Date of Filing:  25.04.2013.                                                 Date of Final Order: 06.05.2014.

The case of the complainant Sri Kishore Mohan Roy is that he paid Rs.16,000/- for purchase of a ‘Shrachee Power Tiller’ from Rakhit Trading; but he was asked to take delivery of a  ‘Chanka Power Tiller’ to which he disagreed and for which he also denied to return the said paid amount and took plea with intent of not refunding the said cash. He gave account as to Rs.14,500/-and enquiry Fee Of Rs.500/- i.e. of Rs.15,000/- but did not account for the rest Rs.1,000/-which was cheated. Even further, out of that Rs.15,000/- he was paid only Rs.5,000/-and till date he was not paid the rest Rs.11,000/-. He required Rs.1,760/- to get back his Deed of Land from the Bank .He has claimed for redress by an order of this Forum by detecting the opposite party to pay (1) Rs.11,000/-towards due payment,(2) Rs.7,000/- towards un-accounted Rs.1,000/-and interest, (3) Rs.5,000/- for mental harassment, (4) Rs.2,000/- as litigation cost besides, the required amount Rs.1,760/- for release of the Deed of Land i.e. total Rs.26,760/-. He has enclosed Xerox copies of (i) Receipt of Rs.500/-of M/S. Rakshit Trading Co. Dated 16-7-2011, (ii) Receipt of Rs.500/-of Bikash Bank Dated 22-6-2011 as to Enqiry Fee/S & A Charge, (iii) Application of Kishore Mohan Roy Dated 21^st Ju-2012 to The C.A.O, Cooch Behar Co-op-ARD, Cooch Behar.

The complainant has enclosed one IPO of Rs. 100/- and an Affidavit before Notary .

Based on the petition of complaint DF Case No. 33 of 2013 dated 25-04-2013 has been registered. On 06-05-2013 after hearing the Ld. Advocate Mr. Himadri Sekhar Roy and the materials on record, the complaint was admitted by this Forum, fixing 24-05-2013 for S/R, appearance with W/V.

After so many dates, on 19-08-2013 the Notice issued to the O.P, received back with endorsement “Not Known” from the postal department. Of course, the complainant was absent on so many dates and without proper and adequate steps, in spite of directions to take steps. Further Notice was issued on 21-08-2013 and till 07-10-2013 no S/R is received. However, the A/D card could be traced out from office, reflecting receive of the Notice by one Smt. Putul Das, without date; but none appeared. Hence, the case against the O.P was taken up in Ex-parte on 12-11-2013, by an order. On the same date by a petition of the complainant, the Manager, C.A.O/ C.E.O, Supervisor/Authorized Officer of Cooch Behar Co-Operative Agricultural & Rural Development Bank Ltd. (Bikash Bank) Kshudiram Sarani, P.S. Kotwali was impleaded as O.P.No.2; but nothing was found, assailed against the said impleaded O.P.No.2 in the amended complaint. After repeated directions of the Forum, on 24-01-2014 the complainant took proper steps and Notice upon the O.P.No.2 was issued fixing 13-02-2014 for S/R, appearance of the O.P No.2 with W/V. On that date Ld. Advocate Mr. Surajit Datta appeared by filing a petition; but without ‘Agentnama’ and with a prayer for time to file ‘Agentnama’ with written version for the O.P. No.2. Accordingly, 06-03-2014 was fixed for the purpose. Of course, on that date the ‘Agentnama’, along with a written version of the Chief Manager, Cooch Behar Co-op. A.R.D.B. Ltd, Cooch Behar dated 5-3-2014, on a Letter Head of the O.P. No.2 were filed with a Xerox copy of the agreement. 18-03-2014 was fixed for evidence of both sides. On that date Mr. Samir Kumar Banerjee, Chief Manager, Cooch Behar Co-Operative Agricultural & Rural Development Bank Ltd. filed his evidence in the form of statement, on affidavit, through the Assistant Manager Mr. Sujit Kumar Datta who was directed to file petition as to filing the same as Evidence as to reaching the same on record; but he did not give ear to it. On the other hand, the complainant failed to file his evidence since 14-01-2014 and again filed a petition for time to file the same which was allowed on cost of Rs.100/- fixing 04-04-2014 for evidence on affidavit and filing his relied on documents incorporating therein for marking those as Exhibit. The O.P.No.2 was also directed to file his relied on original documents for marking Exhibit.

On 04-04-2014 the O.P.No.2 was absent without step and none responded to or appeared for him. The Ld. Adv. for the Complainant filed a petition for time, contending that he would not file evidence but to file his written argument which was allowed and 11-04-2014 was fixed for. On that date the Ld. Adv. for the complainant by appearing prayed for time to file written argument on the ground of his personal illness. None appeared for the O.Ps and hence, 28-04-2014 was fixed for written arguments i/d to fix a date for passing Final Order. On that date neither of the parties in litigation appeared and/or has taken any step. None also responded to on repeated calls for the parties in contest. Accordingly, considering all aspects, nature & gravity of the case, in terms of the provisions of the C.P. Regulations, 2005, 06-05-2014 was fixed for the Final Order with liberty to file their written arguments, if any, in the meantime.     

