State Consumer Disputes Redressal Commission
Yogendra Chouksey vs Indusind Bank Ltd. Through Manager & ... on 29 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/94
Instituted on : 15.01.2018
Yogendra Chouksey,
R/o : House No.89, P.S. City, Ring Road No.1,
Changorabhata,
Raipur (C.G.) - 492013 ... Complainant.
Vs.
1. Branch Manager,
Indusind Bank, Krishna Complex,
Kutchery Chowk,
Raipur (C.G.) 492001
2. Chhattisgarh Housing Board,
Sampada Adhikar, Sampada Prabandhan Parichetra-3,
Commercial Complex, 1st Floor, Molshree Vihar,
VIP Road, Purena,
Raipur (C.G.)
3. State Bank of India,
Mowa Branch, Village Mowa,
Tehsil and District Raipur (C.G.) .... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES:
Shri Shrijan Shukla, Advocate for the complainant.
Shri Santosh Tiwari, Advocate for the O.P. No.1.
Shri C. Motisagar, Advocate for O.P. No.2.
None for the O.P. No.3.
ORDER
DATED : 29/MAY/2018 PER :- HON'BLE SHRI D.K. PODDAR, MEMBER The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs, seeking following reliefs :-
// 2 // (1) To direct the O.P. No.1, to return the original cheque bearing cheque No.300950 dated 17.09.2012 amounting Rs.3,84,000/- to the complainant or to the O.P. No.3 for needful and to direct the O.P. No.2 to waive off the interest which has been imposed by them on the complainant and to deliver the possession of the house after completing the required formalities.
(2) To direct the OPs for the payment of Rs.8,84,000/- on account of rent expenses, which the complainant has paid for his habitat due to non-
availability of the said house, in his possession.
(3) To direct the OPs for the payment of Rs.6,00,000/- on account of the interest paid against the loan accrued for the purchase of the said allotted house.
(4) To direct the OPs to pay interest @ 18% p.a. on the entire amount. (5) Compensation to the tune of Rs.5,00,000/- for mental agony and irresponsible attitude and high handedness of the OPs, may also be allowed in the interest of justice.
(6) Expenses in connection with the litigation amounting to Rs.2,00,000/- may also be allowed.
(7) Any other relief, which the Hon'ble Commission may feel deem fit and proper under the circumstances.
2. Briefly stated the facts of the complaint of the complainant are that in order to avail his own home at Raipur (C.G.), and by being fascinated with the broacher produced by the O.P. No.2 C.G. Housing Board for its // 3 // developing project of C.G. Housing Board in Naya Raipur Township at Sector 29 of Naya Raipur, Raipur (C.G.), the complainant applied for allotment of independent house in the said project. Considering this application of the complainant, the O.P. No.2 vide its letter No.4109/San.Adhi/Ra.Pa.San.-1/12 dated 26.04.2012 allotted the independent House No.127 to the complainant under the Self Finance Scheme. In this allotment letter of the O.P. No.2, the expected value of the house was estimated to be Rs.24 lakhs. For giving the consent of the allotment, the complainant was directed in the same letter to inspect the progress of construction of the allotted house and also to give the consent in the specified format on Rs.50/- non judicial stamp paper. The complainant with the bonafide desire of obtaining the allotment of the allotted house, did the directed formality with utmost priority and efficacy. Further it was also directed to the complainant to give the first instalment through a cheque or demand draft in the branch of O.P. No.2 through a challan specifying the name of the allottee and the house number of the allotted house. For availing this particular allotted house, the complainant paid Rs.3,60,000/- on 21.01.2012 as the registration charge for the confirmation of the said allotment to the complainant and also complied with the other formalities, as directed. Thereafter for the remaining disbursements to be made by the complainant, he applied for availing the loan facility with State Bank of India, Mowa Branch i.e. O.P. No.3 and O.P. No.3 was pleased enough to disburse the complainant with the loan facility as per the requirement of the O.P. NO.2. In the sequence, the complainant has also deposited the first instalment of Rs.3,84,000/- obtained from O.P. No.3 to the account of O.P. // 4 // No.2 having its account at the branch of O.P. No.1, against the disbursement of the 1st Instalment towards the payment for the allotment done by the O.P. No.2 on 17.10.2017 through a cheque No.300950 dated 17.09.2012. Copy of the acknowledgement letter from O.P. No.2 with copy of cheque and cheque deposit slip is annexed herewith as Annexure C/1. This particular transaction is also reflected in the loan account statement of the complainant. Copy of the loan account statement is annexed herewith as Annexure C/2 and the same has also been acknowledged by the O.P. No.2 in its demand letter for the payment of the second and third instalment dated 04.03.2014. Copy of the demand letter datd 04.03.2014 has been annexed herewith as Annexure C/3. It is also pertinent to mention here that the demand letter dated 04.03.2014 demanding for payment of Rs.8,64,204/- with immediate effect and the same was disbursed from the loan account of the complainant maintained by O.P. No.3 on 06.03.2014 