DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No.111 of 27.4.2007<br /> Decided on : 2.8.2007 <br /> <br /> Lal Chand S/o Sh. Babu Lal, Proprietor, Garg Shuttering Store, Sham Singh Colony, Hanumangarh Junction (Rajasthan)<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. Oriental Bank of Commerce, Civil Lines Branch, Bathinda through its Branch Manager.<br /> 2. The Town Improvement Trust, Bathinda through its Executive Officer.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> <br /> For the Complainant : Sh. Gursewak Singh Chugh, Advocate<br /> For the Opposite Parties : Sh. Jagmohan Syal, counsel for opposite party No.1<br /> Sh. M.R. Gupta, counsel for opposite party No. 2 <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Transport Nagar scheme was floated by opposite party No.2 for allotment of residential plots of various sizes to the public on the basis of draw. Complainant had applied for allotment of residential plot measuring 373.75 Sq. Yards. Opposite party No.1 was authorised to receive the applications alongwith earnest money. Accordingly, complainant had inadvertently deposited Rs. 64,000/- as earnest money instead of Rs. 62,000/- with opposite party No.1. Receipt dated 2.3.2005 of Form No. 12596 alongwith Rs. 64,000/- was issued by opposite party No.1. Complainant could not be successful applicant in the draw held by opposite party No.2. Cheque No. 822683 dated 30.5.2005 for Rs. 62,000/- was sent by opposite party No.2 to him (complainant) drawn on Oriental Bank of Commerce, Bathinda. Complainant served notice dated 29.11.2005 on opposite party No.2 through his counsel Sh. Dinesh Kumar Sharma, Advocate, Hanumangarh. In response, opposite party No.2 informed him that it had received Rs. 62,000/- only from opposite party No.1 and not Rs. 64,000/- and that amount of Rs. 2,000/- is lying with opposite party No.1. Despite repeated requests and visits amount of Rs. 2,000/- has not been refunded either by opposite party No.1 or opposite party No.2. A week before the filing of the complaint, Branch Manager of Oriental Bank of Commerce, Civil Lines Branch, Bathinda was approached by him with request to refund the amount of Rs. 2,000/- with interest. He refused to make the payment saying that matter was under consideration and that he would be paid the amount within a couple of days. Thereafter, no intimation has been sent by him. He alleges deficiency in service on the part of the opposite parties. In these circumstances, complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by him seeking direction from this Forum to the opposite parties to pay him Rs. 2,000/- alongwith interest @ 18% P.A , Rs. 20,000/- as compensation for mental tension and Rs. 2,000/- as litigation expenses including counsel fee.<br /> 2. On being put to notice, opposite party No.1 filed reply taking legal objections that complaint is not maintainable in the present form; it is bad for non-joinder of Oriental Bank of Commerce, Bank Street Branch, Bathinda and mis-joinder of it as party as it was only a collecting agency which had collected the application forms of various applicants and had sent them to Oriental Bank of Commerce, Bank Street Branch, Bathinda where opposite party No.2 is having its account; intricate questions law and facts are involved which cannot be decided in summary procedure before this Forum and as such, Civil Court has got the jurisdiction to entertain and try this complaint; complaint has been filed with malafide intention to harass and humiliate it and complainant has no locus-standi or cause of action to file the complaint against it because he is not its consumer. It admits that opposite party No.2 had launched a scheme for allotment of residential plots to the public on the basis of the draw. It was authorised to receive the applications on behalf of opposite party No.2 which has its account with Oriental Bank of Commerce, Bank Street Branch, Bathinda. It had received 1258 applications and Rs. 6,65,80,000/-. This amount was kept by it and subsequently, it was transferred to Oriental Bank of Commerce, Bank Street Branch, Bathinda where opposite party No.2 was having its main account. Amount was credited by the Bank Street Branch in the account of opposite party No.2. It had received Rs. 64,000/- from the complainant through draft and this amount was credited in the account of opposite party No.2. After that opposite party No.2 closed its account with it on 15.3.2005 after transfer of the entire amount of applications. Thereafter, it has got no concern with opposite party No.2. When complainant could not get plot in draw, opposite party No.2 had sent cheque of Rs. 62,000/- in his favour which was got encashed by him. Bank has to make the payment according to the instructions of the account holder. Account holder had issued cheque for Rs. 62,000/- and as such, there is no negligence on its part. Balance amount, if any, is to be paid by opposite party No.2 and it (opposite party No.1 ) has got nothing to do with it. Remaining averments in the complaint stand denied.