Complaint No: 35 of 2019.

                                                                 Date of Institution: 04.02.2019.

                                                                         Date of order: 16.02.2024. 

Kulwinder Kaur Wife of Satnam Singh, resident of Village Nanowal Jinder, P.O Bhattian, Tehsil and District Gurdaspur. Pin Code – 143517.                                                                                                                                                                   

                                                                                                                                                                  …........Complainant.                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                          VERSUS

Shri Achleshwar Fincaps Ltd., 24-25, Lal Chand Aggarwal Market, G.T. Road, Batala, Tehsil Batala District Gurdaspur, through its Proprietor / Authorized Signatory. Pin Code – 143505.

                                                                                                                                                                       ….Opposite party.

                                                            Complaint Under section 12 of Consumer Protection Act.

Present: For the complainant: Sh.Rahul Puri, Advocate.

              For the opposite party: Sh.Inderjit Vaid, Advocate.  

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Kulwinder Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Shri Achleshwar Fincaps Limited (here-in-after referred to as 'opposite party).

2.       Briefly stated, the case of the complainant is that the complainant taken personal loans of Rs.1,70,000/- i.e. one loan of Rs.50,000/- and one loan of Rs.1,20,000/-  from the opposite party on dated 19.05.2017 and 15.06.2017 respectively for her domestic purpose. It is pleaded that at the time of advancement of above said loans, the opposite party took 7 Blank Cheques of State Bank of India bearing cheques No. 956526, 956527, 956528, 956529, 956530, 956531 and 956532 and Registry of Plot owned and possessed by the complainant in token of security. The opposite party also obtained blank signed cheques of husband of the complainant in token of security of loan. The complainant was given file No’s as 23239 of Rs.50,000/- and 23298 of Rs.1,20,000/-. The complainant repaid the entire loans amount alongwith interest to the opposite party and nothing is due towards the complainant i.e. Rs.2,11,000/-. It is further pleaded that after the clearance of above said personal loans, on dated 02.01.2019 the complainant approached the opposite party and requested to return her blank signed cheques alongwith sale deed and blank signed cheques of her husband and also requested the opposite party to issue No Due Certificate, but to the utter surprise, the opposite party raised demand of more Rs.50,000/- from the complainant illegally and forcibly and threatening the complainant to misuse the above said cheques of the complainant in order to extract more amount from the complainant. It is further pleaded that the act of the opposite party by refusal to return the cheques and documents of the complainant and not issue the No Due Certificate to the complainant and demanding more amount from the complainant is illegal, null and void, against the law and instruction, arbitrary, cryptic, as the complainant is not liable to pay the same and the opposite party is bound to return the cheques and documents of the complainant and also bound to issue NOC certificate to the complainant. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to return the 7 Blank Cheques of State Bank of India and sale deed  of Plot owned and possessed by the complainant in token of security and also return blank signed cheques of husband of the complainant taken by the opposite party in token of security of loan and the opposite party be also directed to issue No Due Certificate to the complainant. The opposite party may be further burdened to pay Rs.20,000/- to the complainant towards mental harassment and mental agony suffered to the clear cut deficiency in service on the part of the opposite party, in the interest of justice. Any other relief may also be passed in favour of the complainant in the interest of justice.

