State Consumer Disputes Redressal Commission
M/S Kailas Tractors Sales And Services, vs Sandipan Rambhau Ingole,(Died) on 18 March, 2011
1 F.A.No.:450/2006
Date of filing :23.02.2006
Date of order :18.03.2011
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. : 450 OF 2006
IN COMPLAINT CASE NO.:74 OF 2003
DISTRICT CONSUMER FORUM :BEED.
M/s Kailas Tractors Sales and Services,
Mondha Road, Majalgaon, Dist.Beed,
Through Prop.Laxman Kisanrao Bahir. ...APPELLANT
(Org.Opp.No.1)
VERSUS
1. Sandipan Rambhau Ingole,(Died)
L.R.s,
1A. Govind Sandipan Ingole,
R/o Harischandra Pimpri,
Tq.Wadwani, Dist.Beed.
1B. Datta Sandipan Ingole,
R/o as above.
2. M/s Same Grives Tractor Ltd.,
C/o United Ware-housings Wathwade,
Pune. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-Org.Opp.No.2)
CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.S.N.Tandale for appellant, Adv.Shri.A.S.Pathak for respondent No.1A & 1B, None for respondent No.2.
O R A L O R D E R Per Shri.K.B.Gawali, Hon`ble Member.
1. Proprietor of M/s Kailas Tractors Sales and Service Shri.Laxman Kisanrao Bahir who is original opponent No.1 has filed present appeal against the judgment and order dated 30.12.2005 passed by Dist.Forum, Beed in C.C.No.74/2003.
2 F.A.No.:450/20062. The brief facts which giving rise to the present appeal are as under.
It was alleged by respondent No.1 that appellant had declared many decisive schemes so as to promote the sale of "Same Grieves Tractor" of which he was the dealer. One of the scheme was to pay 50% of the cost of the tractor which was Rs.3,65,000/- and tractor was to be given in possession and rest of the 50% cost was to be paid through bank loan. Since he had no money to pay total cost of the tractor he approached appellant and paid 50% of the amount i.e. Rs.1,82,500/- on 11.4.2001 in the form of cash and he was given the tractor of the said company having model of 2001. It was of 50 HP bearing engine No.3 PRO1836 A.R. and Chasis number 01857. That he had paid insurance amount of the tractor on the same date i.e. 11.4.2001 to the appellant. But he could receive cover note of the policy after 2 months i.e. 7.6.2001. It was also alleged that appellant had given receipt regarding Rs.1,82,500/- dated 8.6.2001 which was submitted in Dwarkadas Mantri Sah.Bank, Branch Majalgaon alongwith proposal of loan amount of Rs.1,82,500/-. The said bank sanctioned Rs.1,82,500/- and the said amount was paid to the appellant on 8.6.2001 through D.D. No.01594. Thus total cost of the tractor i.e. Rs.3,65,000/- was paid to the appellant. However appellant did not issue 'sale certificate' inspite of repeated demand. It is further alleged by respondent No.1 that at the time of purchase of tractor appellant was given 3 blank cheques pertaining to his bank account in D.C.C.Bank and one blank stamp paper amounting to Rs.100/- towards security of the loan. That, out of 3 cheques 2 cheques bearing No.168961 and 168962 signed by respondent No.1 were handed over on 18.4.2001. It is also the case of respondent No.1 that the said tractor was not functioning properly and engine of the tractor had manufacturing defect. The price of the tractor was also found to be unreasonable. That due to non availability of spare parts 3 F.A.No.:450/2006 with the dealer i.e. appellant, the tractor could not be used for about 1 & ½ year which resulted huge financial loss to him. That on 21.3.2003 he approached appellant and requested to hand over 'sale certificate' and other necessary documents of the tractor, but appellant flatly refused and therefore he approached Consumer Forum praying for compensation of Rs.50,000/- from appellant and respondent No.2. It was also prayed to direct appellant to issue him "sale certificate" alongwith expenditure which would be required for passing tractor from R.T.O. That, all the 3 blank cheques and blank stamp papers also to be returned to him.
