Order by

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the Opposite Parties are registered company and is a finance company and is registered with Reserve Bank of India and it used to collect money and pay the same with interest. The complainant alleges that he used to deposit the amount with Opposite Parties in two books bearing account No.945 and 1604 issued by the Opposite Parties. Accordingly, the complainant deposited in his account No. 945 a sum of Rs.49,000/- and Rs.52,000/- on 08.01.2008 and 31.01.2008 respectively and the deposited amount was payable by the Opposite Parties alongwith interest @ 12% per annum. The detail of outstanding amount woards the Opposite Parties as below:-

Account No. 945

  Account No. 1604

The complainant visited the office of Opposite Parties and made request to make the payment from his account but the Opposite Parties refused to make the payment illegally, unjustly both in law and equity. In this way, the complainant is entitled to recover Rs.1,73,913/- as detailed above in both the accounts. Due to the aforesaid illegal and unwarranted acts of the Opposite Parties, the complainant has suffered mental tension and agony.   The complainant made so many requests to the Opposite Parties to make the payment of his accounts, but the Opposite Parties did not pay any heed to the request of the complainant  and hence, alleging deficiency in service on the part of the Opposite Parties, the complainant has filed the instant complaint.  Vide instant complaint, the complainant has sought the following reliefs.

1. To pay the amount of Rs.1,93,913/- and also pay  Rs. 25,000/- on account of compensation for causing him mental tension and harassment or any other relief which this Commission  may deem fit and proper may be awarded to the complainant.          

Hence, the complainant  has filed the complaint for the redressal of his grievance .

2.       Upon notice, Opposite Parties appeared and contested the complaint by filing  written  reply taking preliminary objections therein inter alia that the complaint is not maintainable.  Actually, the complainant came to the office of Opposite Parties on 16.09.2018 and after mutual settlement and adjustment the sum of Rs.73,682/- was calculated to be due to be paid to the complainant and after mutual settlement and adjustment the sum of Rs.73,682/- was calculated to be due to be paid to the complainant and complainant agreed to receive the said amount out of which Rs.50,000/- in cash was paid to the complainant by the Opposite Parties and the complainant executed payment voucher dated 16.09.2018 to that effect duly signed by him. The Opposite Parties are maintaining the regular account record in the ordinary course of its business and attested and true copies reflecting the transactions between the complainant and the Opposite Parties are attached. Since the complainant did not bring his passbook on 16.09.2018, so the necessary entries could not be made in the passbook and now taking the undue advantage and despite having issuance of payment voucher, the complainant has filed the present complaint without any legal right. It is further submitted that Opposite Parties made commitment to pay remaining balance amount  of Rs.23,682/- to the complainant on presentation of said passbook, but he did not present said  passbook  and  it is only amount of Rs.23,682/- which is payable to the complainant by the Opposite Parties and hence, there is no deficiency in service on the part of the Opposite Parties.  On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In order to prove his case, complainant tendered into evidence  his affidavit Ex.C1 alongwith copies of passbook Ex.C2 and Ex.C3, copy of deposit receipt Ex.C4 and Ex.C5 and  closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh.Ravinder Singh Ex.OPs1, copy of statement Ex.OPs2, copy of payment voucher Ex.Ops3, copy of statement Ex.Ops4 and closed the evidence on behalf of the Opposite Parties.

5.       We have heard ld.counsel for the Parties  and also gone through the evidence produced on record. 

6.       Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. On merits, it is contended that the complainant used to deposit the amount with Opposite Parties in two books bearing account No.945 and 1604 issued by the Opposite Parties. Accordingly, the complainant deposited in his account No. 945 a sum of Rs.49,000/- and Rs.52,000/- on 08.01.2008 and 31.01.2008 respectively and the deposited amount was payable by the Opposite Parties alongwith interest @ 12% per annum. The detail of outstanding amount woards the Opposite Parties as below:-

Account No. 945

  Account No. 1604

The case of the complainant is that he visited the office of Opposite Parties and made request to make the payment from his account but the Opposite Parties refused to make the payment and in  this way, the complainant is entitled to recover Rs.1,73,913/- as detailed above in both the accounts. Due to the aforesaid illegal and unwarranted acts of the Opposite Parties, the complainant has suffered mental tension and agony. Thereafter, the complainant made so many requests to the Opposite Parties to make the payment of his accounts, but the Opposite Parties did not pay any heed to the request of the complainant

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the complainant on the ground that the complainant came to the office of Opposite Parties on 16.09.2018 and after mutual settlement and adjustment the sum of Rs.73,682/- was calculated to be due to be paid to the complainant and after mutual settlement and adjustment the sum of Rs.73,682/- was calculated to be due to be paid to the complainant and complainant agreed to receive the said amount out of which Rs.50,000/- in cash was paid to the complainant by the Opposite Parties and the complainant executed payment voucher dated 16.09.2018 to that effect duly signed by him. The Opposite Parties are maintaining the regular account record in the ordinary course of its business and attested and true copies reflecting the transactions between the complainant and the Opposite Parties are attached. Since the complainant did not bring his passbook on 16.09.2018, so the necessary entries could not be made in the passbook and now taking the undue advantage and despite having issuance of payment voucher, the complainant has filed the present complaint without any legal right. It is further contended that Opposite Parties made commitment to pay remaining balance amount  of Rs.23,682/- to the complainant on presentation of said passbook, but he did not present said  passbook  and  it is only amount of Rs.23,682/- which is payable to the complainant by the Opposite Parties and hence, there is no deficiency in service on the part of the Opposite Parties.