vide cheque No.576525 dated 06.03.2014, the entry for the disbursement of this payment can also be witnessed in the account statement of the complainant for the loan account maintained by the O.P. No.3, annexed herewith as Annexure C/2. The complainant has also paid the 5th instalment for the allotted house for Rs.3,84,000/- vide cheque No.995777 dated 11.09.2014, as the same is reflected from the loan account statement of the complainant. But, to the utter surprise of the complainant, he received the communication from the O.P. No.2 as the final allotment letter No.1520/San.Adhi./San.Pra.Pra-2/15 dated 11.05.2015. In the said letter the total bifurcation for the total cost of the house was communicated to the complainant as Rs.26,06,807/- and the interest of Rs.1,18,032/- for the late payment along with Rs.26,06,807/- total // 5 // amounting to Rs.27,24,839/- was also charged on the account of the complainant. It is very important to mention here that the frivolous charge like that of the better location charges and interest for the late payment was imposed on the complainant, becase the complainant has never applied for the better location and has paid all the instalments due on time and as per the demand made by the O.P. No.2. Further, the said letter also demonstrated that only Rs.16,08,201 has been paid by the complainant and also demanded for the payment of the due amount, amounting to Rs.11,16,635/- till 31/05/2016. Copy of the letter from the O.P. No.2 dated 11.05.2015 is annexed herewith as Annexure C/4. The complainant replied to the said letter from the O.P. No.2 on 16.06.2015 as the said letter was delivered to the complainant on 10.06.2015 and demanded for completion of the development work, as the basic amenities of road, electricity was lacking in the said project of O.P. No.2, before giving the possession of the houses. Apart from this, the complainant also made the dispute with regard to the extra charge imposed on him on account of better location charge and the late payment interest imposed on him. Copy of the letter dated 16.06.2015 has been annexed as Annexure C/5. On the contrary, the O.P. No.2 replied to the letter of the complainant on 14.07.2015 stating that the development has been completed, whereas the joint inspection was done by the complainant, the engineers of O.P. No.2 Mr. Rathore and Mr. Ashok, along with the representatives of the contractor on 12.06.2015 and it was found that the 15-20 major completion works were left for its completion and the same was also communicated to Mr. Verma via telephone, as the complainant also requested him for the quick completion of the left works for taking over // 6 // the peaceful possession of the house and also for completing the other formalities for taking the possession of the allotted house. The complainant made representation of the reply made by O.P. No.2 vide its letter dated 27.07.2015. In this reply, the complainant made it clear by bifurcating each payment made by him amounting total of Rs.19,92,204/- as the payment made by the complainant for the allotted house and also made it clear that the fifth instalment needs to be paid at the time of finishing level and it is important to mention here that the finishing was not completed, the complainant did not disburse the fifth instalment and also assured that he will disburse the fifth instalment once the finishing of the house is complete. After this, the complainant started inquiring about the payments made by him to the O.P. No.2 and also visited the office of the O.P. No.2 for clarification. At this point, it was revealed to the complainant that the payment made by the complainant against the first instalment of Rs.3,84,000/- for the allotted house has not been accounted in the books of the O.P. No.2 and hence the account of the complainant is showing the debt. However, by the perusal of the loan account statement reflecting the debit of Rs.3,84,000/- vide cheque No.300950 dated 17.09.2012 it can be inferred that the disbursement has been made to the O.P. No.2 in the lure of the first instalment. In between this communication between the complainant and the O.P. No.2, the O.P. No.2 cancelled the allotment for the said house to the complainant and gave the absurd reason for the non-payment of the due amount on time. The letter No.4524/San.Adhi.San.Pra.Pra-3/16 dated 12.06.2016 for the cancellation of the allotment was issued to the complainant. In reply to the cancellation letter of the O.P. No.2, the // 7 // complainant wrote a letter to the O.P. dated 12.06.2016 and also explained the default in the accounting maintained by the O.P. No.2. The complainant also submitted the account statement of the loan account maintained by the O.P. No.3 to enhance his stand for being the bonafide purchaser of the allotted house. The O.P. No.2 taking the cognizance of the matter issued a letter vide number 5397/San.Adhi./San.Pra.Pra-III/16 dated 23.06.2016 to the O.P. No.1 inquiring about the status of the cheque No.300950 dated 17.09.2012, since the said cheque has been reflected as debited in the loan account statement maintained by the O.P. No.3. The O.P. No.1 replied to the letter of the O.P. No.2 vide letter dated 03.02.2017 