3.       Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable in the present form and the complainant has estopped by her own act and conduct. It is pleaded that the complainant has guilty of suppression of material and vital facts from the Hon'ble Commission and as such, the complainant has not come to the Hon'ble Court with clean hands and the complainant is not entitled to any relief as prayed for and the present complaint is malafide motivated and is gross misuse of process of law. It is further pleaded that the matter of fact is that the complainant took two loans of Rs.54,600/- on dated 19.05.2017 and Rs.1,20,000/- on dated 19.05.2017 respectively from the answering opposite party for the fulfillment of domestic needs etc. and at present, a sum of Rs.1,25,000/- is due and payable by the complainant to the answering opposite party and this fact has been acknowledged by the complainant vide letter dated 02.01.2019 duly submitted by the complainant to the answering opposite party. It is further pleaded that In this regard, the complainant and her husband i.e. Satnam Singh also issued two postdated cheques i.e. cheque No. 956529 dated 02.02.2019 for Rs.90,000/- duly signed by the complainant and her husband Satnam Singh as guarantor and cheque No. 956528 dated 02.04.2019 for Rs.35,000/- duly signed by the complainant both the cheques are drawn on State Bank of India Branch G.T. Road Gurdaspur in discharge of their loan liability being loanee as well as guarantor. It is further pleaded that the answering opposite party presented the first cheque to their bankers i.e. Punjab & Sind Bank Branch Cinema Road Batala for the encashment of the said cheque on dated 12.02.2019, but during the course of clearing of the said cheque, the bankers of the complainant returned the said cheque as unpaid with Memo dated 12.02.2019 with remark on Memo dated 12.02.2019 “FUNDS INSUFFICIENT” meaning thereby that the complainant had no funds in their account at the time of issuance of the said cheque as well as at the time of presentment of the said cheque by the answering opposite party. In fact, the complainant and her husband Satnam Singh were aware of it, that the said cheque will be dishonored as and when the same will be presented for its encashment by the answering opposite party. Thereafter, the answering opposite party issued a legal notice dated 05.03.2019 dispatched on dated 06.03.2019 U/s 138 NI Act to the complainant and her husband Satnam Singh, whereby, the cheque amount was demanded from the complainant, but neither the complainant gave any reply to the said legal notice nor the complainant made the payment of the cheque within the stipulated period of the said legal notice. It is further pleaded that the answering opposite party had no option, but to file a criminal complaint U/s 138 NI Act against the complainant and her husband Satnam Singh, which is pending in the Court of SDJM Batala. Needless to add here that so for the second cheque No. 956528 dated 02.04.2019 for Rs.35,000/- issued by the complainant has also been presented in the bankers of the complainant for its encashment and same has also been retuned as unpaid by the bankers of the complainant vide Memo dated 05.04.2019 with remark on the memo “FUNDS INSUFFICIENT” and the answering opposite party has also issued a legal notice to the complainant, whereby, the cheque amount has been demanded from the complainant by the answering opposite party and the answering opposite party has reserved its right to initiate the legal proceedings U/s 138 NI Act against the complainant in case, the complainant failed to pay the amount as covered in the second cheque within the stipulated period of the legal notice. It is further pleaded that the complainant is guilty of suppression of material and vital facts from the Hon'ble Commission and as such, the complainant has not come to the Hon'ble Court with clean hands and the complainant is not entitled to any relief as prayed for. The complainant is estopped by her own act and conduct. The present complaint is not maintainable in the present form. The story as propounded by the complainant is false, frivolous, baseless, imaginary, concocted and without any force.

          On merits, the opposite party has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

4.       Learned counsel for the complainant has filed Self-Attested affidavit of Kulwinder Kaur, (Complainant) as Ex.CW-1 alongwith Self-Attested documents as Ex.C-1 to Ex.C-15.

5.       Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Rajnish Mahajan, (Managing Director of Shri Achleshwar Fincaps Ltd., Gurdaspur) as Ex.OP-1/A alongwith other documents as Ex.OP-1 to Ex.OP-16 alongwith reply.  

6.       Rejoinder filed by the complainant.

7.       Written arguments not filed by the parties.

8.       Counsel for the complainant has argued that complainant had taken personal loans of Rs.1,70,000/- and had issued 7 post dated cheques as guarantee and one sale deed of the plot as security. It is further argued that complainant has repaid the entire amount i.e. Rs.2,11,000/- to the opposite party on 02.01.2019 and thereafter approached the opposite party with the request to return the blank signed cheques, copy of sale deed and issuance of No Due Certificate and refusal on the part of the opposite party amounts to deficiency in service.

