Sri Debasis Bhattacharya, Member

This appeal arises out of the Order dated 29-01-2015, passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit II (hereinafter referred to as the Ld. District Forum), passed in C. C. No. 260/2014, whereby the instant complaint case has been allowed on contest.  Being aggrieved by and dissatisfied with the same, OP No. 1 thereof has filed this appeal.

Briefly stated, case of the Complainant, is that, he booked a Hyundai make car with the OP No. 1 on 13-08-2012.  Total cost of the said car was fixed at Rs. 10,28,233/-.  He booked the said car by paying booking amount for a sum of Rs. 4,47,719/-.  It was agreed upon in between the parties that rest of the consideration amount of the said car, i.e., Rs. 5,80,514/- would be paid by the financier and on receipt of the same, the car would be delivered.  Accordingly, the OP No. 2 was roped in, who issued necessary release order on 29-08-2012.  It is alleged that despite receipt of full payment of the car in question, the OP No. 1 did not deliver the car to the Complainant.  Although later on a cheque for an amount of Rs. 4,47,719/- was issued by the OP No. 1, but as ill luck would have it, the same got bounced due to insufficient fund in the account of the issuer of said cheque.  Legal notice served for this purpose also did not yield any positive result.  In such circumstances, Complainant filed the case before the Ld. District Forum. 

OP No. 1 contested the case by filing WV.  It is the case of this OP that it did not owe any money to the Complainant.  The payment of Rs. 4,47,719/-, which was paid by the Complainant to the OP No. 1 was returned to the Complainant.  The model of the car, as booked by the Complainant, was not readily available. So, the Complainant was asked to wait for 2/3 months, to which the Complainant agreed.  However, subsequently, the Complainant cancelled the booking and sought refund of Rs. 10,28,233/-. Such refund was made in cash against money receipt signed by the Complainant.  Thereafter, the OP No. 1 faced certain financial difficulties as a result of which, winding up petition was filed by a creditor before the Hon’ble High Court at Calcutta.  By order dated 15-01-2013, the Hon’ble High Court was pleased to admit the winding up petition.  Later on, vide its order dated 26-03-2013, the Hon’ble Court was pleased to pass final order of winding up of the OP No. 1 and Official Liquidator, High Court, Calcutta, took actual physical possession of the assets, properties and books of accounts, and documents of the OP No. 1.  Possession of the registered office of the OP No. 1 was also taken.  The Official Liquidator sealed the registered office and took away all records, and books of accounts of the OP No. 1.  The OP No. 1 preferred an appeal before the Hon’ble Division Bench, High Court at Calcutta against the final order of winding up.  In terms of the order dated 24-04-2013 of the Hon’ble Appeal Court, payments are being regularly made by the OP No. 1.  The Hon’ble Division Bench was pleased to stay the winding up and direction was passed on the Official Liquidator, High Court, Calcutta to remove its padlock from the registered office of the OP No. 1 and handover the same to the latter.  Subsequently, the said Official Liquidator returned possession of the registered office to the OP No. 1.  Allegedly, although possession was returned, but books of accounts, documents and correspondence were not returned.  Thanks to due perseverance on the part of the OP No. 1, some of the documents and papers were returned by the Official Liquidator, but majority of them are still lying in the custody of the Official Liquidator.  The Official Liquidator is acting as a Special officer of the OP No. 1 in terms of the order dated 24-04-2013.  The OP No. 1, despite thorough searching, could not locate the money receipt in question whereby a sum of Rs. 10,28,233/- was  returned to the Complainant.  There is no deficiency in service on the part of this OP and as such, it prayed for dismissal of the complaint case.

The case of the OP No. 2, on the other hand, is that, the Complainant in his petition of complaint has admitted the fact that this OP has paid the loan amount to the OP No. 1 and also requested it to release the vehicle in favour of the Complainant.  The Complainant approached the OP No. 2 for loan and accordingly, this OP granted necessary loan.  Delivery of vehicle is not the job of this OP.  Hence, the claim made by the Complainant against the OP No. 2 is unjustified and accordingly, this OP too prayed for dismissal of the case.

Point to be considered in this appeal is whether the impugned order is justified or not.

