Complainant/s:              1. Basavaraddi S/o Venkaraddi Radder

                                         Age: 59 Years, Occ: Agriculture R/o

                                                Sasarawad Taluk:Shirahatti Dist:Gadag.

                                                   (Rep. by Sri.S.K.Patil, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SMT. YASHODA BHASKAR PATIL, MEMBER:

    The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019 against Opponent (Herein after referred as OP) seeking relief for refund of Rs.7,26,396/- with interest @ 18% p.a. from
December-2020 till realization and Rs.1,00,000/- towards mental agony and cost of  litigation.

The brief facts of the complaint are as under:-

         2.  The complainant is a resident of Sasarawad village, Shirahatti Taluk Dist:Gadag. He is an agriculturist by avocation and his lands are situated at Sasarawad village.  He was growing sugar cane crop in his lands and used to send the said crop to the factory of Op.  In the month of December-2020 as per ryot wise supply the sugar cane crop to Op factory is of 353.389 tons. As per the prevailing rate complainant is entitled to get total sum of Rs.7,42,117/-,  against the said amount, he has received only Rs.15,721/- and the balance of Rs.7,26,396/- has to be paid to the complainant by Op. The complainant has approached the Op to refund the said balance amount.  Op has not responded, then the complainant got issued a legal notice on 23.12.2021 through his counsel to refund the balance amount. In reply notice the Op has falsely contended that Rs.6,47,860/- has been deducted, as one Choudanayak has received a loan amount of Rs.6,00,000/- from Op, the amount of complainant is adjusted towards the loan, as complainant is a surety to the agreement of Choudanayak and complainant has executed an agreement along with authorization letter on behalf of Choudanayak. Complainant further stated that, he being a farmer not knowing English language, taking undue advantage of, the Op has taken some signatures on the blank papers from the complainant. The Op has already filed criminal complaint No.313/2020 before the JMFC, Court Mundargi U/Sec.138 of NI Act, against the said Choudanayak for recovery of Rs.6,49,932/- and without any reasons Op has deducted Rs.6,47,860/- and another sum of Rs.5,536/- from the complainants account which is unfair trade practice made by Op. Therefore, Op who received the sugar cane from complainant is bound to make payment of Rs.7,26,396/- to the complainant with interest. So Op has committed the deficiency of service. Hence, filed this complaint.   

          3. After admitting the complaint, notice was issued to the Op, who appeared through his counsel and filed the written version.

          4.     The brief facts of written version of Op is as under:

          The Op denied the allegations made in the complaint and contended that, one Choudanayak contractor had entered into an agreement of contract and agreed to harvest and transport the sugar cane for crushing season 2020-21 by executing the agreement on 04.06.2020 and received an advance amount of Rs.6,00,000/- and the complainant has stood surety to the said agreement.  The contractor has failed to keep present their workers at the site of factory in order to execute the contract agreement due to that reason the Op requested the said contractor to repay the advance amount received by contractor and he has failed to perform according to the contract agreement.  The complainant who is supplier of sugar cane to Op factory and the said bill of sugar cane supplied by complainant is  adjusted and held towards the entire advanced amount with interest received by the contractor until the payment is made by him towards advanced amount of Rs.6,47,860/- as per terms and conditions of agreement. The Op submits that, he has lodged the complaint against the Choudanayak by filing complaint No.313/2021 on 23.03.2021 U/Sec.138 of Negotiable Instrument Act, to recover the advanced amount received by the said contractor.  Thus, the complainant is liable to pay the advanced amount received by the said contractor with interest and liable to pay jointly and severally.   Therefore, there is no deficiency of service committed by the Op and no cause of action arose to the complainant to initiate the legal proceedings against the Op.  Hence, prays to dismiss the complaint.

