State Consumer Disputes Redressal Commission
Ganesh Kubal vs Rohan Thakur & Others on 31 January, 2018
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 78/2017
Ganesh Kubal,
870, Journalist Colony,
Porvorim, Bardez, Goa. ... Appellant
v/s
1. Mr. Rohan Thakur, Partner
M/s Wheel Magnets,
Bldg no. 875/4, Near Sai Service,
Porvorim, Bardez, Goa.
2. HDFC Bank
C/o M/s Wheel Magnets
Bldg no. 875/4, Near Sai Service,
Porvorim, Bardez, Goa. ...(Deleted)
3. The Manager,
HDFC Bank, Shop no. 1 & 2,
Cosmos Towers, Mapusa Goa. ... Respondents
Appellant in person.
Respondent No. 2 deleted.
Respondents No. 1 and 3 absent.
Coram: Shri. Justice U. V. Bakre, President
Shri. Jagdish Prabhudessai, Member
Dated: 31/01/2018
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the Judgment and Order dated 11/08/2017 passed by the Consumer Disputes Redressal Forum, North Goa in Complaint No. 51/2015. The Appellant was the Complainant and Respondents were the Opposite Parties (OPs) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
22. The Complainant had filed the said Complaint with prayer to direct the OPs, jointly and or severally, to return to him all his documents in their custody and to pay compensation of Rs. 50,000/- towards mental torture and harassment; to pay Rs. 10,000/- towards money spent in perusing the matter; to pay cost of Rs. 20,000/- towards the Complaint and 18% interest on the compensation and cost till the amount is paid.
3. Case of the Complainant is as follows:-
On 18/01/2014 after reading an advertisement in local daily, the Complainant and his daughter visited the showroom of OP No. 1 for purchase of a two wheeler of make "HERO" manufactured by OP No. 2. The OP No. 1 quoted ex-showroom price of Rs. 45,970/-.
The Complainant opted for a particular scheme amongst the schemes introduced by OP No. 1 and deposited Rs. 14,455/- in cash and further submitted copies of voters identity card of the Complainant, his wife and daughter, family ration card, bank account statement of his daughter, bank account statement of the Complainant, bank account statement of his wife, professional card of the Applicant and signed blank cheques of his wife Anita, all drawn on the Bank of Maharashtra, Porvorim branch. Under the scheme, the balance amount was to be financed by the OP No. 1 through the bank attached to it. Thereafter, though the Complainant continuously inquired about the scooter for about a month he was not delivered the vehicle nor any information was given to him. On 28/02/2014, the OP No. 1 informed him that all his documents including signed blank cheques are pending with HDFC bank. On 07/03/2014 the Complainant visited the OP No. 1 but no information was given to him and even the scooter was not delivered. On 10/03/2014 the Complainant collected the scooter by paying difference of the amount and requested the OP No. 1 to return all his documents. Since the OP No. 1 did not act, legal notice dated 27/03/2014 was sent to the OP No. 1 and vide reply dated 3 24/04/2014 the OP No. 1 informed that they had advised HDFC officer to return the documents. By another reply dated 22/05/2014 the OP No. 1 advised the Complainant to write to the HDFC bank at Mapusa, Bardez, Goa. Along with the said reply the OP No. 1 enclosed photocopy of internal communication dated 20/05/2014 between the OP No. 1 and the bank, wherein it was written as follows:
"loan application is rejected for non contactability".
The Complainant had furnished his residential address, phone number and had also given his professional card as an advocate. The OPs thus had refused to return the documents and they wanted to harass and mentally torture the Complainant. The OPs are in collusion with one another. Hence the Complaint.
4. The Complainant relied upon the notice dated 27/03/2014 sent to the OP No. 1 and to the Managing Director of M/s Hero MotoCorp Ltd., reply dated 24/04/2014 sent by OP No. 1 to Advocate Mr. A. F. Naik, another reply dated 22/05/2014 sent by OP No. 1 to Advocate Mr. A. F. Naik and letter dated 20/05/2014 sent by HDFC bank of OP No. 1.