confirming the cheque No.300950 amounting to Rs.3,84,000/- returned on 18.10.2012 as per their record. This particular fact was then informed to the complainant by the O.P. No.2 vide letter No.988/San.Adhi.Prachetra-III/17 dated 04.02.2017. The O.P. No.2 has also asked for the copy of the said cheque for their record from the O.P. No. vide its letter No.1077/San.Adhi/Prichetra-III/17 dated 08.02.2017, , but no reply was ever given by the O.P. No.1 till date. This particular behaviour of the O.P. No.1 amounts to unfair trade practice and also amounts to deficiency in services. Thereafter the complainant made an inquiry with regard to the said cheque with the O.P. No.3, then the O.P. No.3 replied that the said cheque bearing NO.300950 amounting to Rs.3,84,000/- has been returned by CCPC Raipur to Indusind Bank on 19.10.2012 for reason " cheque presented after validity date". The O.P. No.3 also said it cannot make the new cheque for the disbursement unless it receives the original copy of the cheque No.300950 amounting to Rs.3,84,000/-. With the sole intention of resolving this issue the complainant wrote a letter dated // 8 // 09.08.2017 and 14.09.2017 to the O.P. No.1 requesting them to return the original cheque bearing no.300950 dated 17.09.2012 amounting to Rs.3,84,000/- returned to it by O.P. No.3 on 19.10.2012. But to the most disgrace, no hue has been taken by the O.P. No.1 in this regard and no reply has been made till date. The O.P. No.2 again vide its letter No.8235/San.Adhi./Prachetra-III dated 11.10.2017 came up with an optin for the complainant stating for the waiver of 50% of the interest amount charged as penalty provided the complainant pays the total due amount in one instalment. The complainant has reverted back the offer of the O.P. No.2 vide its letter dated 26.10.2017 refering to the issue of the payment of the first instalment for the allotted house. The complainant has also assured the O.P. No.2 that he is in the urgent need of the house and will pay the due amount adequately once the issue highlighted is resolved and also begged for the grant of some more time for resolution of the issue with the O.P. No.1 and the O.P. No.2. The complainant has also sent the legal notice dated 31.10.2017 through his advocate to O.P. NO.1 and the same was delivered to the O.P. No.1 on 01.11.2017 requesting the O.P. No.1 to provide original cheque bearing cheque no.300950 dated 17.09.2012 amounting Rs.3,84,000/- within 7 days from the receipt of the notice, but the O.P. No.1 adopting its adamant behaviour paid no importance to give a reply to the notice. Hence this complaint.
3. The O.P. No.1 filed its written statement and denied the allegations made by the complainant against it. The O.P. No.1 averred that photocopy of the cheque was not sent to the O.P. No.2 but after dishonour, the cheque along with memo dated 18.10.2017 was returned back to the O.P. No.2 on // 9 // 19.10.2017. The cheque No.300950 amounting Rs.3,84,000/-, after dishonour was sent to the Indusind Bank on 18.10.2012 with a notice Presented After Validity. The complainant sent letters dated 09.08.2017 and 14.09.2017 to the O.P. No.1 and demanded the cheque in question, but the receiver of the cheque was Chhattisgarh Housing Board and collector of the amount was also Chhattisgarh Housing Board, therefore, the Chhattisgarh Housing Board has right to receive the cheque, therefore, the cheque could not be sent to the complainant, therefore, the cheque was not returned to the complainant. The complainant was required to make correspondence regarding cheque with the Chhattisgarh Housing Board and not with the Indusind Bank, whereas according to the record, the complainant did not make any correspondence regarding returning of cheque with the Chhattisgarh Housing Board. The complainant himself is liable for his negligence and the O.P. No.1 is not liable. The complainant is not having any account with the O.P. No.1. The complainant is also not maintaining any account with the O.P. No.1 in his name. The complainant is not consumer of the O.P. No.1, therefore, complaint is liable to be dismissed. Actually the cheque No.300950 dated 17.09.2012 was pyable to Chhattisgarh Housing Board and the O.P. No.2 is entitled to receive the same and not the complainant. The complainant has no legal right to demand the cheque and legally he cannot be provided the cheque. The above cheque was brought by the complainant along with letter dated 16.10.2012 before O.P. No.2 on 17.10.2012 for payment of instalment and the O.P. No.2 deposited the same before the O.P. No.1 on 17.10.2012 through deposit slip dated 17.10.2017. The above cheque was sent by the O.P. No.1 for payment to the // 10 // bankers of the complainant i.e. O.P. No.3 and the same was dishonoured with the notice that the cheque in question dated 18.10.2012 was presented after validity. The same was returned by the O.P. No.1 to the O.P. No.2 on 19.10.2012. After receiving cheque by the O.P. No.2, till date cheque was not demanded, which shows that the original cheque was received by the O.P.No.2, which is entitled to get the cheque. This Commission has no jurisdiction to hear the complaint, therefore, the complaint is liable to be dismissed.
