F.A.537 OF 2015 &
F.A.538 OF 2015
Heard the learned counsel for both the parties. Both the appeals arises out of common order.
2. These appeals are filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant, in order to maintain his livelihood purchased a tractor by incurring loan of Rs.3,50,000/- from OP No.2 on 19.10.2012,for that as per agreement the complainant issued 6 nos.post-dated cheques no.098164 to 098169. It is alleged inter-alia that out of six nos. of cheques OP No.2 presented three cheques properly and the complainant has believed that OP No.2 was properly utilizing the blank cheques. The complainant allegedly came to know that cheque of Rs.2,00,000/- was drawn by OP No.1 through their authorized persons on 9.1.13 whereas the cheques were only to be used for the purpose of recovery of the monthly installments. The complainant further alleged that the OP No.1 through his agent has presented the cheque for drawal of Rs.4,00,000/- vide cheque No.0988164 which was delivered to Op No.2 by OP No.1 for the said purpose as per the agreement. But the SBI,Muniguda have passed the cheque for payment but after verification it is noticed that there was no money in the account of complainant as OP No.5 BM,SBI,Muniguda has allowed to draw only Rs.2,00,000/- without any verification. As such the complainant alleged that without his consent Rs.2,00,000/- has been drawn from SBI,Muniguda and further it is alleged by the complainant that the OP No.1 has received only Rs.60,000/- for the purpose of registration, insurance but it was not done and the complainant had to pay the registration, insurance cost etc. Therefore, about deficiency in service of all Ops the complaint was filed.
4. The OP No.1,2,3 & 5 filed the written version separately from each other. OP No.1 filed the written version stating that the complainant has taken tractor on 19.10.2012 from OP No.2 and all the proposals were held between complainant and OP No.2. Thus, nothing is left with the OP No.1 and they have no deficiency in service on their part.
5. OP No.2 filed the written version stating that the OP No.2 has advanced loan of Rs.3,50,000/- to the complainant to purchase the tractor. It is also admitted by OP No.2 that he has collected three monthly installments but withdrawal of Rs.2,00,000/- is incorrect and was wrongly reported. Thus, they have no any deficiency in service on their part.
6. OP No.5 filed written version stating that they have passed the cheque but there is no money in the account of the complainant to meet the demand. Further, it is stated in the written version that the cheque No. 098164 payable to self was presented in the counter and paid to one Dilip Nayak and there remained further balance of Rs.4,04,048/-. Since, there was deposit of Rs.2,00,000/- more, they have averred about further drawal of Rs.4,00,000/-. As there was presentation of cheques for clearance they have allowed the cheques to be encashed. So, they have no any deficiency in service.
7. After hearing both the parties, learned District Forum passed the following order:-
“The OP No.1 & 2 are directed to refund the balance amount of Rs.56,844/- and the OP No.1 & 5 are liable to pay monetary compensation for the financial irregularity while encashing the cheque causing mental agony and financial loss a sum of Rs.15,000/- each alongwith cost of litigation of Rs.2000/- each by OP N.1,2, & 5. The interim order dtd.06.08.13 is made final and the complainant is entitled to got NOC from Op No.2 & 3. The above order be complied by the Ops within thirty days from t6he date of receipt of this order, failing which the Ops are liable to pay penal interest @ 12 % on the above awarded amount till its realization.”
8. Learned counsel for the appellant in F.A.537/2015 submitted that learned District Forum has committed error in law by not considering the case properly. According to him they have already encashed three nos. of cheques for the payment of EMI paid by the complainant. According to him learned District Forum has not considered the case in accordance with law because neither Money Lending Act nor Debt Relief Act are applicable to this case. He submitted to set-aside the impugned order and the learned counsel for the appellant in F.A.538/2015 submitted that they have received the cheque and accordingly made the claim. Therefore learned District Forum has not considered the case with proper facts and law.
9. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
10. It is for the complainant to prove the deficiency in service on the part of the Ops. It is admitted fact that the complainant has obtained loan from OP No.1 & 3 It is not in dispute that OP No.2 has financed for Rs.3,50,000/-. It is also not in dispute that 6 nos. of cheques presented by the complainant and handed over to OP No.2 for utilizing same towards EMI dues. It is not in dispute that OP No.5 encashed the cheques. Learned District Forum as would appears and without any evidence had made a calculation as if substantiated to find out the claim of Rs.2,00,000/-. The complainant is silent about the Money Lending Act but it has been placed by the learned District Forum in their impugned order. After going through same, we are of the view that withdrawal of the cash of Rs.2,00,000/- by the OP No.5 without his consent is a mis-conception with the case of the complainant and the complainant failed to substantiate his case that the OPs are liable to pay any amount.
11. Therefore, the impugned order is illegal and it is therefore set-aside.
Thus, both the appeals are allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the Confonet or Website of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
Statutory amount be refunded.