For the O.P. No.2 the Chief Manager, Cooch Behar Co-op. A.R.D.B. Ltd. in his written version dated 15-03-2014 in the form of letter addressed to the President of this Forum stated that Kishore Mohan Roy applied for a loan for purchasing a power tiller on 22-06-2011 and deposited Rs.500/- as portion of enquiry fee. Loan of Rs.1,13,000/- was sanctioned but subsequently he was reluctant to draw the loan. After about one year he applied for return of the documents of land. He was charged Rs.1,760/- for balance of enquiry fees but due to non-payment of the said amount the documents are still lying with them. He has denied all other allegations. He enclosed one page unsigned Xerox copy of agreement. In his so called evidence he has repeated the same matter as in his written version and only what he has added, is that those are to the best of his knowledge. He has not find any document in respect of the loan and the transaction.

On the other hand the Complainant without submitting his evidence and written argument might have banked upon the three documents marked Exhibit 1 to 3 as on today.                                                                                                    

Accordingly, precluding the latches and lacunae in the proceedings and lack of proper and adequate documentary evidence of both the parties in contest today (06-05-2014) the case has been taken up for passing the Final Order to avoid further unnecessary delay in the interest of equity, conscience, balance of convenience and inconvenience and natural justice with regard to Rule of Law.

                                        ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the complainant is a ‘consumer’ of the O.Ps. If so, how?
2. What are the consumer disputes?
3. Whether this Forum has territorial/pecuniary jurisdiction to entertain & try the instant case?
4. Whether the O.Ps contributed negligence/deficiency in service to the complainant?  If so, who and to what extent?
5. Whether they are liable to compensate the complainant?
6. Whether the complainant is entitled to get relief(s) as prayed for? If so, from whom and to what extent?
7. Whether the complainant has any liability to compensate & if so, to whom and to what extent?

                                         DECISSION  WITH  REASONS

Point No.1.  Whether the complainant is a ‘consumer’ of the O.Ps. If so, how?

From the discussion herein before, it is crystal clear that the complainant that he had paid (1) Rs.14,500/- to the M/S. Rakshit Trading Co. on 16-07-2011 vide-Exbt-1(Xerox copy of Money Receipt), (2) Rs.500/- to Cooch Behar Co-operative Agriculture & Rural Development Bank Ltd (Bikash Bank), Cooch Behar vide Exbt-2( Receipt No.A42127 Dated 22-06-2011) and (3) Application of Kishore Mohan Roy, submitted to the C.A.O, Cooch Behar Co-Operative ARD, Cooch Behar, on 21-06-2012 for getting return of his Deed of Land & other documents from the ‘Bikash Bank’,  Exbt-3. It may also reasonably presumed that the complainant is a small farmer and he has availed the loan from the bank to purchase the Tiller for cultivation of his own land as nothing has been raised and/or disputed by the O.Ps on this point. Hence, we have no hesitation to decide this point in favour of the complainant. The complainant in the instant case is a consumer in terms of the Consumer Protection Act, 1986.

Point No.2.  What are the consumer disputes?

The consumer dispute so far appears from the record is that the complainant had paid the amounts discussed herein before; but there is no proof that he paid Rs. 16,000/- and the allegations against the O.P.No.1 in respect of cheating by denying to have received the amount could not be proved by the complainant. In respect of the Deed of Land other papers, admittedly lying with the O.P.No.2 does not require to discuss any more when it has been admitted by the concerned O.P i.e. O.P.No.2.

Point No.3.  Whether this Forum has territorial/pecuniary jurisdiction to entertain & try the instant case?

Both the opposite parties are residing and/or carrying their business within the District Cooch Behar and the complaint valued at Rs.26,760/- i.e. within the capacity of Rs.20,00,000/-. Hence, this Forum has got both territorial as well as pecuniary jurisdiction to entertain & try the instant case.

Point No.4.  Whether the O.Ps contributed negligence/deficiency in service to the complainant?  If so, who and to what extent?

It is  transparent from the materials on record that the O.P. No.1 i.e. M/S Rakshit Trading Co., (Ex-parte) has not repaid the balance amount at least Rs.10,000/- though the claim of the Complainant is Rs.11,000/- which can reasonably be presume in Ex-parte as inspite of receipt of the Notice he has neither turned up before this Forum nor has taken any step to defend his case against the allegations over the Consumer Disputes of the Complainant,  since 16-07-2011 the said amount has been hold by him. It appears that Mr. Himadri Shekhar Roy, Ld. Advocate though appeared at times before the Forum but negligently has taken steps, reason best known to the Complainant and his Ld. Advocate. It appears that practically the Complainant by filing his attendance in writing had been appearing before the Forum on some dates; but on being asked he failed to satisfy the Forum in respect of his claim of Rs.16,000/- by document beyond the two money receipts of Rs.14,500/- and Rs.500/- i.e. Rs.15,000/-. As such his claim of Rs.16,000/- could not be substantiated by substantive evidence. One cannot escape from his negligence /deficiency in service by staying away inspite of appearance through Ld. Advocate. Accordingly, in our considered view the O.P. No.1 contributed immense negligence, resulting to deficiency in service to the Complainant and he should be solely liable for compensation to the Complainant as well as to the Forum for such violation of the orders passed on different dates during the proceedings of the instant case.

