CC Filed on 05.12.2008<br /> Disposed on 17.07.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 17th day of July 2009<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 104/2008<br /> <br /> Between:<br /> <br /> <br /> Sri. N.C. Aswathanarayanasetty,<br /> General Merchant and Contractor,<br /> Brahmin Street,<br /> Kolar – 563 101.<br /> <br /> <br /> (By Advocate Sri. A.V. Ananda and Others ) <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> V/S<br /> <br /> <br /> M/s. Karnataka State Financial Corporation,<br /> Kolar Branch, M.B. Road,<br /> Near KSRTC Bus Stand,<br /> Kolar – 563 101.<br /> Represented by its Branch Manager.<br /> <br /> <br /> (By Advocate Sri. B.N. Vasudeva Murthy and Others) <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Party<br /> <br /> ORDERS<br /> <br /> This is a complaint under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to return all the machineries described in the schedule to the complainant and to pay damages of Rs.22,000/- with costs, interest, etc.,<br /> The schedule in the complaint describes the machineries as follows:<br /> 1. One precision horizontal mixer with 5 HP motor ABB make.<br /> 2. One premier pulversier with motor.<br /> 3. One 300 KG capacity Blue Bird India Make weighing scale.<br /> 4. One Everest bag closing machine.<br /> 5. One 5 HP ABB make motor.<br /> 6. One Weighing scale (Small)<br /> 7. One Starter and switch fuses.<br /> <br /> 2. The material facts of the case may be stated as follows:<br /> That the complainant purchased M/s. Gem Feeds situated at Sy. No. 341 of Bellur Village, Narasapur Hobli, Kolar Taluk from OP for Rs.5,01,000/- on 16.04.1998 and the said premises was delivered to complainant on 15.05.1998 with machineries noted in the schedule to the complaint. The complainant had paid down payment of Rs.1,50,000/- and the remaining Rs.3,51,000/- was treated as loan repayable by complainant to OP, in 12 equal quarterly instalments of Rs.29,250/- each commencing from 10.06.1998 with interest at 17.5% p.a. and enhanced interest at the rate of 2.5% p.a. in case of default for repayment.<br /> <br /> The complainant has alleged that he paid in all Rs.1,04,576/- till December 2000 and he further alleged that he sustained loss for various reasons and he intended to surrender the unit to OP. Accordingly he wrote a letter to OP on 29.12.2000 to get back the unit. Thereafter the OP by letter dated 05.02.2001 ordered to take possession of unit under sec - 29 of SFCs Act 1951 for recovery of Rs.4,12,760/- due as on 10.12.2000 with further interest, cost, etc. On that day itself i.e. 05.02.2001 the premises was taken over by OP under a mahazar in presence of witnesses. OP issued a letter dated 07.02.2001 under RPAD to complainant intimating the missing plant and machineries and asked him to return the same. In the schedule to the said mahazar the plant and machinery seized are shown as follows:<br /> <br /> 1. One precision horizontal mixer without motor.<br /> 2. One premier pulversier with motor.<br /> <br /> The plant and machineries seized on 05.02.2001 were put to sale and one Sri. Azeemuddin of Davanagere issued offer letter dated 08.03.2002 for Rs.8,000/- for purchase of the said machineries, which were in scraped condition. The OP by letter dated 18.03.2002 intimated the complainant that in the auction on 08.03.2002 the machineries were fetched maximum price of Rs.8,000/- and asked him to secure any other intending purchaser within 10 days who was willing to offer more value. By letter dated 26.03.2002 the complainant informed the OP that one Anil Kumar was willing to purchase the machineries for Rs.9,000/-. The willingness of Anil Kumar dated 26.03.2002 and also the letter of complainant dated 26.03.2002 were actually given to OP on 27.03.2002. However the OP by proceedings dated 26.03.2002 accepted the offer of Sri. Azeemuddin of Davanagere for Rs.8,000/- and intimated the said purchaser to pay the sale price within 7 days and on failure to pay it within the stipulated period the EMD would be forfeited. The said purchaser Sri. Azeemuddin of Davanagere paid Rs.8,000/- on 31.03.2002 and the said amount is credited to the loan account of complainant.