4. The O.P. No.2 filed its written statement and denied the allegations made by the complainant against it. The O.P. No.2 averred that the complainant paid a sum of Rs.3,60,000/- on 21.01.2012 in respect of acceptance of allotment of House No.127 . The complainant was required to pay a sum of Rs.3,84,000/- to the Chhattisgarh Housing Board towards first instalment. The representative of the O.P. No.1 Indusind Bank was sitting in the premises of the O.P. No.2 Chhattisgarh Housing Board, who received cheque in question No.300950 dated 17.09.2012 of Rs.3,84,000/- from the complainant and deposited the same in O.P. Bank on 17.10.2012 through cheque deposit slip dated 17.10.2012. Vide letter dated 04.03.2014 (Annexure C/3), the O.P. No.2 demanded the balance amount of Rs.8,64,204/- towards second and third instalment and shown the same as received and by doing so, it has not committed any error. In the letter dated 11.05.2015 (Annexure C-3) the O.P. No.2 mentioned that a sum of Rs.3,84,000/- was received and mentioning the same, the O.P. No.2 did not commit any error of fact or law. If the O.P. No.2 is demanding a sum of Rs.3,84,000/- from the complainant, as the payment of the said amount did not come in the account of // 11 // Chhattisgarh Housing Board, then there is no error of facts or law. The O.P. No.2 did not commit any deficiency in service against the complainant. The remaining payment made by the complainant is not disputed but it is specifically denied that the demand made vide letter dated 11.05.2015 (Annexure C-4) for better location charges and interest on late payment, is fake demand. According to the complainant on 06.03.2014 the above both instalment i.e. the second and third instalment and out of Rs.4,23,484/- towards first instalment Rs.3,84,000/- was deducted and after making payment Rs.8,64,204/- including Rs.39,8484 /- to the O.P. No.2 again as mentioned in the allotment letter dated 26.04.2012 (Annexure R-1) within maximum four months i.e. till 06.07.2014, the complainant was required to deposit the fourth instalment Rs.4,12,360/- and within 10 months till 06.01.2016 he was required to pay Rs.4,12,360/- as fifth instalment. The amount was not deposited in the account of Housing Board, therefore, as per rule interest @ 10% was calculated and interest amount Rs.1,18,031.95 was demanded which is fully reasonable and legal. The O.P. No.2 has not committed any deficiency in service by demanding interest on the late payment and better location charges. The plot and house JR-MIG(1)-127 of the complainant is situated at 18 feet main road, therefore, the house no.JR-MIG(1)-127 Sector 29, Naya Raipur was treated as plot and house of better location. Vide letter dated 08.02.2017 (Annexure C-12, the O.P No.2 demanded photocopy of Cheque No.300950 from the O.P. N.1. The CCPC returned the original cheque No.300950 dated 19.10.2012 to the O.P. No.1 on the ground that " cheque presented after validity date". The complainant written the O.P. no.1 to return the original cheque NO.300950. The O.P. // 12 // admits that it written the letter to the complainant on 11.10.2017 and reply was received on 26.10.2017. The O.P. No.2 did not commit any deficiency in service. The complaint is liable to be dismissed against it.
5. The O.P. No.3 , inspite of service of notice, did not appear before this Commisison and did not file written statement, affidavit and documents.
6. The complainant has filed documents. Annexure C/1 is copy of acknowledgement letter with copy of the cheque and cheque deposit slip dated 16.10.2012, Annexure C/2 is copy of the loan account statement dated 30.06.2017, Annexure C/3 is copy of demand letter dated 04.03.2014, Annexure C/4 is copy of the letter dated 11.05.2015 from the O.P. No.2, Annexure C/5 is copy of the letter dated 16.06.2015 from the complainant, Annexure C/6 is copy of reply dated 14.07.2015 of the O.P. No.2, Annexure C/7 is copy of the letter dated 27.07.2015 from the complainant, Annexure C/8 is copy of the letter dated 12.05.2016 from the O.P. No.2, Annexure C/9 is copy of letter dated 12.06.2016 from the complainant, Annexure C/10 is copy of letter dated 23.06.2016 from the O.P. No.2 to .O.P. No.1, Annexure C/11 is copy of letter dated 04.02.2017 from O.P. No.2 to the complainant, Annexure C/12 is copy of the letter dated 08.02.2017 from O.P. No.2 to O.P. No.1, Annexure C/13 are copy of the letter dated 10.07.2017 to the O.P. No.3 and its reply dated 08.08.2017 via mail to the complainant, Annexure C/14 is copy of the letters dated 14.09.2017 and 09.08.2017 given by the complainant to the O.P. No.1, Annexure C/15 are copy of the letter and reply dated 11.10.2017 and 26.10.2017.
