BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.31/2012

Dated this the 27^th day of February 2018

(Date of Institution: 15.10.2012)

R. Ganeshram, son of T.V. Ragavan                        

No.6, Vyassar Street, Kennedy Garden         

Muthialpet, Puducherry – 605 003.

….     Complainant

Vs

1. The Manager,                                

    ICICI Bank Ltd.,                         

    Mission Street, Puducherry – 605 001.

2. The Manager,                         

    Shriram City Union Finance Limited

    No. 19, Second Floor, Sivam Towers

    Near Indira Gandhi Statue,           

    Villianur Road, Puducherry – 605 005.

3. The Manager

    Shriram City Union Finance Limited

    No.15, Second Floor, Rangapillai Street,

    Puducherry – 605 001.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S. Vimal, Advocate            

FOR THE OPPOSITE PARTIES:  Tmt. S. Suganthi,  Advocate for OP1

                                                          Thiru G. Murugaiyan, Advocate for OPs 2

and 3

O R  D  E  R

(by Tmt. D. Kavitha, Member)

              This is a complaint filed by the complainant us 12 (1) of Consumer Protection Act for directing the Opposite Parties for return of RC Book along with cancellation of the hypothecation entry in the RC Book, issue of NOC by OPs 2 and 3; to pay a sum of Rs.1,00,000/- towards compensation for mental agony by OPs 2 and 3; to pay a sum of Rs.1,00,000/- towards compensation for mental agony by OP1; and cost of Rs.20,000/- from the opposite parties.

2.  The case of the complainant is as follows:

          The Complainant submitted that he availed a vehicle loan from OP2 for the purchase of Scooty Pep bearing Regn. No. PY BB 3927 on 26.04.2010.  The loan was repayable in 23 EMIs at the rate of Rs.1413 commencing from 07.06.2010 to 07.04.2012.  He had a Savings Bank Account No. 005601016690 with OP1 Branch and he issued 23 cheques towards the monthly EMI to OP2.  His bank account was '0' balance account.  On no occasion, the cheque issued by him was returned for want of money.  While so, OP2 contacted him over phone on 29.12.2011 informing him that the cheque No.099200 dated 07.12.2011 for Rs.1413 was returned by the bank for the reason of 'insufficiency of balance in his account' and OP2 asked him to pay the said instalment of Rs.1413 along with penalty of Rs.500 in cash.  The complainant immediately went to OP1 branch and questioned the bank officials as to why his cheque was returned even while there was sufficient fund to honour the cheque and asked the bank to undertake to pay the penalty of Rs.500 for the wrongful dishonour of cheque.  The bank officials picked up a quarrel with him and abused him with filthy language and as a result, the complainant informed the bank officials that he would file consumer complaint against them.  Thereafter, he went to OP2 office to pay the amount of Rs.1413 along with penalty of Rs.500/- and asked them to return the bounced cheque for which OP2 informed him to collect the bounced cheque from OP3 office after paying the amount to OP2 branch.  The complainant told OP2 that it was the duty of the OP2 to return the bounced cheque to him where he pays the amount.  He was dodged for more than 47 occasions without returning the bounced cheque to him and he had to spent more than 1000 rupees for petrol expenses and he was subjected to mental agony.  OP2 never returned the bounced cheque to him.  When he informed them that he would filed consumer complaint against them, the officials in OP2 office came to assault him and they abused him in filthy language and further they held out a threat saying as to how he gets NOC from them.  Two days later, when he was away from Home to his workplace, two persons from OP2 came to his house and informed his father that they would eliminate the complainant, if he file consumer case against them.  Hence, the complainant prayed for return of RC Book along with cancellation of the hypothecation entry in the RC Book, issue of NOC by OPs 2 and 3 along with compensation of Rs.1,00,000 by them for mental agony.  The complainant further prayed for compensation of Rs.1.00 lakh from OP1 and cost of Rs.20,000/- from the opposite parties. 

3. The reply version filed by the first opposite party briefly discloses the following:

          The complaint is not maintainable either in law or on facts.  In order to achieve unlawful gains through suppression of material facts, has approached this Forum with unclean hands.  The entire complaint is only as against the second and the third opposity party and the first opposite party is having no say / not connected with any of the allegations raised by the complainant over the second and third opposite parties.  The cheque bearing Regn. No. 099200 dated 07.12.2011 amounting to Rs.1,413/- was returned due to the signature of the complainant did not tally.  This opposite party denied that the cheque was returned for insufficiency of funds.   This opposite party is not aware about whether the second and third opposite parties had returned the original cheque to the complainant along with memo of return.  The first and third relief are only as against the second and third opposite parties.  As the cheque has been returned only for want of correct signature, claiming compensation as against the first opposite party without any cause of action and without understanding the Banking Procedures clearly shows that the complaint has been filed against this opposite party to achieve unlawful gains.  Hence, prayed for dismissal of the complaint. 