<br /> <br /> The complainant was not intimated the action taken regarding his letter dated 26.03.2002 offering Rs.9,000/- for the price of machineries. Thereafter complainant sent another letter dated 29.12.2002 under registered post to OP to intimate the action taken on the offer of Anil Kumar for Rs.9,000/-. It appears this letter was also not replied. The complainant claims that subsequently he wrote several letters and no reply was given. Thereafter he wrote letters dated 02.11.2007 and 17.11.2007 asking the OP to intimate the fact whether the machineries were sold or not and to intimate the fate of offer made by Anil Kumar. In response to these letters dated 02.11.2007 and 17.11.2007 the OP intimated that inspite of several attempts for sale of machineries by publishing it in newspapers, no one came forward to offer any bid and asked the complainant to bring some one who was intending to purchase the machineries. This letter implies that the machineries were not yet sold. The complainant by letter dated 26.12.2007 expressed his grievance that though best offer was made by Anil Kumar for Rs.9,000/- about 6 years back the machineries were not sold and the same were kept idle. He also asked the OP to intimate the present condition of the machineries under the said letter. Thereafter he got issued legal notice dated 27.02.2008 and filed the present complaint. <br /> <br /> 3. OP contended that only the two items of machineries shown in the mahazar dated 05.02.2001 were seized and taken possession from the premises and that the said machineries were sold for Rs.8,000/- to Sri. Azeemuddin of Davanagere as per the sale proceedings dated 26.03.2002 and the amount realized was credited to the account of complainant. They contended that in response to the letter dated 18.03.2002 issued to complainant to bring better offer than the offer made by Sri. Azeemuddin of Davanagere, the complainant failed to bring any better offer and he made the better offer only through letter dated 29.12.2002 by one Anil Kumar for Rs.9,000/-. Therefore they contended that there was no deficiency in service. The OP has contended that the letter dated 05.12.2007 intimating that the machineries were not yet sold for want of purchasers was issued by oversight and inadvertence and in fact the machineries available were sold on 08.03.2002 which was confirmed by proceedings dated 26.03.2002.<br /> <br /> 4. The complainant and one Ravi Shankar on behalf of OP filed affidavits in support of respective contentions. The parties also filed certain documents. We heard the Learned Counsel for the parties.<br /> <br /> 5. From the rival contentions the following points arise for our consideration.<br /> <br /> 1. Which were the machineries taken to the possession of complainant<br /> on 05.02.2001.<br /> <br /> 2. Whether there is deficiency in service by OP in not accepting the <br /> offer of Anil Kumar for Rs.9,000/-.<br /> <br /> 2. To what order?<br /> <br /> <br /> 6. After considering the records and submissions of the parties our findings on the above point as follows:<br /> Point No.1: The complainant had taken delivery of seven items of machineries described in the schedule to the complainant on 15.05.1998 when he took the premises of M/s. Gem Feeds from OP. That fact is not in dispute. The OP has contended that on 05.02.2001 when the premises and machineries were taken to the possession of OP there were only two items of machineries as shown in the mahazar dated 05.02.2001. The OP had also issued letter dated 07.02.2001 under RPAD to complainant that only two items were found as shown in the mahazar and the remaining items were not found in the premises and to produce those missing items. The complainant himself had stated in his request letter dated 29.12.2000 that there was theft in the premises and he sustained huge loss and therefore he requested the OP to take back the industrial unit M/s. Gem Feeds. It can be seen that thereafter the OP formally passed the order dated 05.02.2001 taking over the unit M/s. Gem Feeds and on the same day a mahazar was drawn, in which only two items of machineries were shown to be found in the premises. The OP has also sold the land and building of the premises of M/s. Gem Feeds standing in the name of complainant for Rs.3,01,000/- after notice to the complainant. From the records the value of plant and machineries on the date of purchase of unit by the complainant, cannot be ascertained. The complainant has not produced any evidence to establish the value of machineries. The complainant had brought better offer of Anil Kumar for Rs.9,000/- when it was intimated that the machineries were intended to be sold for Rs.8,000/-. Considering the above facts and circumstances we hold that only the two items described in the mahazar dated 05.02.2001 were taken to the possession of OP, but not the entire plant and machineries stated in the complaint. Hence point No.1 is held accordingly.