// 13 //
7. The O.P. No.1 has filed copy of the complaint made by the Complainnant to Bank Ombudsman.
8. The O.P. No.2 has filed documents. Annexure R-1 is allotment order dated 26.04.2012, Annexure R-2 is Circular dated 19.03.2011, Annexure R-3 is relevant portion of Book Sangwari issued by C.G. Housing Board, document No.4 is Circular dated 24.01.1980 issued by M.P. Housing Board, document No.5 is Plot Measurement Certificate.
9. Shri Shrijan Shukla, learned counsel appearing for the complainants has argued that the complainant applied for the allotment of independent house in developing project of O.P. No.2 in Naya Raipur township at Sector
29. Considering the application of the complainant, the O.P. No.2 vide its letter No.4189/San. Adhi/Ra.Pa.San-1/12 dated 26.04.2012 allotted the independent house No.127 to the complainant under the Self Finance Scheme. The complainant paid Rs.3,60,000/- on 21.01.2012 as the registration charges for the confirmation of the said allotment to the complainant and also complied with the other formalities, as directed. Thereafter for the remaining disbursement to be made by the complainant, he applied for availing the loan facility with O.P. No.3. O.P. No.3 was pleased enough to disburse the loan to complainant as per the requirement of the O.P. No.2. The complainant has deposited the first instalment of Rs.3,84,000/- obtained from O.P. No.3 to the account of the O.P. No.2 having its account at the branch of O.P. No.1 on 17.10.2012 through cheque No.300950, the same has also been acknowledged by the O.P. No.2 in its demand letter dated 04.03.2014. Thereafter as per O.P. No.2's demand, the complainant has paid Rs.8,64,204/- vide cheque No.576525 dated 06.03.2014 // 14 // and Rs.3,84,000/- vide cheque No.995771 dated 11.09.2014. The complainant received the communication from the O.P. No.2 as the final allotment letter No.1520/San.Adhi./San.Pra.Pra-2/15 dated 11.05.2015. In the said letter the total bifurcation for the total cost of the house was communicated to the complainant as Rs.26,06,807/- and the interest of Rs.1,18,032/- for the late payment along with Rs.26,06,807/- total amounting to Rs.27,24,839/- was also charged on the account of the complainant. It is very important to mention here that the frivolous charge like that of the better location charges and interest for the late payment was imposed on the complainant, becase the complainant has never applied for the better location and has paid all the instalments due on time and as per the demand made by the O.P. No.2. It was revealed to the complainant that the payment made by the complainant against the first instalment of Rs.3,84,000/- for the allotted house has not been accounted in the books of the O.P. No.2. In between this communication between the complainant and the O.P. No.2, the O.P. No.2 cancelled the allotment for the said house to the complainant and gave the absurd reason for the non-payment of the due amount on time. In reply to the cancellation letter of the O.P. No.2, the complainant wrote a letter to the O.P. dated 12.06.2016 and also explained the default in the accounting maintained by the O.P. No.2. The complainant also submitted the account statement of the loan account maintained by the O.P. No.3 to enhance his stand for being the bonafide purchaser of the allotted house. The O.P. No.2 taking the cognizance of the matter issued a letter vide number 5397/San.Adhi./San.Pra.Pra-III/16 dated 23.06.2016 to the O.P. No.1 inquiring about the status of the cheque No.300950 dated 17.09.2012.
// 15 // The O.P. No.1 replied to the letter of the O.P. No.2 vide letter dated 03.02.2017 confirming the cheque No.300950 amounting to Rs.3,84,000/- returned on 18.10.2012 as per their record. The O.P. No.2 has also asked for the copy of the said cheque for their record from the O.P. No.1 vide its letter No.1077/San.Adhi/Prichetra-III/17 dated 08.02.2017, but no reply was ever given by the O.P. No.1 till date. The O.P. No.3 also said it cannot make the new cheque for the disbursement unless it receives the original copy of the cheque No.300950 amounting to Rs.3,84,000/-. The complainant wrote a letter dated 09.08.2017 and 14.09.2017 to the O.P. No.1 requesting them to return the original cheque bearing no.300950 dated 17.09.2012 amounting to Rs.3,84,000/- returned to it by O.P. No.3 on 19.10.2012. But to the most disgrace, no hue has been taken by the O.P. No.1 in this regard and no reply has been made till date. The OPs have committed deficiency in service and also unfair trade preatice by not returning the said cheque and by charging interest for late payment to the complainant. The complainant request to direct the O.P. No.2 to waive off the interest which has been imposed by them on the complainant and to deliver the possession of the house after completing the required formalities. The complainant is entitled to get compensation as mentioned in the complaint. The complaint be allowed.