9.       On the other hand counsel for the opposite party has argued that infact complainant had obtained two loans one for Rs.1,20,000/- and other for Rs.54,600/- and had executed promissory note and hire purchase agreement. It is further argued that Rs.1,25,000/- due from complainant and accordingly complainant and her husband had issued two cheques for Rs.90,000/- and Rs.35,000/-  and both the cheques were dishonored by the bank on presentation and after service of legal notice complainants were filed by the opposite party and the present complaint has been filed by the complainant to conceal her own illegal act and complaint is liable to be dismissed.

10.     We have heard the Ld. counsels for the parties and gone through the record.

11.     It is admitted fact that complainant had obtained loan of Rs.1,20,000/- on 19.05.2017. It is further admitted fact that complainant had executed promissory note and loan agreement in favour of the opposite party. It is further admitted fact that complainant has returned Rs.1,87,000/- to the opposite party. The only disputed issue before this Commission for adjudication is whether the failure to issue No Due Certificate and returned the cheques and sale deed amounts to deficiency in service on the part of the opposite party.

12.     To prove her case complainant has placed on record her affidavit, Ex.CW-1, copies of receipts Ex.C1 to Ex.C15 whereas opposite party has placed on record affidavit of Rajnish Mahajan Managing Director Ex.OP-1/A, copy of promissory note Ex.OP-1, copy of ledger folio Ex.OP-2, copy of proposal form for hire purchase Ex.OP-3,  copy of hire purchase agreement Ex.OP-4. Copy of promissory note Ex.OP-5, copy of ledger folio/receipt Ex.OP-6, copy of proposal form for hire purchase Ex.OP-7, copy of hire purchase agreement Ex.OP-8, copy of letter dated 02.01.2019 Ex.OP-9, copy of cheque Ex.OP-10, copy of memo Ex.OP-11, copy of legal notice Ex.OP-12, copy of complaint under section 138 of Negotiable Instrument Act Ex.OP-13, copy of cheque Ex.OP-14, copy of memo Ex.OP-15 and copy of legal notice Ex.OP-16.

13.     Perusal of file shows that complainant had obtained loan of Rs.1,74,609/- from the opposite party finance company and had executed promissory note Ex.OP-1 which is duly signed by the complainant and witnessed by her husband Satnam Singh. Complainant has further executed hire purchase agreement Ex.OP-4 and Ex.OP-8 while obtaining the said loans from the opposite party. Perusal of promissory notes Ex.OP-1 and Ex.OP-5 shows loan amounts was to be returned with 36% interest P.A. Complainant has placed on record receipts Ex.C1 to Ex.C15 as per which complainant has deposited total amount of Rs.1,87,000/- with the opposite party. Meaning thereby that only principal amount has been returned by the complainant and has failed to pay the interest on the loan amounts. Perusal of file shows that although opposite party has placed on record promissory note and loan agreement signed by the complainant but the opposite party has not placed on record any account statement regarding receipt of payments from the complainant and calculation of interest thereon. Perusal of loan agreement shows that there is no reference regarding execution of equitable mortgage to retain any sale deed of the complainant. Moreover, complainant has not mentioned the particulars of the sale deed retained by the opposite party. Accordingly we are of the view that since the complainant has failed to prove deposit of sale deed and has further failed to repay the loan amount alongwith agreed rate of interest as such complainant is not entitled to receive No Due Certificate. Handing over of sale deed by way of equitable mortgage is not proved by producing any document.

14.     As far as the plea of the complainant regarding return of blank signed cheque is concerned. The opposite party has admitted to be in possession of two cheques Ex.OP-10 and Ex.OP-14 and complainant has not placed on record any receipt regarding handing over the other cheques to the opposite party. The opposite party has already filed complaints under section 138 of Negotiable Instrument Act and has adopted due course of law to recover the amount. Accordingly we do not find any deficiency in service on the part of the opposite party.

15.     Accordingly, present complaint is being without merit is ordered to be dismissed with no order as to costs.

16.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

17.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

Feb. 16, 2024                                                        Member.

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