Presented by Miss R. Pattnayak, President .
(1) The case of the Complainant is that, he was intending to take a Mini-harvester on finance basic and accordingly had requested the Opposite Party No.1(one) (In short Opposite Party No.1) to provide him necessary loan amount for purchase of the Mini-harvester through the Opposite Party No.2(two) who is the authorized dealer. As per the direction of the Opposite Party No.1(one), an amount of Rs.5,000/-(Rupees five thousand)only and Rs.40,000/-(Rupees forty thousand)only were deposited before Opposite Party No.2(two) on Dt.19/01/2011 and Dt.12/03/2011 respectively. After obtaining necessary papers for loan from him, the Opposite Party No.1(one) sanctioned Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only and give direction to the Opposite Party No.2(two) for supply of a Mini-harvester after received of necessary quotation. Althrough the Opposite Party No.2(two) received the draft amount of Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only towards the supply of the mini-harvestor to him, but failed to supply the same within the stipulated period and accordingly the above deposited amount of Rs.45,000/-(Rupees forty five thousand )only made by the Complainant was refunded by Opposite Party No.2(two) but he failed to refund the draft amount of Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only to the Complainant due to non-supply of the above mini-harvestor till date which is nothing but deficiency of service and equally the same amount to unfair trade practice in the part of Opposite Party No.2(two). In the mean while, the Complainant received a demand Notice from Opposite Party no.1(one) where in an amount of Rs.2,11,160/-(Rupees two lakh eleven thousand one hundred sixty)only claimed by Opposite Party No.1(one) towards the loan amount for mini-harvestor. There after the Complainant send pleader Notice to the Opposite Party No.1(one) and 2(two) on Dt.26/02/2013 with a reply from Opposite Party No.1(one) only but Opposite Party No.2(two) did not give any reply. Further the Complainant submitted that from the reply of the Opposite party No.1(one), it reveals that necessary quotations submitted by M/S-udyomita, Sakhipada, Sambalpur for the purpose of supply of the afore-said Mini-harvestor to the Complainant and it further reveals that a draft of Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only issued by Opposite Party No.1(one) in favour of the Complainant through Axis Bank, Bargarh, but the same draft amount never collected by him but the same was collected and with drawn by Opposite Party No.2(two) by the active connivance of the then secretary of opposite party No.1(one) namely Baisampana Dash and the same utilized by the Opposite party No.2(two) for his personal gain. For such unfair trade of practice as well as deficiency of service of the opposite party no.2(two), he sustained a huge loss for which he filed this case before this forum with the following prayer :-
To direct the opposite Party No.2(two) to either supply the mini-harvestor or in the alternative refund the amount of Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only with interest accrued therein.
To direct Opposite party No.2(two) to pay Rs.1,50,000/-(Rupees one lakh fifty thousand)only as compensation towards loss sustained by the Complainant.
To direct the Opposite Party No.2(two) to pay Rs.10,000/-(Rupees ten thousand)only as litigation expenses to the Complainant to meet the end of Justice.
(2) In support of his case, the Complainant has filed the following documents along with a citations reported in A.I.R. 1981 SC 2085 :-
Copy of money receipt Dt.19/01/2011 granted by Opposite party No.2(two) in favour of the Complainant for an amount of Rs.5000/-(Rupees five thousand)only.
Copy of money receipt Dt.12/03/2011 granted by Opposite party No.2(two) in favour of the Complainant for an amount of Rs.40,000/-(Rupees forty thousand)only.
Copy of order for on Dt.19/01/2011 granted by Opposite Party No.2(two) in favour of the Complainant.
Visiting card of Binaya Kumar Bishi supplied to the Complainant showing there in his details of address.
Demand Notice issued by opposite Party No.1(one) against the Complainant showing payment of Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only to complainant towards mini-harvestor.
Office copy of Regd. Letter send to Opposite parties on Dt.26/02/2013 by Tuna Mahakud, Advocate, Bargarh.
Money receipt granted by postal Authority showing dispatched of above Regd. Letter Dt.26/02/2013 to Opposite Party No.1(one) and 2(two).
Regd. Letter Dt.26/02/2013 send to afore-said Binaya Kumar Bishi which was received back with A.D.
Reply letter send on behalf of Opposite party No.1(one) through Advocate R.K. Satpathy Dt.20/05/2013.
(3) Notice were duly served upon the Opposite parties. Opposite Party No.1(one) appeared on Dt.05/08/2013 and filed his written version on Dt.07/10/2013. Opposite party No.2(two) did not appear inspite of paper publication made through local daily News paper against them and hence, Set ex-parte on Dt.19/08/2014.
(4) The Opposite Party No.1(one) in his written version while denying the jurisdiction of this forum as the dispute is covered under the Orissa-Co-Operative Societies Act has submitted that the Complainant has applied for an agricultural loan on Dt.12/05/2011 and it is duly sanctioned by the Branch Manager, S.D.C.C., bank Ltd, Tora branch. The Complainant executed the security documents of the society and received a sum of Rs.1,89,000/-(Rupees one lakh eighty nine thousand)only. As per advice of the Complainant a demand draft of Rs. 1,89,000/-(Rupees one lakh eighty nine thousand)only was handed over to the Opposite party No.2(two) vide D.D. No.100835 as against order No.18/02 Dt.19/01/2011. The Complainant in token of acceptance of Rs. 1,89,000/-(Rupees one lakh eighty nine thousand)only executed all the required security documents and the Opposite party No.2(two) has submitted the acknowledgment of receipt of the amount. It is further submitted by the Opposite party No.1(one) that the Complainant in order to avoid the payment has filed this case against him, hence prayed for dismissal of the case with cost.