10. Shri Santosh Tiwari, learned counsel appearing for the O.P. No.1 has argued that photocopy of the cheque was not sent to the O.P. No.2 but after dishonour, the cheque along with memo dated 18.10.2017 was returned back to the O.P. No.2 on 19.10.2017. The cheque No.300950 amounting Rs.3,84,000/-, after dishonour was sent to the Indusind Bank on 18.10.2012 with a note Presented After Validity. The complainant sent letters dated // 16 // 09.08.2017 and 14.09.2017 to the O.P. No.1 and demanded the cheque in question, but the receiver of the cheque was Chhattisgarh Housing Board and collector of the amount was also Chhattisgarh Housing Board, therefore, the Chhattisgarh Housing Board has right to receive the cheque, therefore, the cheque could not be sent to the complainant, therefore, the cheque was not returned to the complainant. The complainant is not having any account with the O.P. No.1. The complainant is also not maintaining any account with the O.P. No.1 in his name. The complainant is not consumer of the O.P. No.1. After receiving cheque by the O.P. No.2, till date cheque was not demanded, which shows that the original cheque was received by the O.P.No.2, which is entitled to get the cheque. This Commission has no jurisdiction to hear the complaint, therefore, the complaint is liable to be dismissed.
11. Shri C. Motisagar, learned counsel appearing for the O.P. No.2 has argued that in the letter dated 11.05.2015 (Annexure C-3) the O.P. No.2 mentioned that a sum of Rs.3,84,000/- was received and mentioning the same, the O.P. No.2 did not commit any error of fact or law. If the O.P. No.2 is demanding a sum of Rs.3,84,000/- from the complainant, as the payment of the said amount did not come in the account of Chhattisgarh Housing Board, then there is no error of facts or law. The O.P. No.2 did not commit any deficiency in service against the complainant. The remaining payment made by the complainant is not disputed but it is specifically denied that the demand made vide letter dated 11.05.2015 (Annexure C-4) for better location charges and interest on late payment, is fake demand. The amount was not deposited in the account of Housing Board, therefore, as per rule // 17 // interest @ 10% was calculated and interest amount Rs.1,18,031.95 was demanded which is fully reasonable and legal. The O.P. No.2 has not committed any deficiency in service by demanding interest on the late payment and better location charges. The plot and house JR-MIG(1)-127 of the complainant is situated at 18 feet main road, therefore, the house no.JR-MIG(1)-127 Sector 29, Naya Raipur was treated as plot and house of better location. The O.P. No.2 did not commit any deficiency in service. The complaint is liable to be dismissed against it.
12. None appeared for the O.P. No.3 on 11.05.2017, when the case is fixed for final arguments.
13. We have heard the learned counsels for the parties and have gone through the evidence and record of the case, very carefully.
14. On the basis of contentions raised by the parties following points are needed to be discussed : (A) Whether the complainant has proved that the said instalment has been paid in time and the said returned unpaid cheque has not been handed over to the complainant by O.P. No.2 till date. (B) Whether O.P. No.2 has given deficiency in service to the complainant by not returning the said bounced cheque and (C) Whether the complainant is entitled to get reliefs as claimed from the OPs.
15. The O.P. No.1 in its written statement took certain objections like, the complainant is not "consumer" of the O.P. No.1 and the O.P. No.1 is not "service provider". The complainant is not having any account with the O.P. No.1, therefore, complaint is liable to be dismissed. The complainant has no legal right to demand the cheque and legally the complainant cannot be // 18 // provided the cheque by the O.P. No.1. We are agree with this contention of O.P. No.1. But so far as the contention of O.P. No.1 that the complainant was required to make correspondence regarding cheque with the Chhattisgarh Housing Board and not with the Indusind Bank, is concerned, the complainant has filed document Annexure C-13 dated 10.07.2017, Anenxure C-14 dated 14.09.2017 and letter dated 09.08.2017. These letters have been addressed to the O.P. No.1 and copies were marked to O.P. No.2. Hence it cannot be said that the correspondence has not been done with the O.P. No.2. It is established fact that the O.P. No.1 was giving banking services to the O.P. No.2 in its premises and the O.P. No.1 has acknowledged the pay in slip of the said cheque to complainant. As such it was his moral duty to respond the complainant's letter specially when complainant is writing him frequently.
16. In this case it is an admitted fact that the O.P. No.2 vide its letter No.4109/San.Adhi/Ra.Pa.San-1/12 dated 26.04.2012 allotted the independent house No.27 to the complainant under the Self Finance Scheme and for availing this particular allotted house, the complainant paid Rs.3,60,000/- on 21.01.2012 as the registration charges for the confirmation of said allotment to the complainant. As per admission of the O.P. No.2 in his written statement in para 5 second para that remaining payment by the complainant to O.P. No.2 are undisputed.