5. On receipt of notice of the Complaint, the OP No. 1 sent its reply to the Forum in which they stated as under:
They had received a sum of Rs. 14,455/- from Miss. Ankeeta Kubal vide receipt No. 14780 dated 18/01/2014 towards the booking of one pleasure scooter. Said Miss. Ankeeta Kubal wanted to avail finance and approached the representative of the HDFC bank and gathered information about the finance and applied for loan. After scrutinizing the documents the HDFC bank rejected the loan proposal and informed the customer accordingly. Since the loan was not sanctioned by HDFC bank, the Complainant decided to pay the full amount in cash and made the balance payment of Rs.4
20,970/- and Rs. 10,855/- vide receipts No. 17544 and 17545 respectively on 10/03/2014. On receipt of the full payment, the OP No. 1 delivered the pleasure scooter to Miss. Ankeeta Kubal on 10/03/2014 vide invoice No. 7346. The finance/financer is made available to the customer in the showroom for the convenience of the customer. The financer gives the scheme as per the choice of the customer and requests him to produce the documents as required by the financer. Upon scrutiny of the documents the financer informs the customer about the status of his application as to whether it is approved or not. In case of Miss. Ankeeta Kubal her application was rejected by the HDFC bank. Documents are submitted by the customer to the financer and loan sanctioning is entirely at the discretion of the financer and the dealer is not connected with the same. Upon receipt of notice dated 27th March, the OP No. 1 informed the HDFC bank to return the documents related to the matter if they are having the same. The OP No. 1 never received the documents. Upon receipt of letter from HDFC bank the OP No. 1 informed the advocate for the Complainant to produce necessary information required by HDFC to do the needful. The OP No. 1 does not have any documents referred to by the Complainant.
6. The OP No. 1 relied upon the reply dated 24/04/2014 sent to Advocate Mr. A. F. Naik, letter dated 20/05/2014 sent by HDFC bank to OP No. 1 and letter dated 22/05/2014 sent to Advocate Mr. A. F. Naik.
7. The OPs No. 2 and 3 in their written version stated as under:-
The procedure of OPs No. 2 and 3 is that whenever any customer approaches their Officers they will be asked for KYC documents i.e. the photocopy of photo identity proof, photocopy of address proof and photocopy of Pan Card, if any, income proof and last six months bank statement to verify the eligibility of the prospective customer. Its only when the prospective customers 5 were found to be eligible, the officers of OPs No. 2 and 3 inform the same to the said customer and hand over loan approval letter and only after the customer completing all the required documents and signing them, the OPs No. 2 and 3 disburse the loan and then only if required (not in all the cases) postdated cheques of the EMI along with loan repayment schedule is handed over to such customer at the time of disbursal of loan. In the present case, the loan was rejected at the very first instance and hence the question of taking any blank cheques did not arise. Even otherwise, the KYC documents handed over to the OPs No. 2 and 3 are retained till 60 days and thereafter they are destroyed. In the present, case without admitting the fact that the Complainant had given the KYC documents, the same were never demanded by the Complainant from the OPs No. 2 and 3 and since more than 18 months have passed, there is every possibility that the said documents have been destroyed. Letter dated 20/05/2014 addressed by OP No. 3 speaks for itself. Blank cheques were never handed over to the OP No. 2 or OP No. 3. The loan was rejected by OPs No. 2 and 3 since the Complainant was not contactable. The OPs No. 2 and 3 denied all the allegations made by the Complainant.
8. The Complainant filed his own affidavit-in-evidence and OPs No. 2 and 3 filed the affidavit-in-evidence of their authorized officer namely Mr. Sameer Sawant. The Complainant and the OPs No. 2 and 3 filed their written arguments. The Forum also heard oral arguments.
9. Vide the impugned judgment, the Forum observed that the Complainant did not produce any documents to prove that he had given documents including six blank cheques to the OPs at the time of booking the scooter. The Forum further observed that the Complainant failed to mention the cheque numbers of the said blank cheques and to specify the account number of his wife who had signed the said blank cheques. The Forum also observed that the OP 6 No. 1 had informed the Complainant on 22/05/2014 to approach the OP No. 3 with written request but the Complainant failed to approach OP No. 3. The Forum held that the Complainant failed to establish deficiency in service on the part of the OPs. The Complaint has been dismissed with cost of Rs. 10,000/- as follows:- Rs. 2,500/- to OP No. 1, Rs. 2,500/- to OP No. 2 and Rs. 5,000/- in favour of Consumer Welfare Fund of the State Government. The Complainant is aggrieved by the above order impugned in the present Appeal.