(5) In support of his case , the Opposite party no.1(one) has filed the following documents :-
Copy of Quotation / Order No.18/02 Dt.19/01/2011.
Copy of Loan application form.
Copy of sanction letter.
PACS form No.26(b).
Copy of order of the loan committed.
Copy of receipt No.55 Dt.18/05/2011 of Udyomita.
Copy of Loan-cum-Hypothication agreement.
Copy of Demand promissory Note dt.18/08/2011.
Copy of D.P Note delivery letter.
Copy of letter of acceptance.
Copy of PACS form No.24.
Copy of C.M Bond. (Continuing Mortgage Bond)
(6) Heard arguments from the parties and perused the documents available in the case record. On perusal of the record, we found that order placed for mini-harvestor vide order form No.18/02, Dt.19/01/2011 for which the Opposite party No.2(two) has taken Rs.5000/-(Rupees five thousand)only vide money receipt no.48 and Rs.40,000/-(Rupees forty thousand)only vide money receipt No.51, Dt.12/03/2011 from the Complainant . Further the money receipt No.55, Dt.18/05/2011 clearly reveals that Opposite party No.2(two) has received Rs. 1,89,000/-(Rupees one lakh eighty nine thousand)only vide D.D. No. 100835 Dt.18/05/2011 from the Opposite party No.1(one) against he said order No.18/02 Dt.19/01/2011. The visiting card clearly reveals that Binaya Kumar Bishi who received the above amounts is the proprietor of M/S-Udyomita. So the above documents clearly discloses that order placed for Mini-harvestor for which price was paid but delivery not made. It is evident that there was a Completed contract between the parties. In pursuance of the order placed by the Complainant on the Opposite party No.2(two) vide order No.18/02 Dt.19/01/2011, the Opposite party No.2(two) has to supply the Mini-harvestor to the Complaint. From the letter it emerges that the terms contained in the letter that the Delivery of mini-harvestor is within 45(forty five) days from the date of order/ advance, but Opposite Party did not supply the Mini-harvestor within stipulated time. When payment was made to Opposite party No.2(two), he is obliged to supply the Mini-harvestor. This clearly shows not only gross deficiency but also will ful-misconduct and fraudulent practice on the part of Opposite party for which the Complaint is entiled for compensation. Even after depositing the amount , the Mini-harvestor could not be supplied. Therefore the Opposite party was not justified in not supplying all the Mini-harvestor and although the Opposite Party No.2(two) refunded the Rs.45,000/-(Rupees forty five thousand)only but failed to refund Rs.1,85,000/-(Rupees one lakh eighty five thousand)only, Opposite Party No.2(two) can not grab the money of the Complainant with out supplying the Mini-harvestor. The Opposite Party No.2(two) has intentionally avoided to remain present before the Forum inspite of several opportunities given to him to plead. Considering this circumstantial evidence forum accepted the version of the Complainant and came to conclusion that the Opposite Party has given promise to give new Mini-harvestor but failed to do so. Although refunded Rs.45,000/-(Rupees forty five thousand)only but failed to refund Rs. 1,89,000/-(Rupees one lakh eighty nine thousand)only and hence the Opposite Party is held guilty of adopting unfair trade practice under section 2(i) (r) of Consumer Protection Act and committed fraud. Although the Complainant has mentioned in his written argument that he is having 5(five) acres of irrigated land but he has not filed any documentary evidence regarding this 5(five) acres of land and exact loss and also it is beyond his pleading.
Further it is the admitted fact of Complaint that he has taken an agricultural loan of Rs. 1,89,000/-(Rupees one lakh eighty nine thousand)only for purchase of Mini-harvestor for which demand notice for an amount of Rs.2,11,160/-(Rupees two lakh eleven thousand one hundred sixty)only was received by the Complainant. The Complainant submitted that since the Opposite Party No.1(one) is the financing authority, for proper adjudication of the case he made party to him. We also perused that, the Complainant has not prayed for any relief from the Opposite Party No.1(one). Hence the Opposite party No.1(one) is discharged from all liabilities.
Hence Ordered :
O R D E R
The Opposite party No.2(two) is here by directed to refund the draft amount of Rs. 1,89,000/-(Rupees one lakh eighty nine thousand)only with interest @ 13.5% per annum from Dt.18/05/2011 to till the date of realization to the O.P no.1 since the op. No.2 has received the amount from Opposite Party No.1(one) vide money Receipt no. 55 dated 18.05 .2011.
Further The Opposite Party No.2(two) is directed to pay compensation of Rs. 5,000/-(Rupees five thousand) only to the Complainant towards mental agony, harassment and litigation expenses within one month from the date of Order failing which the awarded amount shall carry interest @15%(fifteen percent) per annum till actual realization.
The Opposite Party No.1(one) is discharged from all liabilities and is directed to close the loan account of the complainant after receiving the loan amount as per order No.1(one).
Case is disposed off.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Smt Anjali Behera) (Sri Pradeep Kumar Dash) (Miss Rajalaxmi Pattanaik)
M e m b e r. M e m b e r. P r e s i d e n t.