As to O.P. No.2, on appreciation of the documents filed and the manner in which the case was conducted by him/Ld. Advocate it speaks of dereliction on his part and dragging the proceedings. May whatever it be, it is crystal clear that he has sanctioned the loan of Rs.1,13,000/- against security deposit of deed of land with related documents. And the Complainant by not drawing the said sanctioned loan has violated the terms of condition of loan. As such the scrutiny charge due with Complainant payable to the O.P. No.2 cannot be said to the unjustified. At the event of payment of the said amount of Rs.1,760/- to the O.P. No.2 by the Complainant his act liberty to get his document back as contended in the written version and evidence of the O.P. No.2. The claim of Complainant, the said amount of Rs.1,760/- also cannot be accepted as a just claim from the O.Ps. On the ground that it was the ancillary charges in respect of loan. Thus we are not inclined to hold the O.P. No.2 (Bikash Bank) liable for compensation for deficiency in service or the like. Accordingly, he should be immune from the charges.

However, we have no hesitation to hold the O.P. No.1 i.e. M/s. Rakshit Trading Co. liable for negligence and deficiency in service towards the Complainant and for which he should be penalized by awarding just and adequate compensation by the O.P. No.1 by whatever title and/or locus-standi. It is surprising that inspite of receipt of the Notice by one Smt. Putul Das, the O.P. No.1 did not turned up, presumably for M/s. Rakshit Trading Co. she received the Notice wherein it appears from the A/D Card that the proprietor of the O.P. No.1 is Sri Binoy Ch. Rakshit of Dinhata where the Notice could be served through the postal department, as has been received by Smt. Putul Das.        

Point No.5.  Whether they are liable to compensate the complainant?

From the aforesaid discussion it is crystal clear that only the O.P. No.1 i.e. M/s. Rakshit Trading Co. is solely liable to pay reasonable compensation to the Complainant.

Point No.6.  Whether the complainant is entitled to get relief(s) as prayed for? If so, from whom and to what extent?

Accordingly, we are of considered view that the Complainant is entitled to get relief in part and that also only from the O.P. No.1 and none else.

Point No.7.  Whether the complainant has any liability to compensate & if so, to whom and to what extent?

In the perspective of discussion and decisions herein before in Point No.1 to 6 we are of the view that the Complainant is liable to compensate to a reasonable extent to the O.P. No.2 for unnecessary adding him as so called necessary party. Simultaneously, he is also liable for compensation payable to the Consumer Welfare Fund to the reasonable extent as neither the Consumer protection Act, 1986 which is Consumer friendly and meant for protection of the Consumer and the Forums are to implement the act, it is not the fashionable Govt. concern to aspire relief(s) beyond the permissible limit and violating the orders of the Forum and dragging the proceedings for once inaction, over action and whims and thereby causing unnecessary expenses of the Govt. by issuing such Notice and misuse the variable time and energy of the Forum. If it is allowed to continue in the name of the Consumer Protection, the purpose and objectives of the act will be frustrated. As such, a reasonable cost should be imposed upon the Complainant to pay by depositing in the Consumer Welfare Fund, W.B. as a token of such penal provision as contained in the Act, Rules and Regulations therein.

ORDER

Therefore, it is ordered that the complaint be and the same succeeds in part, on contest and with cost of Rs.1,000/- payable by the O.P. No.1 i.e. M/s. Rakshit Trading Co. Proprietor Sri Binoy Ch. Rakshit to the tune of Rs.10,000/- (as the due capital amount) with 10% interest from the date of receipt of the admitted amount of Rs.15,000/- from July, 2011 till the payment is made in full to the Complainant i.e. Sri Kishore Mohan Roy. Besides, in respect of mental agony and harassment, Rs.3,000/- is awarded to the complainant payable by the aforesaid O.P.

Simultaneously, the complainant shall pay Rs.500/- to the O.P. No.2 i.e. Manager, C.A.O./C.E.O, Supervisor/Authorized  Officer, Cooch Behar  Co-operative Agriculture & Rural Development Bank Ltd. i.e. (Bikash Bank) and Rs.1,000/- to the Consumer Welfare Fund, W.B. The payments shall be made within 60 days i.e. by 05-07-2014, in default to pay @ Rs.20/- for each day’s delay by the concerned defaulting party.

Let plain copy of this order be made available and be supplied, free of cost, to the parties on contest by hand/ by registered post with A/D forthwith as per rules, for information and necessary action.