4.  Points for determination are :

1. Whether the complainant is a Consumer
2. Whether the Opposite Parties attributed deficiency in service or unfair trade practice
3. Whether the complainant is entitled for any relief                       

5. We have perused the complaint and reply versions filed by both parties and heard the arguments submitted by the Counsels.  There was no oral evidence on the side of the complainant.  Exs.C1 to C10 were marked.  On the side of Opposite Parties 2 and 3 one R. Palanivelu Murugan, Legal Officer was examined as RW1 and Exs.R1 to R3 were marked.  One Veera Thilipan, Assistant Manager, ICICI Bank was examined for OP1 side as RW2 and Exs.R4 and R5 were marked. 

          6. Point No.1:

          On perusal of Ex.R1, this Forum confirmed that the complainant has availed loan from OP3 for an amount of Rs.26,390/- on 26.04.2010 for the purchase of two wheeler.  The complainant agreed to repay the same  as EMI at the rate of Rs.1,413/- per month for which the complainant had issued 23 cheques of OP1 bank where the complainant has an account.  Hence, the complainant is considered to be a consumer to the Opposite Parties. 

          7. Point No.2:

          The complainant stated that he has given 23 cheques in favour of OP2 and OP3, the Sriram City Union Finance Limited to purchase a two wheeler (scooty pep) – PY 01 BB 3927) under an agreement to repay the EMI for a sum of Rs.1,413/- per month from 7.6.2010 to 7.4.2012.  As such, the OP3 realized the cheque amount from 07.06.2010 without any default.  On 29.12.2011 the complainant has received phone call from OP2 that the cheque No. 099200 dated 07.12.2011 has been returned due to insufficient fund and directed to make payment of dishonoured cheque amount of Rs.1,413/ with penal amount of Rs.500/- in totaling Rs.1913/-.  When the complainant enquired in OP1 bank about the dishonoured cheque, he came to know that there was sufficient fund available in his account.  Therefore, the complainant asked the OP1 they have to bear the bouncing charges because OP1 has returned the cheque when sufficient fund is available in his account vide Ex.C1.  For which, OP1 refused.  Subsequently, the complainant went to the office of the second opposite party, he was directed to make payment and to receive the bounced cheque from the office of the third opposite party.  The complainant alleged that he had visited 27 times before the office of the second opposite party for demanding return charges and spent Rs.1000/- for fuel charges for his vehicle.  But, the OP2 never come forward to return the bounced cheque, on contrary stated that the cheque was misplaced.  Since the OPs made the complainant to run pillar to post and caused mental agony, the complainant sent a letter to 2^nd and 3^rd opposite parties vide Exs.C3 and C5 dated 09.02.2012.  ex.C4 and C6 are the AD cards for exs.C3 and C5 dated viz. 11.2.2012 and 10.02.2012.  Again the complainant sent a letter to OP2 vide Ex.C7 dated 18.04.2012, ex.C8 is the AD card for Ex.C7 dated 20.04.2012.  Ex.C9 is the letter to OP1 dated 09.05.2012, Ex.C10 is the AD card for Ex.C9.  Ex.C2 is the statement of customer details.

          8. On the other hand, OPs 2 and 3 admitted that the complainant availed loan for an amount of Rs.26,390/- vide Ex.R1 and agreed to repay the same for a sum of Rs.1,413/- per month from 07.06.2010 to 07.01.2012.  The OPs 2 and 3 stated that the complainant agreed to pay the finance charges, insurance deposits, security deposit, advance EMI Amount, overdue interest and bouncing charges in case of returned of cheque.  As agreed upon, the complainant took vehicle for loan.  Every month OP2 is used to remind the complainant to maintain sufficient balance in his account where the complainant maintains his account in OP1 bank.  While so, the cheque bearing No. 099200 dated 07.12.2010 for an amount of Rs.1,413/- was returned vide Ex.R2 by the first opposite party without realisation of loan amount for the reason that the signature of the complainant was differs vide Ex.R3 dated 06.04.2015.  The first opposite party also issued return memo mentioning the reason.  Subsequently, OPs 2 and 3 informed the same to the complainant through phone and requested the complainant to make payment of arrears of amount due on the dishonoured cheque of Rs.1,413/- and Rs.500/- towards bouncing charges and Rs.944/- towards overdue charges totaling a sum of Rs.2,857/-.  The complainant also agreed to pay the same within two days but he did not do so.  The OPs 2 and 3 further submitted that if the complainant comes forward to make the balance amount of Rs.2,857/- with subsequent interest as on date, the OPs 2 and 3 are ready to return the RC, NOC and other related documents.  Hence, OPs 2 and 3 are not liable for any compensation and prayed to dismiss the complaint.