<br /> 3. Opposite party No.2 filed its separate version taking legal objections that complaint is not maintainable in the present form; intricate questions are involved and as such, dispute should be relegated to the Civil Court; complaint has been filed just to harass and humiliate it; complainant has not demanded any relief against it; he has concealed material facts; he has not come with clean hands; he is estopped from filing the complaint by his act and conduct and complaint is bad for non-joinder of parties. It admits that scheme was launched by it for allotment of residential plots and complainant had applied for allotment of one plot. Complainant was not successful applicant in the draw. As per version of the complainant, a sum of Rs. 64,000/- was deposited by him with opposite party No.1. Rs. 62,000/- were sent to it (opposite party No.2). Same was refunded to the complainant vide cheque No. 822683 dated 30.5.2005. Notice was received from the complainant through his counsel, reply of which was given stating that it had received Rs. 62,000/- only and not Rs. 64,000/- and that amount of Rs. 2,000/- is lying with opposite party No.1. It refutes the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Lal Chand complainant tendered into evidence his own affidavits Ex.C.1 and Ex.C.2, photocopy of cheque dated 30.5.2005 (Ex.C.3), photocopy of acknowledgement (Ex.C.4), photocopy of counter-foil of deposit form of OBC ( Ex.C.5), photocopy of reply to the notice dated 8.12.2005 (Ex.C.6), photocopy of notice dated 29.11.2005 (Ex.C.7) and photocopy of pamphlet regarding the scheme floated by opposite party No.2 (Ex.C.8). <br /> 5. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.3) of S/Sh. Gora Lal Jindal, Executive Officer of opposite party No.2 and D.N. Goyal, Senior Branch Manager of opposite party No.1 respectively, photocopy of one page of statement of account (Ex.R.2), photocopies of four pages of Cash Book (Ex.R.4), photocopy of statement of account (Ex.R.5), photocopy of list of applicants who had applied for loan (Ex.R.6), photocopy of list of applicants who had applied for plots (Ex.R.7), copy of details of application money received on behalf of Improvement Trust (Ex.R.9), copy of list of applicants who had applied for residential plots (Ex.R.10), copies of two pages of statement of account (Ex.R.11) and photocopy of one page of register regarding receipt of applications.<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties.<br /> 7. At the very out-set learned counsel for opposite party No.1 contended that intricate questions of law and facts are involved which require elaborate oral as well as documentary evidence and as such, this Forum has got no jurisdiction and that only civil court is competent to adjudicate the complaint. There is no substance in this argument. Evidence has been led by the parties. At no stage it was pointed out by opposite party No.1 that some other oral or documentary evidence is required which could not be produced before this Forum. Moreover, matter has been set at rest by their Lordships of the Hon'ble Supreme Court in the case of CCI Chambers Co-op. Housing Society Ltd. Vs. Development Credit Bank Ltd.-III(2003)CPJ-9(SC) by holding that it cannot be denied that Fora at the National level, the State level and at the District level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Fora have been established and conferred with jurisdiction in addition to the conventional Courts. The principal object sought to be achieved by establishing such Fora is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure which at times is accompanied by technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved. Similar view has been held by their Lordships of the Hon'ble Apex Court in the case of Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi-III(2002)CPJ-8(SC). Accordingly, this plea of opposite party No.1 regarding jurisdiction of this Forum is repelled.<br /> 8. Other objection of opposite party No.1 is that complaint is bad for non-joinder of Oriental Bank of Commerce, Bank Street, Bathinda which is a necessary party as opposite party No.2 has its account with that bank and it (opposite party No.1) had deposited the amount collected by it on behalf of opposite party No.2 in its (opposite party's No.2) account with Oriental Bank of Commerce, Bank Street, Bathinda. Necessary party is one without the addition of which matter cannot be effectively and completely adjudicated upon. In this case, no relief has been claimed by the complainant against Oriental Bank of Commerce, Bank Street, Bathinda. Amount of Rs. 64,000/- was deposited with opposite party No.1 alongwith the application for allotment of residential plot which could not be allotted to him by opposite party No.2 and opposite party No.2 has refunded Rs. 62,000/-. Material question for determination is as to whether opposite party No.1 has deposited Rs. 64,000/- in the account of opposite party No.1 with Oriental Bank of Commerce, Bank Street, Bathinda. Complainant is claiming the payment of Rs. 2,000/- out of Rs. 64,000/- alongwith interest from the opposite parties. In these circumstances, Oriental Bank of Commerce, Bank Street, Bathinda is not a necessary party.