BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.231/2007 AGAINST C.D.No.234/2005 DISTRICT FORUM-II, VIJAYAWADA.
Between:
Sahara Housing Fina Corporation Ltd.,
(previously known as Livewell Home Finance Ltd.,)
Office at Sahara Manzil, opp:Secretariat,
Saifabad, Hyderabad,
Rep. by its Officer K.Sairam. Appellant/
Opp.party
And
Smt.Srijayalakshmi, W/o.M.V.R.Prasad,
R/o.4th floor, flat No.307,
Anjana Apartments, Water Tank Road,
Labbipet, Vijayawada-10. Respondent/
Complainant
Counsel for the Appellant: Ms.Vijaya Sagi
Counsel for the Respondent: Mr.V.Ravindranath Reddy
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
.
WEDNESDAY, THE SIXTEENTH DAY OF JUNE,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member.)
***
Aggrieved by the order in C.C.No.234/2005 on the file of District Forum-II, Krishna at Vijayawada, opposite party preferred this appeal.
The brief facts as set out are that the complainant was induced by the opposite party to purchase a house by availing loan and the complainant availed the loan and purchased the house and was paying the EMI regularly. It is the case of the complainant that she gave a cheque bearing No.241160 dated 5-3-2004 for Rs.20,000/- towards instalment due and thereafter she paid an amount of Rs.5,000/- on 8-3-2004 vide receipt No.32446, Rs.8000/- on 20-3-2004 vide receipt No.32703 and Rs.10,000/- on31/3/2004 vide receipt No.32725 and paid more than Rs.20,000/- but the opposite party did not return the cheque and intentionally presented the same for collection without the knowledge of the complainant and got issued a legal notice dated 20-8-2004 to the husband of the complainant with false and untenable allegations for which a reply was sent and thereafter also the opposite party did not return the cheque. The complainant submitted that she discharged the entire debt by paying Rs.85,413/- and even thereafter the opposite party intentionally kept the cheque and all her efforts for getting back the cheque became futile. Hence the complaint for a direction to the opposite party to return the cheque bearing No. 241160 dated 5-3-2004 for Rs.20,000/- together with compensation and costs.
Opposite party filed version contending that the allegations of the complainant are false and submitted that the name of the opposite party was changed as M/s.Sahara Housing FINA Corporation Limited. It contended that it was not the complainant that gave the cheque but it was her husband who gave the cheque to the Branch Manager of the opposite party for Rs.20,000/-. It admitted that the complainant paid Rs.23,000/- but it was paid for dues and though the complainant persuaded the husband of the complainant, co-borrower, he failed to adhere the request of the opposite party and hence they presented the cheque for collection and it was dis-honoured on the ground of insufficient funds. Thereafter a notice was issued to the husband of the complainant for which a reply with false and untenable allegations was given and therefore the opposite party filed a private complaint U/s.138 of N.I. Act and the same was numbered as CC 1490/2004 on the file of III Addl.Chief Metropolitan Magistrate Court, Vijayawada. Since the husband of the complainant failed to attend the court, a Non Bailable warrant was issued which is pending. Later the opposite party inadvertently typed that the complainant and her husband were due Rs.85,413/- plus penal charges and later sent a letter dated 11-9-2004 stating that the above figure was a mistake and the complainant and her hushand were due Rs.85,413/- principal amount apart from interest etc., Taking advantage of the same, the complainant sent a D.D. for Rs.85,413/- and is now insisting for return of the cheque which is before the court of law and submitted that the complainant is due in an amount of Rs.1,58,230/- and filed the complaint as a counterblast to CC No.1490/2004 and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A11 and B1 to B17 and the pleadings put forward, the District Forum allowed the complaint directing the opposite party to return the cheque No. 241160 dated 5-3-2004 for Rs.20,000/- and also further directed to pay Rs.2,000/- towards costs.
Aggrieved by the said order, opposite parties preferred this appeal.
The facts not in dispute are that the complainant availed loan for purchase of an apartment and has given towards security title deeds and has been paying all monthly instalments till the month of February, 2004. It is the case of the complainant that one Mr.Muralikrishna, Branch Manager of the opposite party demanded that the complainant give post dated cheque for the month of March EMI and the complainant gave a post dated cheque bearing No.241160 dated 5-3-2004 for Rs.20,000/-. Thereafter it is the complainant’s case that she paid the March EMI vide receipt dated 8-3-2004, 20-3-2004, 31-3-2004 respectively. It is the main case of the complainant that inspite of several requests, the opposite party did not return the post dated cheque dated 5-3-2004 for Rs.20,000/-. The opposite party got issued a legal notice dated 28-8-2004 evidenced under Ex.A3 for the dis-honouring of the cheque for which the complainant vide Ex.A8 got issued a notice dated 20-4-2005 stating that the opposite party received the due amount of Rs.85,413/- but did not return the cheque of Rs.20,000/-
It is the case of the appellant/opposite party that the respondent/complainant is not liable for return of the cheque as the matter is pending before the III ACMM and the signatory is not appearing and hence NBW is pending against the signatory. It is the further contention of the appellant that if the payment has been made against the cheque, the same can be proved by the III ACMM and the complainant’s husband has to get acquittal from the court. They also raised a plea in the counter that only because the complainant failed to pay the instalments of Rs.48,044 upto 5-3-2004 that repeated demands were made by the opposite party and the complainant’s husband issued a cheque bearing No.241160 for an amount of Rs.20,000/- and when this cheque was dishonoured, the opposite party filed the complaint against the complainant’s husband U/s.138 of N.I. Act before the Hon’ble III Addl.Chief Metropolitan Magistrate Court and hence there is no deficiency of service on their behalf.
The contention of the appellant that a typographical error occurred in the letter addressed and that there was due of Rs.85,413/- when actually there was due of a larger amount is unsustainable since it is not supported by any documentary evidence. It is an admitted fact that the complainant paid the entire due amount of Rs.85,413/- and when the cheque for March EMI was given on 5-3-2004, it is pertinent to note that it was presented on 14-8-2004 i.e. after a lapse of 5 months. It is also evidenced from the record vide Ex.A17, the complainant is due only Rs.85,460/- i.e. she is only due of fraction of amount of Rs.47/- and moreover the complainant has to discharge her debt in 120 equal monthly instalments i.e. it has to be discharged by 31-7-2007, but she has discharged the same in the year 2004 itself. In the absence of any evidence on record to substantiate the contention of the opposite party that the complainant is still due some amounts and that there is a typographical error in the letter sent by them that there is an amount due from the complainant, we do not see any grounds to interfere with the well considered order of the District Forum.
In the result this appeal fails and is accordingly dismissed. There shall be no order as to costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.16-6-2010
