State Consumer Disputes Redressal Commission
Sethi Finance vs Ajinath Damodhar Nalawade on 17 March, 2009
1 F.A.No. :661/2001
Date of filing:26.04.2001
Date of order:17.03.2009
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
F.A. NO.: 661 OF 2001
IN COMPLAINT CASE NO. :93 OF 1999
DISTRICT FORUM : AHMEDNAGAR.
Sethi Finance
Through its Sole Proprietor
Mr.Vijaykumar Sethi,
R/o Navipeeth, Rahuri,
Tq.Rahuri, Dist.Ahmednagar. ...APPELLANT
(Org.Opp.No.2)
VERSUS
1. Ajinath Damodhar Nalawade,
R/o Bajar Sawangi, Tq.khultabad,
Dist.Aurangabad.
2. The Manager,
Alpic Finance Ltd.,
Branch at Ahmednagar,
Ward No.22, Suraj Apartment,
Mahavirnagar, Ahmednagar. ...RESPODNENTS
(No.1-org.Complainant,
No.2-org.Opp.No.1)
Coram : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.P.P.Darakh for appellant, Adv.Shri.P.N.Walunjkar for respondent.
2 F.A.No. :661/2001O R A L O R D E R Per Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
1. The present appeal is filed by original opponent No.2 Sethi Finance against the judgment and order dated 20.03.2001 in complaint case No. 93/99 passed by District Forum, Ahmednagar.
2. Respondent No.1/Complainant`s case before the Forum is that, he had obtained loan of Rs.2,72,288/- for purchase of jeep from respondent No.2 Alpic Finance through appellant. The loan was to be repaid in 36 equal monthly instalments of Rs.10490/-. It is contended that, appellant and respondent No.2 had taken Rs.50,843/- for several causes. It is further contended that, appellant had taken Rs.10900/- instead of Rs.10490/- for each instalment. It is further contended that, complainant had paid 18 instalments regularly and had paid Rs.7000/- towards 19th instalments to the appellant. It is contended that, respondent No.2 seized the vehicle on 22.10.1997 from village Sawangi without giving pre-intimation stating that respondent No.2 received amount towards 11 instalments only. It was also informed him that the vehicle will be returned back to him. It is contended that, on 4.11.1997 appellant received amount of Rs.43,600/- from complainant as against dues towards loan. Even then jeep was not returned to the complainant. It is further contended that appellant had obtained signature of the complainant on blank stamp papers and blank voucher. It is further contended that, appellant and respondent No.2 sold the jeep for low consideration and thus the complainant claimed loss of Rs.1,75,490/- with interest @ 18% p.a. and also claimed Rs.72,000/- towards loss of business.
3 F.A.No. :661/20013. Appellant appeared before the Forum and resisted the claim. It is contended that, appellant is appointed as agent by respondent No.2. It is further contended that, complainant is not consumer within the meaning of Consumer Protection Act. Appellant is falsely involved in the matter. It is contended that, loan was given by respondent No.2 and not by appellant. It is contended that, as per agreement in between complainant and respondent No.2 complainant was to pay monthly instalment and respondent No.2 was entitled to repossess the vehicle if instalments are not paid.It is contended that, complainant did not deposit the instalments as per agreement. He was defaulter. He never paid 18 instalments. It is contended that, whenever complainant paid instalments to him he passed the receipts. It is also contended that, instalments deposited with him by the complainant had been paid to respondent No.2. He also denied the contention that, he obtained signatures of complainant on blank stamp papers and blank voucher.
4. Respondent No.2 was served with the notice but did not appear before the Forum and did not file written statement.
5. The Forum below after going through the papers and hearing the parties allowed the complaint and directed the appellant and respondent No.2 to pay amount of Rs.1,00,000/- jointly and severally with interest @ 14% p.a. from 22.10.1997 within 45 days. Forum also directed appellant and respondent No.2 to pay amount of Rs.50,000/- within 45 days, on failure it will carry interest @ 14% p.a. from the date of complaint. Forum also directed appellant and respondent No.2 to pay amount of Rs.1000/- jointly and severally within 45 days. On failure it will carry interest @ 14% from the date of complaint.
4 F.A.No. :661/20016. Being aggrieved by the said judgment and order passed by District Forum, Ahmednagar, original opponent No.2 came in appeal.