17. In this case, the main dispute is whether the said cheque of first instalment has been deposited to O.P. No.2 in time and if the cheque is returned, whether the said cheque has been handed over to the complainant by the O.P. No.2 within reasonable time..
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18. The complainant has pleaded that the first instalment of Rs.3,84,000/- cheque NO.300950 obtained from O.P. No.3 has been deposited to O.P. No.2 on 17.10.2012. In support of his contention, the complainant tendered in evidence his affidavit along with copy of acknowledgment letter from O.P. No.2 (Annexure C-1). We have seen this document. We observed that O.P. No.2 has acknowledged the receipt of said cheque on 17.10.2012 with O.P. No.2's seal and signature. In rebuttal of the above, the O.P. No.2 has not adduced any evidence. As such we have no other alternative, except to accept the above pleading of the complainant.
19. Thereafter the O.P. No.2 has accepted continuously the receipt of payment of said cheque till before 11.05.2015. First time after deposition of the said cheque on 11.05.2015 i.e. after period of 2 ½ years, the O.P. No.2 informed and acknowledged receipt of Rs.16,08,204/- instead of Rs.19,92,204/-. The complainant informed O.P. No.2 about details of his payment on 27.07.2015 and requested to verify the record, but O.P. No.2 has not acted as per his request. The complainant has again written letter to O.P. No.2 on 12.06.2016 for adjustment of the said instalment of Rs.3,84,000/-. For the first time on 03.02.2017, the O.P. No.2 has enquired about the said cheque from the O.P. No.1 and in response to this letter, the O.P. No.1 has informed to O.P. No.2 that the said cheque has been returned upaid to O.P. No.2. Thereafter the O.P. No.2 demanded photocopy of the said cheque from O.P. No.1 vide O.P. NO.2 letter dated 08.02.2017 but the document filed in this case reveals that O.P. No.1 has not acceded the request of the O.P. No.2. Copies of complainant's letter dated 10.07.2017, 09.08.2017 and 14..09.2017 were endorsed to O.P. No.2 but the O.P. No.2 has // 20 // not responded the same. Looking to the above facts, it is established that the said cheque has not been returned to the complainant till today. It shows deficiency in service to the complainant by the O.P. No.2.
20. The cheque No.300950 for Rs.3,84,000/- dated 17.09.2012 is not a customer's cheque. It is a Banker's Cheque issued by O.P. No.3 RASECC Disbursement Account. The banker's cheque has been issued by O.P. No.3 after having receipt of value of cheque. Complainant has filed Statement of Account which reveals that after debiting loan account of the complainant, the said Banker's cheque has been issued in favour of the O.P. No.2. O.P. No.2 has not handed over this cheque with due diligence and handled carelessly. Therefore, consequences arises out of this act, the O.P. No.2 will be solely responsible. It was the duty of the O.P. No.2 to return the cheque in time. The said cheque should have got revalidated or in lieu of misplaced cheque a duplicate banker's cheque might have been issued. O.P. No.3 is duty bound to revalidate the banker's cheque or to issue a duplicate banker's cheque. The O.P. No.2 is liable for financial loss occurred to the complainant due to negligent act of the O.P. No.2. In this situation, complainant is not liable to pay interest twice i.e. to O.P. No.2 as well as O.P. No.3 Bank for the amount raised from the Bank. Therefore, it will be just and proper to direct O.P. No.2 to waive off the interest which has been imposed by O.P. No.2 on account of that particular entry of Rs.3,84,000/- dated 17.09.2012.
21. The next question that falls for consideration is as to whether better location charges and interest on late payment is fake demand. In this // 21 // context, we reproduce the relevant portion of document Annexure R-1, R-2 & R-3 filed by the O.P. No.2.