8.       Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of Opposite Parties No.2 and 3  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.” 9

Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

9.       For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, now to come to the merits of the case.

10.     First of all, it is not the denial of the case that the complainant has opened two accounts bearing  Nos.945 and 1604 with the Opposite Parties and the complainant used to deposit or withdraw the amount from the said accounts from time to time. Moreover,    Opposite Parties have nowhere denied the factum with regard to debit and credit entries made in pass books, copies of the same are placed on record as Ex.C2 and Ex.C3. Copies of the pass book reflects that  the Opposite Parties made so many debit and credit entries. The only contention of Opposite Parties is that  the complainant has concealed the factum of receipt of payment of Rs.50,000/- made by Opposite Parties on 16.09.2018 and said payment has been duly acknowledged to have been received by the complainant vide payment voucher dated 16.09.2018. Ld.counsel further contended that on that date, the complainant did  not bring the pass book alongwith him while payment referred above was made and as such necessary entries of said amount could not be reflected in the pass book and now taking undue advantage of incomplete entries in said pass book, the complainant has filed the present complaint to extort the huge amount without any liability. However, Opposite Parties have never refused to pay the remaining due amount  of Rs.23,682/- only to the complainant.

11.     With regard to Voucher Ex.Ops3 vide which the cash payment of Rs.50,000/- has been stated to be made by Nau Nidh Finance Limited to the complainant  on 16.09.2018. It was specifically denied by the complainant that he had received this payment. Perusal of the said cash voucher Ex.Ops3 vide which the Opposite Parties have allegedly made the cash payment of Rs.50,000/- to the complainant   shows that first of all, this payment voucher is without any head note/ title of Nau Nidh Finance Limited, whereas on all other receipt and payment vouchers there is specific name of Nau Nidh Finance Limited, printed on these receipt and payment vouchers, secondly, the alleged signatures of complainant Kuldeep Singh was  not taken on revenue stamps which was affixed on the side of signatures allegedly made by the complainant, next very material question is that as per Banking Regulations and Income Tax Act/ rules  which are applicable to financial institutions also, no payment more than Rs.20,000/- is to be made in cash. Therefore, the alleged such huge payment of  Rs.50,000/-, should have been made through cheque/ draft or any other mode as required under Banking Regulations and Income Tax Act/ rules.  Furthermore on the alleged date i.e.16.09.2018 it was Sundary Holiday, and it is not believable that Opposite Parties- Nau Nidh Finance Limited, which is a limited company, may have opened its office on Sunday, only to disburse the alleged payment to the complainant.  Not only this, it is not disputed that the Opposite Parties is a limited company and on the other side, perusal of the statement of  accounts of the complainant produced on record as Ex.Ops2 and Ops4 shows that these statements have been duly signed by the partner of Nau Nidh Finance Company (Regd.), Moga and as such, the Opposite Parties are blowing hot and cold in the same breach and these statement of accounts of the complainant produced by the Opposite Parties itself as Ex.Ops 2 and Ex.Ops4 to corroborate its defence, can not be admitted as gospel truth. Hence, keeping in view the case from every angle, we are of the view that  voucher Ex.Ops3 has not been proved beyond doubt that it was executed by the complainant and further it was not corroborated by producing the account books of the Opposite Parties. Therefore, the payment as alleged by the Opposite Parties has not  been proved to be made to the complainant. 

12.     Now come to the quantum of compensation. The complainant vide his complaint has sought the relief of payment of Rs.1,72,008/- in

Account No. 945 and Rs.1905/- in another account No. 1604, but these calculation has been made levying the interest rate of 12% per annum which appears to be exorbitant and hence,  taking into account, the net recoverable amount of Rs.72,800/- as on 08.05.2018, we allow the said recoverable amount of Rs.72,800/- alongwith reasonable rate of interest i.e. @ 8% per annum and we allow the complaint accordingly.  

13.     In view of the aforesaid facts and circumstances, the complaint in hand stands allowed partly and the Opposite Parties-Nau Nidh Finance  is directed to pay the recoverable amount of Rs.72,800/-  (Rupees seventy two thousands  eight hundred only)  alongwith interest @ 8% per annum from its due date i.e. 08.05.2018 till its actual realization.   The Opposite Parties are also directed to pay lump sum compensation  amount of Rs. 10,000/- (Rupees Ten thousands only) on account of harassment, mental tension  including  litigation expenses, to the Complainant. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

14.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as the situation  arising due to outbreak of the Novel Coronavirus (COVID-19).

Announced in Open Commission.

Dated:08.02.2022.