  entire  case record and the documents  it is found that the OP Bank issued a banker cheques for  Rs.25,56,000/- in favour of the  OP No.1.  So, the contention of the complainant  that price of the Tractor is  duly  paid to the OP No.1 stands well established.

 But the OP No.1 claimed that the initial  money  was paid by the OP No.1 on the request  of the complainant  but the complainant  issued two cheques  which were  dishonoured  against which criminal  case under  the N.I Act has been filed.  The OP No.1  further contended  that the complainant  suppressed  the said fact.  They are ready to  hand over the Tractor after  getting the  said money  and  the complainant  is at liberty to take back  the said Tractor after payment of their money. Since  he has not paid the consideration money , so he is not a consumer.

The argument of the Ld. Defence Counsel is not acceptable  in as much as   the  loan  was  sanctioned in the name of the complainant and the statement of account discloses that the  complainant  has repaid  the loan to some extent  from time to time , so it is not legal  and proper to hold that the complainant is not a consumer  since he has not paid allegedly the consideration money.

Ld. Advocate for the complainant  argued that  despite  sanctioning of loan  by the Government  the complainant  has not received  the said tractor. Since the  complainant has not received  the said vehicle , so he is not liable  to pay the interest  to the OP Bank but the bank  has deducted  the interest.

The argument  has reasonable force  in as much as  the bank  is only providing  the loan but the Government  is providing  the subsidy. The main point of dispute  is that the OP No.1 bank  claimed to have  deposited  the marginal money.

It is well established  that the OP bank  already issued  the banker’s cheques  and the complainant handed over  the said cheque  to the OP No.1. Annexure-6 is the  letter whereby  the complainant  already informed  to the OP bank   that he  had handed over  the said banker’s cheques for Rs.25,56,000/- dated 17.05.2019 on the   same day of his getting it to the  OP No.1 M/S Father Tractor. The OP NO.1 could not  adduce  any evidence  or document  that he did not receive the said cheque.

The complainant further proved  the letter being annexure-2  dated 17.05.2019 issued  by the Chief Manager, Bank of Baroda to M/S Father Tractor stating inter-alia  that “We enclose herewith banker cheques bearing no. 132611 dated 17.05.2019 for Rs.25,56,000/- in favour of you towards  the cost of combined harvester  tractor (Tractor Model  CF 8055D). Kindly send the delivery challan cash memo  and other relevant  papers as the car  loan is financed from our branch”.

The OP NO.1 could not prove  any document to discard  the said document or assign  any reason  as to why the  said vehicle  was not delivered to the complainant.

The OP NO.1 in course  of argument  filed two letters  showing that  the OP No.1 claimed  to have deposited  Rs.6,56,000/- in favour of the complainant  to the OP No.2 bank.  The letter dated 10.05.2019 allegedly  singed  by the complainant  to the OP  No.1 discloses  that the complainant  allegedly requested  the OP No.1 for depositing  Rs.6,56,000/- to his account in  Bank of Baroda for getting  loan and subsidy.

Ld. Advocate  for the complainant  raised strong objection against the said two documents  since these documents were  filed  at very  belated  stage.

The argument has reasonable force  in as much as  the OP No.1 filed  the said two letters  along with  one cheque allegedly  issued by the complainant  dated 14.09.2020 bearing no.5000003 drawn  on Bank of Baroda, after the trial is over and in course  of argument.  So, the complainant  has been deprived  of getting  the opportunity  to counter  the said documents  by cross-examining the OP No.1 and adducing  any further evidence  against the  said defence plea.

After  close scrutiny  of the said cheque,  it is evident  that the date is written  in the said cheque  as 14.09.2020.

After perusing  the pleading of the parties  it transpires  that the delivery  order was issued by the OP No.2 Bank through payment  of cheque on 17.05.2019. As per the  pleading of the OP No.1 the complainant issued post dated cheque  prior to the delivery order , so the said cheque ought to have been dated prior  to 17.05.2019 but in the said cheque  the date is written  as 14.09.2020. The signature in the said cheque  and the signature in the two letters  and declaration  appears  to have no consistency.  In the signature of the letter  there is a straight  line above  the name. In the signature  of the cheque there is no such  straight line. Had the said document  and the cheque  been filed  during trial the complainant  could have taken  legal  steps  to verify  the signature. The said argument has reasonable force  and as such  the said documents  do not help  the OP No.1 to substantiate  his defence case.

Be that as it may , it is important  to consider, that   if the said cheque  is dishonoured  then there is  penal provisions  in the N.I Act for dishonour  of a cheque. But since there is  no such order  of any criminal  court or any superior  court, so there is no bar to  try and dispose  of the present  case after completion  of the trial.

Since the OP No.2 bank  has  already  issued the bankers  cheque in favour of the OP No.1 and the complainant has already deposited the same  to the OP No.1 so he is entitled to  get the combined harvester . If any amount of money  is actually  due and outstanding  from the complainant to the OP No.1 he has right           to  recover it  as  per   the  provisions  of  law  but  once  the  bank  has directed  to deliver  the vehicle and the loan is sanctioned  as well as the  subsidy  is approved , so the complainant should be given the said Tractor  by the OP No.1.

The OP No.2 also  did not take proper steps despite  issuance of   a letter being annexure-2 by which the OP No.1 is instructed  to send the delivery  challan, cash memo  and other relevant  papers but they did not comply  the said instruction  of the OP No.2 bank.  This  inaction on the part of both OP No.1&2 tantamounts  to deficiency in service  and as such  OP No.2 bank also cannot escape  their liability  since the liability is  jointly and severally.

Having  considered  the pleadings of the parties  it is also held  that the OP No.1  is at liberty  to recover  the said sum of Rs.6,56,000/- as per  the provisions  of law if he is actually entitled  to get the same.

In the back drop of the aforesaid  discussion  and observation  made hereinabove the commission is of the view  that the  OPs have acted  in a manner  which caused deficiency in service  and harassment  to the complainant  with mental pain and agony for which he is entitled to get compensation.

Accordingly, point no.2&3 are answered in affirmative and go in favour of the complainant.

In the result the complaint case succeeds  on contest  against the  OPs.

Hence,

                             It is

Ordered

that the complaint case no.CC/43/2020 be and the same is allowed on contest against OP No.1,2&3 with cost of Rs.10,000/- (Rupees ten thousand). The complainant do get an award  with a direction to  the OP No.1 to hand over the combined harvester on the basis  of the letter issued by the OP No.1 bank being No.BOB/KRINAD/06-14084 dated 17.05.2019 and  Rs.2,00,000/- (Rupees two lakh) towards compensation  for harassment  for mental pain and agony. The OPs are jointly and severally  liable  to execute  the award. All the OP No.1,2&3 are directed to  pay the said sum of Rs.2,10,000/- (Rupees two lakh ten thousand) and deliver  the combined  harvester  to the complainant within 30 days from the date of passing the award failing which  the entire award money shall carry an interest  @8% p.a from the date of passing the final order till the date of its realisation.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.    

Dictated & corrected by me

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                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                               ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                        (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

  ........................................                                                 

          MEMBER                                                                

( SHRI NIROD  BARAN   ROY  CHOWDHURY)