<br /> <br /> Point No.2: The notice dated 18.03.2002 issued to complainant states that in the auction proceedings held on 08.03.2002 the machineries belonging to complainant were sold for Rs.8,000/- and intimated the complainant that he could bring any one who was willing to pay more, within 10 days from the date of that letter. Therefore the complainant could have brought any person who was willing to purchase the machinery for the price higher than Rs.8,000/- on or before 27.03.2002. The complainant handed over letter of one Anil Kumar dated 26.03.2002 in which he expressed his willingness to purchase the machineries for Rs.9,000/-. But the OP under letter dated 26.03.2002 informed Azeemuddin of Davanagere that his bid for Rs.8,000/- offered on 08.03.2002 is accepted by the competent authority of OP and instructed him to pay the amount within one week from the date of the said letter and lift the machineries. The receipt issued to Azeemuddin of Davanagere shows that Rs.8,000/- was received on 31.03.2002 by cash. The said amount of Rs.8,000/- has been credited to the loan account of complainant on 31.03.2002 itself, as per account extract produced by OP. The OP has not produced any document to show that acceptance of the bid would be held on 26.03.2002 and the said fact was intimated to complainant. On the other hand he was informed to bring better offer within 10 days from 18.03.2002. Therefore it is clear that the better offer made by Anil Kumar on 27.03.2002 was well within the time allowed by OP and it was not considered.<br /> <br /> In the version, the OP has contended that in response to the letter dated 18.03.2002 to bring better offer within 10 days from the date of that letter, the complainant had not brought any better offer and further it is contended that better offer of Anil Kumar was intimated under letter dated 29.12.2002 long after acceptance of the bid of Azeemuddin of Davanagere on 26.03.2002. This is clearly a wrong fact alleged by the OP. The better offer letter of Anil Kumar and the letter of complainant dated 26.03.2002 were received in the office of OP on 27.03.2002 and for having received such letters the acknowledgement was made on the copy of letter with official seal of OP. Therefore we believe that the better offer was made on 27.03.2002 by Anil Kumar and the contention of OP that no such better offer was made on that day, but it was made only under letter dated 29.12.2002 is not correct. For the above reasons we held point No. 2 in affirmative.<br /> <br /> Point No.3: During the arguments the complainant submitted that the price of even two items of machineries seized by OP is more than Rs.1.5 lakhs. Therefore he submitted that the compensation of Rs.1,50,000/- and interest, cost may be granted to him. There is no evidence to ascertain the price of two items of machinery seized by OP on 05.02.2001. In the better offer made by Anil Kumar he described the machineries as scraps and offered Rs.9,000/- towards its price. The OP has stated in its version that though there was publication of sale in news paper many times, the intending purchasers had not come and several attempts were made for the sale of the said machineries. The unit M/s. Gem Feeds was previously possessed by some other person and because of the default made in repaying the loan amount to OP, it appears the said unit was taken to the possession of OP under sec - 29 of SFCs Act 1951, before it was sold to complainant in April 1998. The complainant also stated he could not run the unit and he sustained loss and came forward to hand over the unit to OP in December 2000. The total worth of unit was estimated at Rs.5,01,000/- at the time of purchase by complainant on 16.04.1998. The land and building was sold for Rs.3.01 lakhs in September 2004 to one Saraswathamma. As already noted many of the items of machineries were not forthcoming at the time of seizure. The machineries sold were in the scraped condition as noted in the said proceedings dated 26.03.2002. The Anil Kumar had also shown in his application that the machineries in the scraped condition were intended to be purchased by him for Rs.9,000/-.<br /> <br /> Assuming that there was a sharp competition in offering the bids between Azeemuddin of Davanagere and Anil Kumar, at best it can be said that maximum price that would have been fetched for the scraped machineries would have been Rs.15,000/-, in the facts and circumstances of the case. Because of the inadvertence or negligence of OP opportunity was not offered to Anil Kumar. Therefore we hold that the loss caused to complainant may be estimated at best Rs.7,000/-. The complainant was being charged for delayed payment at 19.5% p.a. interest. Therefore we think the said amount of Rs.7,000/- with interest at 19.5% p.a. on the said amount from 01.04.2002 till the date of this order may be credited to the loan account of complainant. Point No.3 is held accordingly.<br /> <br /> 7. Hence we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is partly allowed. The OP is directed to credit a sum of Rs.7,000/- with interest at the rate of 19.5% p.a. from 01.04.2002 till the date of this order to the loan account. OP shall pay Rs.2,000/- to complainant towards the costs of this proceedings. The above said order shall be complied by OP within 30 days from the date of this order.<br /> <br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 17th day of July 2009.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br />