<br /> 9. There is no quarrel about the fact that opposite party No.2 had invited applications for allotment of residential plots as is evident from Pamphlet. Copy of which is Ex.C.8, issued by opposite party No. 2 including applications for allotment of plots measuring 373.75 Sq. Yards. Rs. 62,000/- were to be deposited as earnest money for plot measuring 373.75 Sq. Yards. Opposite party No.1 was made collecting agency of the application forms and the earnest money by opposite party No.2. Complainant had applied for residential plot measuring 373.75 Sq. Yards. Admittedly, application was submitted by him to opposite party No.1. Instead of deposit of Rs. 62,000/- as earnest money, he had inadvertently deposited Rs. 64,000/- as is clear from Ex.C.4 through draft. Complainant could not be successful in getting the plot. Amount of Rs. 62,000/- was refunded to him by opposite party No.2 vide cheque dated 30.5.2005, copy of which is Ex.C.3. Notice, copy of which is Ex.C.7, was got served by the complainant upon opposite party No.2 which sent reply, copy of which is Ex.C.6, stating that opposite party No.1 had sent Rs. 62,000/- on his behalf which has refunded and that remaining amount of Rs. 2,000/- is with opposite party No.1 which can be recovered from it. <br /> 10. One thing is clear that amount of Rs. 2,000/- out of Rs. 64,000/- has not been returned to the complainant. Both the opposite parties are not shouldering the responsibility to pay it. Opposite party No. 1 is asserting that opposite party No.2 is liable to refund it, whereas opposite party No.2 alleges that opposite party No.1 is liable to pay it. Argument of Mr. Syal learned counsel for opposite party No.1 is that a sum of Rs. 6,65,80,000/- was collected by opposite party No. 1 from the applicants for allotment of plots as is evident from copy of detail of applications Ex.R.8. Ex.R.9 is the list of 282 applicants who deposited RS. 1,56,44,000/- and Ex.R.10 is the list of 976 applicants who deposited Rs.5,09,36,000/-. Name of complainant figures at Sr. No. 967 and a<br /> <br /> sum of Rs. 64,000/- has been shown to have been deposited by him. Ex.R.11 is the copy of the statement of account of opposite party No.1 according to which at one place a sum of Rs. 64,000/- has been shown and this belongs to the complainant and that entire amount deposited by the applicants for allotment of plots comes to Rs. 6,65,80,000/- which was transferred to the account of opposite party No.2 with Oriental Bank of Commerce, Bank Street, Bathinda. He argues that in this manner, opposite party No.2 is liable to refund the entire amount of Rs. 64,000/- to the complainant. His next submission is that computerised statement upon which opposite party no.2 is relying has not been signed by any authority of the concerned banks and as such, they cannot be relied upon. He also drew our attention to the affidavit Ex.R.3 of Sh. D.N. Goyal, Senior Branch Manager of opposite party No.1.<br /> 11. Mr. Gupta learned counsel for opposite party No.2 argued that opposite party No. 1 had transferred a sum of Rs. 6,65,78,000/- in the account of opposite party No.2 with Oriental Bank of Commerce, Bank Street, Bathinda and not Rs. 6,65,80,000/-. Since, opposite party No.1 has not transferred/deposited Rs. 2,000/- deposited in excess by the complainant, opposite party No.2 is not liable to refund this amount. Rather, opposite party No.1 is liable to pay this amount to the complainant.<br /> 12. Respective contentions have been considered by us. Computerised statements which have been relied upon by opposite party No.2 are either attested by the Superintendent-cum-Public Information Officer of opposite party No. 2 or by its Executive Officer. No objection was raised by opposite party No.1 at the time when they were exhibited. Opposite party No.1 has not produced the affidavit of any officer of opposite party No. 1 to the effect that the record which has been produced and proved by opposite party No.2 is not genuine. In these circumstances, the objection raised during the course of<br /> <br /> arguments on behalf of opposite party No.1 cannot be entertained. Opposite party No. 1 is estopped from taking this plea at this stage. <br /> 13. Ex.R.1 is the affidavit of Sh. Gora Lal Jindal, Executive Officer of opposite party No.2 in which he has reiterated the version of opposite party No.2 in the reply of the complaint filed by it. He categorically stated that complainant had deposited Rs. 64,000/- with opposite party No.1 which had sent Rs. 62,000/- to opposite party No.2 and that has been refunded vide cheque dated 30.5.2005. As per Ex.R.10 produced by opposite party No.1, the name of Lal Chand figures at Sr. No. 967. Ex.R.2 is the computerised copy of the list of the applicants