          9. The first OP submitted that the entire complaint is only against OP2 and 3 and OP1 is not connected with any allegation of the complainant.  The OP1 is always clearing the cheque of the complaint to Rs.1,413/- from  07.06.2010 towards the repayment of EMI.  When the cheque bearing No.099200 dated 07.12.2011 amounting to Rs.1413/- came for clearing, the signature of the complainant found in the cheque did not tally and hence, the cheque was returned to the Bank Sriram City Union Finance Ltd., (OP2) with an intimation memo.  Therefore, the OP1 objected the allegation of the complainant that the cheque was returned for insufficiency of funds.  Therefore, prayed to dismiss the complaint as against OP1.

          10. From the arguments submitted by the Counsels and the documents presented by the parties, this Forum observed that the complainant has availed loan from OP2 and OP3, for purchase of a two wheeler.  The complainant was regular in making the monthly instalments (EMI) without any default except the impugned cheque dated 07.12.2011.  It was also returned for the reason "signature differs" as per the reply given by the OPs.  The impugned cheque which was returned by OP1 to OP2 and OP3 is not yet produced before this Forum.  Even the copy filed by OP 2 and 3 (Ex.R2 dated 07.12.2011) is not contained any seal of OP1 bank in page 1 and 2.  Hence, Ex.R2 is considered as an unauthenticated documents by this Forum.  To confirm this RW2 in his cross examination admitted that

Generally, it should mandatorily consists of our seal and signature, both on the cheques as also return memo. 

As per ExC1 no charges imposed for return of cheque and also no entry about the deposit or return.  In Ex.R3, the cheque return date is mentioned as 05.12.2011.  This is very contrary to the impugned cheque where the date is mentioned as 07.12.2011.  Hence, the reason given by OP1 and OP3 cheque returned for signature differs is not proved with genuine documents.  In Ex.R4 dated 17.02.2017 not certified to be the true extract of the original and Ex.R5 is the copy of the Return memo wherein OP1 failed to produce the original ledger before this Forum.  Hence, R5 is not taken into consideration. 

          11. On perusing Ex.C3 and Ex.C5 dated 09.02.2012 and Ex.C7 dated 18.04.2012, it is very clear that the complainant duly intimated to OPs 2 and 3 his willingness to pay the cheque amount with penal charges by receiving the bounced cheque.  But the OPs 2 and 3 after receiving the same, did not give any reply to the complainant.  It amounts to admission.  The complainant issued a letter vide Ex.C9 to OP1 dated 09.05.2012 but no reply on the side of OP1.

          12. Therefore, this Forum observed that the complainant is ready to make the payment of dishounoured cheque with penal interest on receiving the bounced cheque.  But the OPs never come forward to return the dishonoured cheque and also RW1 adduced in his evidence that we are unable to trace the complainant's cheque which was bounced.  Thus the complainant has proved his genuinenity and the mental agony caused to him by the opposite parties due to deficiency in service and unfair trade practice.  Therefore, the complainant is entitled for the reliefs.

          13. In view of the discussion made supra, it is held that the OPs 2 and 3 are liable for the hardship and mental agony suffered by the complainant due to deficiency in service and also unfair trade practice.  No relief as against OP1 since they have not committed any deficiency in service.

          14. Point No.3:

          In the result, the complaint is hereby allowed only against OP2 and OP3 and dismissed against OP1 and the OPs 2 and 3 are directed to

1. Return the bounced cheque dated 07.12.2011 by receiving the due amount of Rs.1,413/-.  On failure to return the bounced cheque, the OPs 2 and 3 are directed to issue a certificate in this regard. 
2. Return the (i) the R.C. Book with cancellation of Hypothecation;
   (ii) issue No Due Certificate;
3. To pay a sum of Rs.20,000/- towards compensation for deficiency in service and unfair trade practice.
4. To pay a sum of Rs.5000/- towards cost of this complaint.

Dated this the 27^th day of February  2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  NIL

OPPOSITE PARTIES WITNESS:  

RW1           07.05.2015           R. Palanivelu Murugan

RW2           14.06.2017           Veera Thilipan

COMPLAINANTS EXHIBITS:  

OPPOSITE PARTYS EXHIBITS:   

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER