ORDER
(Passed on 27/12/2018)
PER SHRI.ATUL D.ALSI, PRESIDENT.
The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging non refund of deposit by the OP and thereby committing deficiency in service and praying for refund of deposit amount of Rs.10 lac alongwith 18% interest and further claiming compensation of Rs. 2 lac towards mental torture and further Rs.15,000/- towards cost of proceeding.
2. The facts in short giving rise to this petition are that OP No.1 used to initially run a business in the name Kotak Mahindra Credit Services and was engaged into finance business. Thereafter he changed its nature of business and name into Vin Finance & Auto Deal. The OP accepts deposits in the name of firm and and use to pay interest on maturity as per agreement. Accordingly, the complainant deposited Rs.10 lac on 26/2/2013 for the period of 12 months as per agreement executed between the complainant and OP on 26/2/2013. The OP issued post dated cheque bearing No.032090 for effecting refund of deposit amount including interest which was to be encashed on maturity. For collecting that much amount, the complainant took handloan of Rs.5 lac from his friend Mr.Nirmal Dhatrak R/o Chandrapur. On maturity of deposit, the complainant approached to OP No.1 for refund of deposit amount, but the OP No.1 refused and told the complainant that he is not in a position to refund the amount and requested for further extension of 12 months. The complainant accepted the proposal. The OP No.1 issued another cheque dated 26/2/2015 towards refund of deposit amount with enhanced rate of interest for further 12 months. On its maturity, the complainant, after confirming from OP, presented the cheque in her bank account, but it was dishonored due to late submission beyond the validity of cheque of 3 months as per return memo dated 27/5/2015. The complainant approached to OP and requested for refund of amount, however, the OP refused to do so. Therefore the complainant issued legal notice to all the OPs but OP Nos.2 & 3 failed to comply. The complainant also filed application under right to information act to OP Nos.2 & 3 in respect of validity period of cheque, but they failed to give reply. Hence for non refund of deposit amount, OP Nos.1 to 3 are jointly and severely liable. Hence, the complainant has filed this complaint.
3. The complaint is admitted and notices were served on the OPs. The OP No.1 filed his reply and thereby denied allegations against him. He admitted in his reply that he is having good relations with husband of the complainant and, therefore, accepted Rs.10 lac on 26/2/2013 as per agreement written on stamp paper of Rs.500/-. The OP No.1 submitted in his reply that the amount was taken as a hand loan for OPs firm. He also issued post dated cheque bearing No.06961 dated 25/2/2015 drawn on Axeis Bank for the refund of deposit amount alongwith interest for the extended period. However, in the meantime, the OP No.1 was falsely impleded in a Criminal Case and had been remanded to Central Jail, Chandrapur for the period August, 2014 to August,2015. Therefore, the OP No.1 was not having knowledge of dishonor of post dated cheque issued by him in favour of complainant. The OP No.1 has no concern with the deposit scheme of Kotak Mahendra Security Services and Vin Finance and Auto Deal. The complainant has filed false case and is having no locus standie to file this complaint. The Forum has no jurisdiction to adjudicate the complaint. Hence the complaint deserves to be dismissed with cost.
4. Counsel for the complainant argued that the OP No.1 was initially running Kotak Mahendra Security Services and has thereafter changed nature of business of the firm and also the name as Vin Finance & Auto Deal. The OP No.1 accepted deposits from public. As per his scheme, he used to issue post dated cheque for refund of deposit alonwith interest. The complainant deposited Rs.10 lac with OP No.1 and the OP1 also issued cheque dated 26/2/2013. However, after maturity when the complainant presented the cheque for encashment in his bank account, the same was dishonoured for delayed submission beyond the validity period of cheque. Various depositors including the complainant have filed FIR against the OP No.1 at Durgapur Police Station, Distt.Chandrapur. The OP No.1 used to accept deposits in the name of firm and used to execute agreement in his personal name. Therefore, the OP has indulged into Unfair Trade Practice. The OP No.1 is liable to refund deposit amount to the complainant. Hence the complainant has locus standie and the Forum has jurisdiction to adjudicate the complaint. Therefore, the complaint may be allowed as prayed.
5. Counsel for the OP No.s 2 & 3 were absent at the time of argument.
6. We have gone through the complaint, written versions filed by OP No.1 and, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.
Points Finding
1. Whether the complainant is a Consumer ? Yes
2. Whether the Forum has jurisdiction to entertain
the complaint ? Yes
3. What order ? As per final order..
As to issue No.1 & 2
7. As per FIR filed at Police Station Durgapur, Distt.Chandrapur, Maharashtra bearing FIR No.83/2014 on 12/8/2014 U/s 420, 467, 468, 471, 109 read with Section 201 of IPC and Section 3 of Maharashtra Protection of Depositors & Chit Fund Act and Section 138 of Negotiable Instruments Act crime has been registered against OP No.1 for accepting deposits from from various persons for the period of 12 months @5% per month amounting to Rs.18 lac and in other cases amounting to Rs.3 crore and for dishonouring of post dated cheques issued by the OP for refund of deposits for insufficient funds. Therefore it is proved that the OP No.1 has accepted deposits in the name of firm and he used to execute agreements in his personal capacity in favour of various depositors. As per affidavit evidence filed on record, of Mr.Panchasheel Kumbhare R/o Shaktinagar at Exh.13, Shri.Vijay Malikar R/o Urja Kolony, Shaktinagar, Chandrapur at Exh.12, Shri.Vinod Charate R/o Urjanagar, Chandrapur at Exh.11 and the evidence on affidavit filed by the complainant at Exh.15, it is proved that the OP No.1 used to accept deposits in the name of firm initially by name, Kotak Mahendra Security Services which has been changed as Vin Finance & Auto Deal and used to issue post dated cheques for refund of deposit amount alongwith interest accrued after a specified period. Therefore, the complainant is a Consumer within the meaning of Section (2)(1)(d) and this Forum has jurisdiction to adjudicate the matter.
8. The OP No.1, after accepting deposits, failed to repay the deposit amount within the given period of time and the post dated cheques issued by him towards repayment of deposits alongwith accrued interest, were dishonoured. Therefore, this act on the part of OP No.1 amounts to Unfair Trade Practice. The OP has not refunded the deposit even after repeated demand, issuance of legal notice even after laps of extended period. This amounts to deficiency in service on the part of OP No.1.
9. OP Nos.2 & 3 are bank and they have dishonoured and returned the cheque presented by the complainant as the cheque has been presented after its validity period of 3 months as per the provisions of Banking Regulation Act 1947. Hence there is no deficiency in service on the part of OP Nos.2 & 3.
As to issue No.3
10. In view of our observations as above, we pass the following order..
Final order
1. The Complaint is bearing No.34/2017 is partly allowed.
2. The OP No.1 is directed to repay Rs.10 lac to the complainant alongwith interest @10% p.a. from the date of admission of this complaint i.e. 3/6/2017 till actual realization.
3. The OP No.1 is directed to pay Rs.25,000/- to the complainant towards compensation for mental torture and Rs.10,000/- towards cost of proceeding.
4. No order is passed against OP Nos.2 & 3.
5. Copy of the order be furnished to both the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil) (Shri.Atul D.Alsi)
Member Member President