In letter dated 26.04.2012 sent by the O.P. No.2 to the complainant (Annexure R-1) it is mentioned that **yhtjsaV] Hkw&la/kkj.k 'kqYd] Hkou vuqKk 'kqYd] chek 'kqYd] dkWru lfoZl pktsZl] tydj izHkkj] csVj yksds'ku pktsZl] dkuZj pktsZl ,oa vU; izHkkj vfrfjDr ns; gksxkA tks Hkou ds vafre ewY; fu/kkZj.k Ik'pkr~ Hkou ds vkf/kiR; ds iwoZ lwfpr fd;k tkosxkA** In Circular No.06 dated 15.03.2011 (Annexure R-2), issued by the Chhattisgarh Housing Board it is mentioned that **NRrhlx<+ x`g fuekZ.k e.My ds 31oha e.My lfEeyu fnukad&18-02-2011 dh in la[;k dzekad&14 ij ikfjr ladYi dzekad&863&14@31@02@2011 ds ifjikyu esa e.My }kjk fopkjksijkar loZlEefr ls fu.kZ; fy;k x;k] fd e.My }kjk HkkM+k dz;] ,deq'r] LofoRrh; ;kstuk ds varxZr vkcafVr fgrxzkfg;ksa dks ;kstuk ds fuf'pr le;kof/k ds 06 ekg ckn ds foyafcr vof/k dk fgrxzkfg;ksa dks e.My esa tek jkf'k ij 7-5 izfr'kr C;kt fn;k tk;s ,oa fgrxzkgh }kjk jkf'k tek djus ds foyafcr vof/k dk 10 izfr'kr dh nj ls C;kt fy;s tkus dh dk;Zokgh dh tkosA vkns'k fnukad&01-04-2011 ls izHkko'khy ekuk tkosxkA** In Sangwari 2014 (Annexure R-3), it is mentioned that :-
**Ikz- csVj yksds'ku 'kqYd fdl izdkj Hkkfjr fd;k tkrk gS\ mRrj& fufeZr Hkou vPNh fLFkfr ;k eq[; lM+d ij gS] rks csVj yksds'ku ds ifjf/k esa vkus ij izHkkj fy;k tkrk gSA ¼ifji= dzekad&925 fnukad&24-01-1980 e.My HkksikyA½ // 22 // iz- csVj yksds'ku D;k gS\ mRrj& e.my ds tks Hkou vPNs LFkku ij fLFkr gSa] vFkkZr~ eq[; lM+d ij fLFkr gS ij Hkw[k.M ewY; dk 10 izfr'kr rFkk tks Hkou [kqyh Hkwfe ds lkeus fLFkr gS mu ij Hkw[k.M ewY; dk 5 izfr'kr vfrfjDr izHkkj csVj yksds'ku pktZ ds :Ik esa olwy fd;k tkrk gSA ;g izHkkj 10 izfr'kr dkuZj pktZ ds vfrfjDr gSA ¼ifji= dzekad&725@l-iz- @2x81@72 fnukad&24-01-2008½**
22. The O.P. No.2 pleaded in his written statement in para 5 that the plot and house JR MIG (1) 127 of the complainant is situated at 18 feet main road, therefore, the house no JR MIG (1) 127 Sector 29, Naya Raipur was treated as plot and house of better location and this letter is duly acknowledged by the complainant and that as per the Board's Meeting decision about interest on late payment on deposit was effective form 01.04.2011. This averment of the O.P. No.2 has not been rebutted by the complainant. In these circumstances, it is proper for the O.P. No.2 to charge better location charges and interest on late payment on deposit other than the said cheque deposit. Thus, the complainant is not entitled for reliefs in connection with better location charges and interest on late payment other than said cheque of Rs.3,84,000/- date 17.10.2012.
23. So far as the liability of the O.P. No.1 & O.P. No.3 is concerned, they did not commit any deficiency in service, hence they are not lible to compensate the complainant.
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24. The complainant prayed for granting Rs.8,84,000/- on account of rent expenses but the complainant is unable to prove the expenses, therefore, the complainant is not entitled for any amount from the OPs towards rent expenses.
25. So far as compensation for payment of Rs.6,00,000/- on account of interest paid is concerned, relief for the said cheque amount Rs.3,80,000/- and its interest portion is being given , therefore, the complainant is not entitled for interest portion of the loan account. So the interest @ 18% p.a. on the entire amount also does not arise.
26. The complainant prayed for granting Rs.5,00,000/- towards compensation for mental agony. In the instant case the O.P. No.2 has not returned the banker's cheque despite repeated reminder till date. It shows that the O.P. No.2 is intentionally avoiding from its liability to return the said cheque, therefore, the complainant is entitled for compensation towards mental agony. The complainant demanded Rs.5,00,000/- towards compensation for mental agony, which is on higher side. Looking to the facts and circumstances of the case, it is just and proper to award Rs.50,000/- towards compensation for mental agony to the complainant against the O.P. No.2.
27. So far as cost of litigation is concerned, the complainant demanded Rs.2,00,000/-, which is on higher side. It is just and proper to award Rs.10,000/- towards cost of litigation to the complainant against the O.P. No.2.
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28. Therefore, complaint of the complainant is partly allowed and following directions are issued to the O.P. No.2 :-
(i) To return the original cheque bearing cheque No.300950 dated 17.09.2012 amounting to Rs.3,80,000/- to the complainant for its revalidation. To extend full cooperation to get the duplicate Banker's cheque as per O.P. No.3's rules in case cheque is misplaced by the O.P. No.2. Thereafter the complainant will handover the revalidated or duplicate banker's cheque to O.P. No.2.
(ii) To waive upto date interest which accrued due to negligent act of the O.P. No.2 in connection with said banker's cheque.
(iii) To pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards compensation for mental agony to the complainant.
(iv) To pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant.
This order is to be complied within 45 days from the date of this order.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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