10. Records and proceedings of Complaint No. 51/2015 were called for. The Complainant has deleted the name of the OP No. 2 i.e. HDFC bank from the cause title of the present Appeal. The Complainant has filed written arguments and has also argued orally. The OPs No. 1 and 3 did not file any written arguments nor did they submit any oral arguments.
11. We have gone through the entire material on record.
12. As has been rightly observed by the Forum, the Complainant has not produced any documentary evidence to prove that he had furnished six signed blank cheques all drawn on bank of Maharashtra, Porvorim branch to the OP No. 1. It was contended by the Complainant that the OP No. 3 had admitted the custody of documents in the letter dated 20/05/2014 as also in the written version. In the letter dated 20/05/2014, only the procedure is mentioned by stating that as per bank policy, the documents taken for processing TW application are returned back only to the customer after receiving written request for the same. Neither in the above letter nor in the written version, there is any admission that six blank cheques were received from the Complainant. In fact, unless the loan is approved, the question of taking blank cheques will not arise at all. In the written version, the OPs No. 2 and 3 have explained the entire procedure. The Complainant has also failed to prove that he had furnished the copies of voters identity cards of his 7 wife and daughter, family ration card, bank account statement of the daughter of the Complainant and of his wife and the said blank cheques to the OP No. 1 and that under the scheme opted by him, the balance amount was to be financed by OP No. 1 through the bank attached to it. There is no evidence on record to prove that HDFC bank or any other bank is attached to OP No. 1 for finance. The documents taken for identity were only copies of the original. In such circumstances, directing the OPs to return the said documents to the Complainant does not at all arise. It is not understood as to why the Complainant could not even furnish the cheque numbers of the said blank cheques and to specify the account number of his wife who had allegedly signed the blank cheques. The Complainant is an advocate and cannot be expected to have furnished all the said documents without taking acknowledgment of the same from the concerned OP. The Complainant has not produced any acknowledgment of the said documents.
13. The Complainant has not produced any evidence to establish that the OP No. 1 had represented to the Complainant about various financing schemes available with it and that the HDFC bank was attached to it. The Complainant has not produced the copy of the scheme allegedly opted by him. The Complainant initially paid the amount of Rs. 14,455/- and subsequently paid the balance amount and took the delivery of the two wheeler. There is absolutely no case made out of any deficiency in service. Vide letter dated 20/05/2014 the HDFC bank had written to the OP No. 1 stating that the loan was rejected and that as per the bank policy documents are returned only to the customer after receiving return request for the same and to request the customer to file such application for returning the documents taken for processing of TW loan application. Inspite of above, the Complainant chose not to send any request letter to HDFC bank. The OPs have specifically denied 8 receipt of any blank cheques from the Complainant. In such circumstances it was for the Complainant to prove that he had submitted blank cheques. The burden of proving deficiency of service was entirely upon the Complainant in which he failed.
14. Be that as it may, the Complaint has been dismissed with cost of Rs. 10,000/- by quoting the judgment of the Hon'ble Supreme Court in the case of "Morgan Stanly M F V/s Kartick Das/Sebi and others", (C.A. No. 4584/94), [(1994) 4 SCC 225], wherein it was mentioned as under:-
"There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the Fora seem really to oblige. We think such a tendency should be curbed."
The Forum has not held that the Complaint was speculative and vexatious and was an adventurism. Even otherwise, in our view, the Complaint cannot be termed as vexatious and there was absolutely no need to award heavy costs to be paid by the Complainant. The Complaint ought to have been dismissed with no order as to costs.
15. In the result, we pass the following:-
ORDER The Appeal is partly allowed. The final order awarding cost of Rs. 10,000/- is quashed and set aside and the Complaint stands dismissed with no order as to costs.
[Shri. JagdishPrabhudessai] [Justice Shri. U. V. Bakre]
Member President
sp/-