Decision with reasons

We have heard the submission made by respective Ld. Advocates of the parties.  Ld. Advocate for the Respondent No. 1 referred to two decisions of Hon’ble Supreme Court reported in 2016 (1) CPR 437 (SC) and AIR 1994 SC 853.

The present dispute primarily revolves over the fact as to whether or not the Appellant has refunded the price of the car amounting to Rs. 10,28,233/- to the Respondent No. 1.

It is claimed by the Appellant that it refunded the entire sum of Rs. 10,28,233/- to the Respondent No. 1 in cash, but it is not in a position to place the concerned money receipt on record as the same is still lying in the possession of the Official Liquidator.  On the other hand, it is alleged by the Respondent No. 1 that the Appellant has not refunded a single penny to him.  What is worse, although the Respondent No. 1 issued cheque worth Rs. 4,47,719/- to him, the same got bounced.

In the case in hand, it is not in dispute that the Respondent No. 1 has paid a sum of Rs. 10,28,233/- to the Appellant towards price of the car in question.  It is also not in dispute that the car in question has not been delivered to the Respondent No. 1 by the Appellant.  In such circumstances, it was obvious that the price of the car be returned to the prospective buyer. 

In this regard, it is claimed by the Appellant that it has returned the entire money to the Respondent No. 1 in cash, which has, however, been vehemently denied by the latter. Given that it is the settled position of law that burden of proof lies with the claimant and the party that does not carry the burden of proof carries the benefit of assumption, needless to mention, the onus of proving bona fide of its claim as stated above rested with the Appellant. 

As we find, the Appellant has cut a sorry figure in this regard, - it has failed to place on record the concerned money receipt in order to substantiate its claim. Further, there is every reason to believe that the sum being quite substantial, it was duly accounted for in the concerned books of accounts.  Nothing of this sort has either been placed on record to fortify the claim of the Appellant in this regard. The contention of the Appellant that since the same stood in the possession of the Official Liquidator appointed by the Hon’ble High Court, it was not in a position to place the same before the Ld. District Forum, is also not at all tenable.  Let us not forget that where there is a will, there is a way.  If it had the slightest inclination to produce the same before the Ld. District Forum, it could have easily requisitioned the same from the said Official Liquidator.  For some inexplicable reasons, the Appellant simply kept quite till date.  Be that as it may, fact remains that no cogent documentary proof was adduced before the Ld. District Forum to show that the money, as claimed, was indeed paid to the Respondent No. 1 by the Appellant. Therefore, to our mind, it is futile to pick hole with the impugned order, whereby the Appellant has been directed by the Ld. District Forum to refund Rs. 10,28,233/- to the Respondent No. 1. 

It further appears from the materials on record that the Appellant issued cheque worth Rs. 4,47,719/- to the Respondent No. 1, but the same got dishonoured due to insufficient balance.  Surprisingly, no explanation has been assigned by the Appellant, when it claimed to have paid the sum of Rs. 10,28,233/- to the Respondent No. 1 in cash, what prompted it to issue further cheque of Rs. 4,47,719/-. If for the sake of argument, it is assumed that the said cheque of Rs. 4,47,719/- was issued prior to alleged payment of Rs. 10,28,233/- to the Respondent No. 1 in cash, quite naturally question would arise, as to why did it issue cheque for an amount of Rs. 4,47,719/- only instead of Rs. 10,28,233/-.  The logic that since this amount was paid by the Respondent No. 1 as booking money, it issued cheque for a sum of Rs. 4,47,719/- hardly holds any water as there is nothing to show that cheque for the balance amount was sent to the Respondent No. 2 by it. Moreover, if it indeed felt that since the Respondent No. 1 paid only a sum of Rs. 4,47,719/-  from his own coffers out of the total price of the car, i.e., Rs. 10,28,233/-, he was entitled this much amount only, the Appellant definitely owe proper explanation as to why did it at all paid back the entire price of the car to the Respondent No. 1, as claimed by it.  

Thus, from whatever angle we look at it, there seems no valid reason to believe the contention of the Appellant.  In fact, documents on record clearly manifest that the Appellant has not approached us with clean hands.  In such facts and circumstances, we see no reason whatsoever to intervene with the impugned order in any manner and accordingly, the same is upheld in toto.

Consequent thereof, the appeal fails.

Hence,

O R D E R E D

that A/269/2015 be and the same is dismissed on contest against the Respondents but without any costs.