          5.  To prove the case, the complainant has filed affidavit evidence and was examined as PW-1 and got the documents marked as  Ex.C-1 to Ex.C-7. On the other hand
Sri. Murlidhar Despande has filed the affidavit evidence for Op and got marked the documents as Ex.Op-1 to Ex.Op-16

  
          6. Heard, the arguments on both sides.

          7. The points for consideration are,

                   1. Whether the complainant proves the deficiency of                        service committed by the Op?

                   2. Whether the complainant is entitled for the reliefs

                     sought for?

                   3. What order?

          8.  Our findings on the above points are as under:

               Point No 1. In the affirmative.

               Point No 2. In the partly affirmative.

              Point No 3. See final order.

REASONS

9 .Point No.1 and 2: The point No.1 and 2 are taken together to avoid the repetition of facts.

The learned counsel for complainant vehemently argued that, as per evidence of PW-1 and Ex.C-1 to Ex.C-7 complainant proved that, deficiency of service is committed by Op and entitled for the relief. The learned counsel for Op argued that, as per documents complainant is a surety to one Choudanayak contractor of Op and they have rightly withheld the amount and no deficiency of service is committed by the Op.

          10. On careful perusal of material placed before the Commission, PW-1 has filed affidavit in lieu of chief examination and reiterated the contents of the complaint. PW-1 has stated that, he was growing sugar cane crop in his lands and used to send the said crop to the factory of Op.  In the month of December-2020 as per ryot wise supply the sugar cane crop sent to Op factory is of 353.389 tons. As per the prevailing rate complainant is entitled to get total sum of Rs.7,42,117/-.  Against the said amount, he has received only Rs.15,721/- and the balance of Rs.7,26,396/- has to be paid to the complainant by Op.  The complainant has approached the OP requesting to refund the said balance amount, Op has not responded and then the complainant got issued a legal notice on 23.12.2021 through his counsel to refund the balance amount. In reply notice the Op has falsely contended that Rs.6,47,860/- has been deducted, as one Choudanayak has received a loan amount of Rs.6,00,000/- from Op, the amount of complainant is adjusted as complainant is a surety to the agreement of Choudanayak and complainant has  also executed an agreement along with authorization letter on behalf of Choudanayak. Complainant further stated that, he being a farmer and not knowing English language, taking undue advantage Op has taken some signatures on the blank papers from the complainant. The Op has already filed criminal complaint No.313/2020 before the JMFC, Court Mundargi U/Sec.138 of NI Act, against the said Choudanayak for recovery of Rs.6,49,932/-. Without any reasons Op has deducted Rs.6,47,860/- and another sum of Rs.5,536/- from the complainants account which is unfair trade practice committed by Op. Therefore, Op who received the sugar cane from complainant is bound to make payment of Rs.7,26,396/- to the complainant with interest. So, Op has committed the deficiency of service.

          11. Per contra, RW-1 has filed affidavit and reiterated the contents of the written version filed by the Op. RW-1 has stated that, the Op denied the allegations made in the complaint and contended that, one Choudanayak contractor had entered into an agreement of contract, agreed to harvest and transport the sugar cane for crushing season 2020-21 by executing the agreement on 04.06.2020 and received an advance amount of Rs.6,00,000/- and the complainant has stood surety to the said agreement.  The contractor has failed to keep present their workers at the site of factory in order to execute the contract agreement due to that reason the Op requested the said contractor to repay the advance amount received by contractor and as he has failed to perform according to the contract agreement.  The complainant who is a supplier of sugar cane to Op factory and the said bill of the sugar cane supplied by complainant be adjusted and held towards the entire advanced amount with interest received by the contractor until payment is made by him towards the advanced amount of Rs.6,47,860/- as per terms and conditions of agreement. The OP submits that, he has lodged the complaint against the Choudanayak by filing complaint No.313/2021 on 23.03.2021 U/Sec.138 of Negotiable Instrument Act, to recover the advanced amount received by the said contractor.  Thus, the complainant is liable to pay the advance amount received by the said contractor with interest and liable to pay jointly and severally.   Therefore, there is no deficiency of service committed by the Op and no cause of action has arose to the complainant to initiate the legal proceedings against the Op.