sent by opposite party No. 1 to the main branch i.e. Oriental Bank of Commerce, Bank Street, Bathinda. According to it, amount of the complainant sent has been recorded as Rs. 62,000/-. Opposite party No.2 is maintaining its Cash Book. Ex.R.4 is the copy of four pages of the Cash Book in which the names of the applicants who applied for allotment of plots alongwith the amount deposited by them has been recorded. At the bottom of each page, total of the amount has been given. When the total amount of page No. 83 in which the name of the complainant figures, is considered his amount received by opposite party No.2 cannot be concluded to be Rs. 64,000/-. Rather, it comes to Rs. 62,000/-. Opposite party No.1 through Ex.R.8 and Ex.R.11 as well as through affidavit Ex.R.3 of Sh. D.N. Goyal claims that total 1258 applications and amount with them to the tune of Rs. 6,65,80,000/- was received by it and that was transferred in the account of opposite party No.2 with Oriental Bank of Commerce, Bank Street, Bathinda. Opposite party No.1 has failed to establish it by way of leading cogent and convincing evidence. Oriental Bank of Commerce, Bank Street, Bathinda is the main branch of the bank. Opposite party No.1 could produce the record of Oriental Bank of Commerce, Bank Street, Bathinda for establishing that total amount of Rs.<br /> <br /> 6,65,80,000/- was received by it and was transferred in the account of opposite party No. 2. It has not succeeded in doing so. To the contrary, opposite party No. 2 has placed on record copy of the statement of account of opposite party No.2 with Oriental Bank of Commerce, Bank Street, Bathinda from 8.3.2005 to 31.3.2005. This document clinches the matter. A perusal of this document reveals that a sum of Rs. 6,63,93,000/- was transferred in the account of opposite party No.2 on 8.3.2005 and Rs. 1,86,000/- on 17.3.2005. Amount of Rs. 1,000/- was returned on 21.3.2005. Contention of learned counsel for opposite party No.2 is that this amount of Rs. 1000/- was taken by opposite party No.1. In this manner, total transferred/deposited amount of opposite party No.1 in the account of opposite party No.2 with Oriental Bank of Commerce, Bank Street, Bathinda comes to Rs. 6,65,78,000/- instead of Rs. 6,65,80,000/-. In other words, excess amount of Rs. 2,000/- deposited by the complainant with opposite party No.1 by way of draft of Rs. 64,000/-was not transferred by opposite party No.1 in the account of opposite party No.2. Ex.R.7 is the copy of the list of applications sent by opposite party No. 1 to Oriental Bank of Commerce, Bank Street, Bathinda. Against the name of each of the applicant, amount sent has been recorded. Against the name of the complainant, amount sent has been recorded as Rs. 62,000/-. Opposite party No.2 is also maintaining register of applications received for allotment of plots. Copy of the entries of one relevant page is Ex.R.12. According to it, amount of the complainant as per statement was Rs. 62,000/-. <br /> 14. When Ex.R.5 and the other documents do not support Ex.R.11, the plea of opposite party No.1 that amount of Rs. 64,000/- received from the complainant was transferred in the account of opposite party No.2 with Oriental Bank of Commerce, Bank Street, Bathinda alongwith other amount, is not substantiated. Accordingly, conclusion is that opposite party No.1 which was<br /> <br /> collecting agency of opposite party No. 2 illegally retained the amount of Rs. 2,000/- out of Rs. 64,000/- deposited by the complainant. Since, this amount has not been returned to the complainant, there is deficiency in service and unfair trade practice on its part.<br /> 15. Now question arises as to which relief should be accorded to the complainant. In view of our foregoing discussion, direction deserves to be given to opposite party No.1 to pay Rs. 2,000/- to the complainant alongwith interest. Complainant could not be successful applicant for allotment of the plot. Accordingly, amount of Rs. 62,000/- was returned by opposite party No.2 on 30.5.2005. At least, opposite party No.1 should have returned the amount of Rs. 2,000/- on 30.5.2005 if not earlier. Accordingly, opposite party No.1 is liable to pay interest on Rs. 2,000/- from 30.5.2005 @ 9% P.A till payment. Complainant is craving for compensation of Rs. 20,000/-. There is no case to allow it in view of the relief which is being accorded as above. Out of compensation and interest, one can be allowed.<br /> 16. No other point was urged before us at the time of arguments.<br /> 17. In the result, complaint is accepted against opposite party No.1 with costs of Rs. 2,000/-. Qua opposite party No.2, it is dismissed. Opposite party No.1 is directed to do as under :-<br /> ( i ) Pay Rs. 2,000/- to the complainant alongwith interest @ 9% P.A from 30.5.2005 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 18. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 2.8.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member <br /> 'bsg'<br /> <br /> <br /> <br /> <br />