7. Notices were issued to the appellant as well as respondents. Learned counsel Shri.P.P.Darakh appeared on behalf of appellant whereas Adv.Shri.Walunjkar appeared on behalf of respondent No.1. None appeared on behalf of respondent No.2. We heard both the counsels at sufficient length. Learned counsel Shri.Darakh submitted that, transaction of the loan had taken place between complainant and respondent No.2 and thus appellant has no concern. He submitted that, appellant was an agent of respondent No.2 to deposit amounts of instalment with respondent No.2. Learned counsel submitted that, only initial 10 intalments were paid by complainant which had been deposited by the appellant with respondent No.2. He submitted that, complainant/respondent No.1 was not punctual in depositing the instalments. Learned counsel also submitted that, complainant did not pay the 18 instalments with him. According to him Forum below did not look into the receipts produced by complainant. He submitted that, complainant was negligent and not the appellant. Learned counsel also tried to submit that appellant due to mistake and oversight failed to produce evidence regarding right as to getting remuneration from respondent No.1. According to him, complainant had given in writing that the appellant is entitled for amount of Rs.490/- in each instalment of loan by way of remuneration for depositing the amount on behalf of complainant. Learned counsel requested for allowing the appellant to produce the evidence in that respect. Learned counsel tried to submit that, complainant did not come with clean hands and wrongly mentioned that he paid 18 instalments regularly. He submitted that, as he has not come with the clean hand and as his case is based on false ground complainant has no right to approach the Forum. In that respect he 5 F.A.No. :661/2001 relied on ' S.P.Chengalvaraya Naidu(dead) by L.Rs. -Vs- Jagannath (dead) by L.Rs. and others' reported in AIR 1994 Supreme Court 853.
7. Learned counsel Shri.Walunjkar for respondent No.1 submitted that,evidence on record shows that, appellant had taken Rs.10900/- instead of Rs.10490/- towards each monthly instalment. According to him, appellant had no right to take instalment at the rate of Rs.10900/- when instalment agreed was Rs.10490/-. He further submitted that, appellant was given sufficient opportunity to produce the documents before the Forum. But appellant did not produce any sort of document to show that he was allowed to collect remuneration from him for depositing the instalments with respondent No.2. He could have produced document before the Forum itself. He further submitted that, Forum has rightly observed that, complainant had paid total amount of Rs.1,81,400/- to the appellant but appellant paid amount of Rs.1,14,400/- to respondent No.2. Learned counsel further submitted that appellant had accepted amount of Rs.43,600/- from him on 4.11.1997. Even then the vehicle seized by respondent was not returned. He also submitted that, appellant had obtained his signatures on blank stamp papers and vouchers. He fully supported the judgment and order passed by the Forum.
8. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. There is no dispute that, complainant had raised the loan of Rs.2,72,288/- from respondent No.2 through appellant. There is also no dispute that present appellant did not produce any document before the Forum to show that, he was authorized to receive the remuneration from complainant in order to deposit the premium deposited with him to the respondent No.2. Additional evidence can not be admitted when appellant had ample 6 F.A.No. :661/2001 opportunity to produce the same before the Forum. Requirement under Order 41 Rule 27 under C.P.C. have not been proved by the appellant to bring on record additional evidence which was not produced before the Forum. Further it also be noted that, it is case of respondent No.1/complainant that appellant had obtained his signatures on blank stamp papers. We have mentioned that, there is absolutely no evidence to show that appellant had agreed to accept amount of Rs.490/- more than agreed instalment towards appellant`s remuneration. Appellant himself admitted that he is agent of respondent No.2. When he is agent of respondent No.2 in the circumstances acceptance of more amount than agreed instalment is deficiency on the part of present appellant. Forum below has rightly considered this aspect. From the receipts brought on record by respondent No.1 before the Forum, it is certain that he had paid the amount of Rs.1,81,400/- with the present appellant for depositing the same with respondent No.2. It is also apparent from transaction, calculation sheet produced before the Forum that EMI was Rs.10410/-, appellant was accepting EMI Rs.10900/-. It is also apparent from it , that appellant deposited the amount of Rs.1,14,400/- with respondent No.2 which he had received from complainant. It has also come on record that on 4.11.1997 appellant had received Rs.43,600/- from complainant. It has also come on record that, respondent No.2 had seized the vehicle from village Sawangi on 22.10.1997 and complainant was told that, the vehicle will be returned back if he deposits the instalments. It has also come on record that appellant and respondent No.2 had taken Rs.50,843/- for several causes in the beginning. Even on depositing amount of Rs.43,600/- on 4.11.1997 by the complainant with appellant the vehicle was not released. On the contrary, the same was sold. It has also come on record that, no evidence has been brought on record to show on what condition the loan was given to the complainant. It has also come on 7 F.A.No. :661/2001 record that the vehicle in question seized from complainant by respondent No.2 was sold and no prior intimation was given to respondent No.1. It has also come on record that before selling of the vehicle in question complainant was not given opportunity and was not intimated about sell in question. Forum below has rightly considered all these aspects and rightly allowed the complaint.
9. The ratio in S.P.Chengalveraya Naidu`s case cited by appellant is not helpful to the appellant as in the instant case respondent No.1/complainant`s case is not based on false ground. We have mentioned that receipts produced by complainant show that he had paid the total amount of Rs.1,14,400/- to the appellant and appellant had deposited the amount of Rs.1,14,400/- with respondent No.2. We are not inclined to interfere the order passed by the Forum. We pass the following order.
O R D E R
1. Appeal is dismissed.
2. Appellant to pay an amount of Rs.2000/- towards cost in the appeal.
3. Record & Proceedings be sent back to the District Forum.
4. Copies of the order be sent to both the parties.
Mrs.Uma S.Bora S.G.Deshmukh,
Member Presiding Judicial Member
Mane