          12. It is not disputed facts by the Op that, complainant is the owner of the land as per RTCs Ex.C-1 to Ex.C-3, he was grown the sugar cane of 353.389 tons and supplied to the Op factory, a sugar cane worth of Rs.7,42,117/-. Ex.C-4 ryot wise supply details and Ex.C-5 bill number of complainant are also not disputed by the Op. The main contention is that as the complainant stood surety to one Choudanayak contractor and executed the surety document and consent letter, they have withheld the amount of complainant. According to the complainant, he never agreed to stand surety to Choudanayak and executed the surety and consent letters. He has contended that, he being an agriculturist does not know the English language, Op taking the undue advantage has taken some signatures on the blank papers and falsely created the surety and other consent letters.

          13. Ex.Op-1 authorization letter issued by Op to RW-1 is not disputed by the complainant. Ex.Op-2 is the copy of agreement which reveals that an agreement was entered on 04.06.2020, between Choudanayak S/o Reddy Nayak of Timmalapur Thanda, of Kudalagi Taluk and Op factory. As per terms and conditions Choudanayak agreed to harvest and transport the sugar cane for the crushing season 2020-21 in respect for which a sum advance amount of Rs.6,00,000/- was given. After putting the signature of contractor in page No.4 and the signature of the authorized signatory and seal of the company, the signature of complainant is stated to be taken on page No.5 along with Ex.Op-2, another surety agreement form for gangs agreement purpose is enclosed and wherein, the address, signature and photo’s of Choudanayak and surety can be perused.  Ex.Op-3 requesting letter for registration, Ex.Op-4 payment of advance and Ex.Op-5 authorization for recovery of dues are all executed by Choudanayak, Ex.Op-6 Aadhaar Card, Ex.Op-7 copy of passbook of Choudanayak, Ex.Op-8 Pan card, Ex.Op-9 Election I.D. card, Ex.OP-10 Journal Vochar Authorization of Choudanayak are not disputed by the complainant, Ex.Op-11 ryot wise supply details and Ex.Op-12 bill number, Ex.Op-14 checklist, Ex.Op-15 & Ex.Op-16 sugar cane supplied by complainant are also not disputed by complainant. Ex.Op-13 zerox copy of the consent letter stated to have been issued by the complainant and Ex.Op-2 agreement between Choudanayak and the company are disputed by the complainant and moreover the original agreement Ex.Op-2 and Ex.Op-13 the original consent letter have not been produced by the OP which are vital documents.   

          14. If the principal debtor Choudanayak failed to perform his part of contract, Op has to take action against Choudanayak and surety before the Civil Court to establish his case. Op stated that, he lodged the complaint against Choudanayak in CC.313/2021 before the JMFC Mundargi for the offence 138 NI Act, if the said case ends in conviction, Op is entitled for the cheque amount with interest as a compensation from Choudanayak. Already, Op has rightly approached the Court for taking action against Choudanayak. However, during the pendency of the case, Op has withheld the amount of complainant out of his sugar cane bill. Op cannot withhold the amount of complainant, without exhausting the remedy available against Choudanayak in accordance with law. Op is standing on two boats and sailing at a time against Choudanayak and the surety in parallel proceedings. Even, for a moment if we believe that the complainant has executed the surety bond and the consent letter on behalf of Choudanayak, Op has no right to withhold the amount without proving the agreement before the Civil Court or any competent authority. Without obtaining decree against Choudanayak and the complainant on the basis of Ex.OP-2 agreement or obtaining award by competent arbitrator, Op cannot withhold the amount of complainant without prior notice. If OP obtained decree or award against Choudanayak and the complainant then the right is accrued to Op for withholding the amount. So, the conduct and act of the Op withholding the principal amount of Rs.6,00,000/- stated to have been advanced to Choudanayak with interest @ 18% in all Rs.7,26,396/- it amounts to deficiency of service.  In fact Op has filed complaint against Choudanayak stated to have issued a cheque by him for a sum of Rs.6,47,860/- and even Op has withheld the amount of complainants bill Rs.7,26,396/-, instead of cheque amount which should have been Rs.6,47,860/-, but they have withheld an excess an amount of Rs.78,536/-  in addition to the cheque amount. Further, Op has withheld another amount of Rs.5,536/- from the complainant account without stating the reasons. Op has not stated any reasons or explanation in written version or affidavit of RW-1 regarding  withholding a sum of Rs.5,536/-.