3. The appellant and respondent No.2 appeared before the Forum and resisted the claim. Appellant submitted that respondent No.1 had approached him and expressed his desires to purchase 50HP tractor of "Same Grives Tractor" which costed to Rs.3,65,000/-. It is the case of appellant that respondent No.1 executed agreement on the stamp papers stating therein that for getting bank loan of Rs.1,82,500/-, appellant should give nominal receipt of Rs.1,82,500/-. Accordingly, appellant gave receipt of Rs.1,82,500/- to respondent No.1 for submitting the same in the bank. Against this receipt the respondent was to pay the said amount of Rs.1,82,500/- to the appellant within a month. Respondent No.1 however failed to pay Rs.1,82,500/- within the prescribed period and after pursuing hard the respondent No.1 issued cheque bearing No.168961 dt.27.2.2003 amounting to Rs. 1 lakh drawn on D.C.C.Bank, Branch Wadwani in favour of appellant. But the said cheque was dishonoured by the bank and therefore criminal case U/s 138 of Negotiable Instrument Act was filed against respondent No.1 in the court at Majalgaon. Respondent No.1 again on 20.4.2003 issued another cheque bearing No.168962 to the appellant amounting to Rs.82,500/- of the same bank. This cheque was also dishonoured by the bank and therefore separate criminal case U/s 138 of 'Negotiable Instrument Act' was instituted against respondent No.1. Both the cases are pending. In addition separate 4 F.A.No.:450/2006 criminal case bearing No.565./03 for the recovery of Rs.1,82,500/- has also been filed in Majalgaon Court. Appellant thus contended that to avoid the payment of Rs.1,82,500/- respondent No.1 had deliberately filed present false complaint and requested the Forum to set aside the same and also to direct complainant to pay compensatory cost of Rs.20,000/-.
4. Respondent No.2 i.e. opponent NO.2 also appeared before the Forum and denied the allegations and contended that complaint is fraudulent which needs to be set aside.
5. The Forum below after hearing the parties and perusal of the record allowed the complaint and passed the judgment and order in question. By way of this order Dist.Forum has ordered the appellant to issue "sale certificate" of the said tractor to the complainant and also to pay Rs.20,000/- towards mental agony and Rs.3000/- as cost of complaint within a period of one month, failing which, interest @ 6% p.a. be paid by appellant to the complainant.
6. Aggrieved by the said judgment and order appellant No.1 has filed by present appellant before this Commission.
7. During pendancy of the appeal original complainant Sandipan died and his L.R.s have been brought on record. We have issued notices to the appellant as well as respondents. Adv.Shri.S.N.Tandale appeared for appellant. Adv.Shri.A.S.Pathak appeared for respondent No.1A & 1B. None appeared for respondent No.2. On the date of final hearing advocate for appellant and respondents appeared before us and submitted their oral submissions. Learned counsel for the appellant Shri.S.N.Tandale submitted that as per agreement nominal receipt of Rs.1,82,500/- was given to respondent No.1 so as to get the loan amount of Rs.1,82,500/- sanctioned from the bank. That, respondent No.1 was to pay the said amount of Rs.1,82,500/- within 5 F.A.No.:450/2006 a month. However, since he has failed to pay the said amount "sale certificate" has not been issued to respondent No.1. He also submitted that respondent No.1 had issued two cheques, one amounting to Rs.1 lakh bearing No.168961 dated 27.2.2003 drawn on D.C.C.Bank, Branch Wadwani and other amounting to Rs.82,500/- bearing No.168962 dated 20.4.2003 drawn on the same bank. They were deposited in the bank. They have been dishonoured and hence two separate criminal cases against respondent No.1 U/s 138 of Negotiable Instrument Act have been filed in the court of Majalgaon. It was further submitted by learned counsel that separate criminal case bearing No.565/03 for the recovery of Rs.1,82,500/- has also been filed against respondent No.1. He thus contended that since respondent NO.1 has not paid the amount of Rs.1,82,500/- which was agreed upon therefore appellant has not issued "sale certificate"
of the tractor. Therefore there is no deficiency in service on the part of appellant. However Forum below without appreciating all these aspects relying upon the said nominal receipts has erred in passing the judgment and order in question which needs to be quashed and set aside.
8. On the other hand, learned counsel for respondent submitted that out of total cost of Rs.3,65,000/- 50% amount i.e. Rs.1,82,500/- was paid in cash on 11.4.2001 to the appellant. On making the said payment the tractor was given in possession of respondent No.1 and subsequently receipt dated 8.6.2001 of the said amount was given to respondent No.1. That rest of the 50% amount i.e. Rs.1,82,500/- has also been paid through the bank loan from Dwarakadas Mantri Co.Op.Bank. He thus fully supported the judgment and order passed by Dist.Forum and requested to confirm the same order.
9. We have carefully gone through the documents and also the oral submission made by learned counsels of the appellant as well as respondent No.1. We are confronted with question that when as per 6 F.A.No.:450/2006 the contention of the respondent No.1 he has paid entire cost of the tractor then why he had given 3 blank cheques and blank stamp paper of Rs.100/- to the appellant. The contention of respondent No.1 is that for the security of the loan he had given those blank cheques and stamp paper. However security is to be given to the bank and not to the dealer of the tractor i.e. appellant. In fact respondent No.1 has denied to have received such blank cheques or stamp paper and contended that the respondent No.1 had given two cheques one of Rs.1,00,000/- and the other of Rs.82,500/- bearing Nos.168961 and 168962 respectively and had executed the agreement on Rs.100/- stamp paper through which it was agreed that the appellant to give nominal receipt of Rs.1,82,500/- and in turn the respondent would pay the said amount within a month. It thus reveals that the respondent No.1 in lieu of the payment of Rs.1,82,500/- has issued first cheque bearing No.168961 drawn on D.C.C.Bank branch Wadwani, but the same was dishonoured and therefore criminal case U/s 138 of Negotiable Instrument Act has been filed against him. The second cheque of balance amount of Rs.82,500/- bearing No.168962 dated 20.4.2003 was issued by the respondent No.1 but the same was also dishonoured and again another criminal case U/s 138 of Negotiable Instrument Act has been filed against respondent No.1. Both these cases are pending. It is also the submission of the appellant that he has lodged a separate criminal case bearing No.562/2003 of recovery of balance amount of Rs.1,82,500/- in the Court of Majalgaon. It is to be noted that respondent NO.1 has not denied lodging of all these criminal cases. The above said evidence of issue of cheques and agreement certainly goes to support the contention of appellant that the respondent is to pay him Rs.1,82,500/-.
10. It is also to be noted here that the complainant himself has submitted in his complaint that he was not having entire amount as required for purchase of the tractor. This submission itself goes to establish that he must not have given the amount in cash. But on the 7 F.A.No.:450/2006 basis of nominal receipt which was given by the appellant, he is alleging that he has paid said amount to the appellant. It is also to be noted that as per the contention of respondent No.1 he has paid in cash Rs.1,82,500/- to the appellant on 11.4.2001. But receipt is dated 8.6.2001. This anomaly in the submission of respondent No.1 regarding the said payment, makes us believe that he has not deposited any cash on 11.4.2001 with the appellant.
11. All these abovesaid averments were made by the appellant before the Forum but the Forum has failed to appreciate the same. It is therefore revealed that since respondent No.1 has not paid 50% cost of the tractor i.e. Rs.1,82,500/- appellant has not issued "sale certificate" therefore appellant cannot be said to have committed deficiency in service as is wrongly held by Forum and erred in passing the judgment and order under appeal.
12. Respondent No.1 also appears to have made false allegations about the defects in the tractor as there is no evidence on record that he had made complaint in writing either to the appellant or to the manufacturing company i.e. respondent No.2. In his complaint respondent No.1 has made allegations that appellant has declared many false and decisive scheme regarding sale of tractor. But he has not given any documentary evidence in support of his said allegations. Thus complaint of respondent No.1 does not appear to be genuine. But Forum below has failed to consider all these aspects and has wrongly allowed and passed the judgment and order in question. We are therefore inclined to quash and set aside the same. Hence the following order.
O R D E R 1. Appeal is allowed.
2. The impugned judgment and order passed by the Forum is hereby quashed and set aside.
8 F.A.No.:450/20063. Complaint stands dismissed.
4. No order as to cost.
5. Record & proceedings be sent back to the Forum.
6. Copies of the judgment be issued to both the parties.
K.B.Gawali, Mrs.Uma S.Bora S.G.Deshmukh Member Member Presiding Judicial Member. Mane