          15. As per above oral and documentary evidence, the complainant has succeeded to prove that he is a consumer as he has supplied the sugar cane to Op factory. So also complainant has proved that, Op has committed un-fair trade practice and deficiency of service. Op deducted Rs.7,26,396/- and credited only an amount of Rs.15,721/- out of his total sugar cane bill of Rs.7,42,117/-. So, complainant is entitled for the amount withheld by Op a sum of Rs.7,26,396/-.

16. Further, complainant is seeking interest @ 18% p.a. from the date of withholding the amount till the realization. Complainant is seeking interest on higher side, without their being any agreement between the parties he cannot claim the interest as per his will and wish.  However, as per trade practice and damages caused to the complainant due to withholding a huge amount by Op without prior notice, therefore he is entitled for a reasonable interest at 10% p.a. from the date of withholding the amount till realization. Further, complainant is seeking Rs.1,00,000/- towards mental agony. No doubt complainant has suffered mental agony due to amount being withheld, since more than a year has passed and also he has approached this Commission for Redressal and filed a complaint through his counsel. So he is entitled for a sum of Rs.25,000/- towards mental agony and Rs.10,000/- towards cost of litigation.  Accordingly, we answer point No.1 in affirmative and point No.2 partly in affirmative. 

          17.     Point No.4:- In the result, we pass the following: 

    //O R D E R//

The complaint filed u/Sec.35 of the Consumer Protection Act, 2019 is partly allowed against Op.

The complainant is entitled for a sum of Rs.7,26,396/- with interest @ 10% p.a. from the date of withholding the amount i.e. 12.03.2021 till realization.

Further, the complainant is entitled for a compensation of Rs.25,000/- towards mental agony and Rs.10,000/- towards cost of litigation.

Op is directed to pay the above amount within one month from the date of this order.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us in the Open Court on this 15^th day of September-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

   PW-1: Basavaraddi S/o Venkaraddi Radder

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.P-1to 3: Copy of extract of R of R. in respect of R.S.No.40, 53/1

                 &11/4 of complainant.

Ex.P-4: Ryat wise supply details of Sugar cane to Vijayanagar Sugar

            Private limited by complainant.

Ex.P-5:Copy of bill number 9 to 13 details of complainant.

Ex.P-6: Legal notice issued by complainant.  

Ex.P-7: Reply notice issued by OP.

EVIDENCE ON BEHALF OF OPs:

RW-1 : Murlidhar G.Deshpande

DOCUMENTS ON BEHALF OF OPs:

Ex.R-1 : Copy of authorization letter.

Ex.R-2: Copy of Agreement.

Ex.R-3 to 5: Letter issued by Choudanayak.

Ex.R-6: The Adahaar Card.                                        

Ex.R-7:Copy of Passbook of Choudanayak

Ex.R-8:Copy of pan card.

Ex.R-9: Copy of voter I.D.

Ex.R.-10. Voucher of Vijayanagar Private Ltd.,

Ex.R-11: Ryat wise supply details of Sugar cane to Vijayanagar Sugar

              Private limited by complainant.

Ex.R-12: Copy of bill number 9 to 13 details of complainant account.

Ex.R-13: Consent letter for paying sugar cane cutting charges.

Ex.R-14 : Check list.

Ex.R-15 : Thrash agreement letter.

Ex.R-16 : Sugar cane agreement schedule.  

(Shri Raju N. Metri)    (Shri. D.Y. Basapura)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER