P.S.MISRA vs USHA GUPTA

THIS is an appeal against the order dated 25.6.1998 passed by the District Forum, Deoria in Complaint Case No. 1078/97. The facts of the cases stated in brief are that the complainant filed a complaint for recovery of Rs. 1,02,489.42 alongwith interest at the rate of 24% per annum as damages under different heads. According to the complainant he had booked a Maruti Van with Opposite party No. 1 for which opposite party No. 1 demanded a sum of Rs. 92,918/- which was paid and the rest of the money as to be in the form of loan from opposite party No. 2. On this request the complainant paid a sum of Rs. 92,918/- by means of a cheque dated 22 July, 1997 which was encashed by the opposite party No. 1. At the same time opposite party No. 1 was also Managing Director of opposite party No. 2.

WHEN the Van was not made available, complainant contacted opposite party No. 1 on 11.8.1997 when she was asked to deposit a sum of Rs. 5,158/- which amount was also paid on 11.8.1997 by means of a cheque. This was also encashed by opposite party No. 1. In this way a sum of Rs. 98,076/- was paid to the opposite party No. 1. WHEN the Maruti Van was not made available till 22 August, 1997 she contacted him on 23rd of October, 1997 and made an application for refund of the entire amount alongwith interest. Opposite party No. 1 assured in writing, by writing on the application of the complainant, that the entire amount will be refunded by 15.11.1997. On 19th of November, 1997 a cheque for Rs. 1,02,489.42 was issued by opposite party No. 1 in favour of the complainant. This cheque was presented for encashment on Allahabad Bank at Deoria which was to be paid by Central Bank of India at the same place. The cheque was not paid as sufficient funds were not there in the account of opposite party No. 1. Before that another cheque of the same amount was issued by opposite party No. 1 on 19.10.1997 but the same was dishonoured. The complainant has, therefore, filed the present complaint for refund of the entire amount as stated above. The opposite party No. 1 in the written statement had admitted receipt of the amount and a promise to deliver one Maruti Van. The complainant was to bear 70% of the value of the Maruti Van by herself and the rest of the amount was to be arranged as loan from opposite party No. 2. It is further alleged that an amount of Rs. 98,076/- was received by the opposite party No. 1 from the complainant but the complainant did not complete the due formalities for taking loan. Hence the Maruti Van could not be made available. The complainant gave threats to opposite party No. 1, hence he had to issue a cheque on 19.11.1997 for an amount of Rs. 1,02,489.42. It is further alleged that it was agreed between the parties that the opposite party No. 1 shall refund an amount of Rs. 88,076/- only as rest of the amount of Rs. 10,000/- shall be deducted towards expenses. As opposite party No. 1 had issued a cheque under pressure to the complainant for a sum of Rs. 1,02,489.42 on 19.11.1997, but at the same time instructed the Bank not to encash the cheque. A criminal case was also lodged by opposite party No. 1 against the complainant for which he had to remain in jail for some time.

After considering the entire evidence on record, learned District Forum came to the conclusion that the amount has to be refunded by the appellant to the complainant.

AGGRIEVED against this order, the present complaint has been filed. We have heard learned Counsels for the parties and have perused the evidence on record.

LEARNED Counsel for the appellant has argued that delivery date of the vehicle was four months after the proforma invoice and as the period had not expired, the claim filed is premature. This point was not raised before the learned District Forum as will be clear from the judgment of the learned District Forum because there is no discussion on this point in the findings of the learned District Forum. A copy of the complaint is on record. Copy of the written statement has not been filed in the order to substantiate the fact that this plea was taken before the learned District Forum. Therefore, opposite party No. 1 - appellant cannot have the right to raise this plea at this stage. LEARNED Counsel for the complainant had argued that the claim for recovery of the amount deposited for supply of Maruti Van can be recovered as the supply of the Maruti Van has not been made. In support of his claim he has placed reliance on a number of cases. In case of Sipani Automobiles Limited & Ors. v. Susheela Gupta & Ors., III (1996) CPJ 306, decided by Rajasthan State Consumer Disputes Redressal Commission, Jaipur, it was held that if a car has been booked and the same is not supplied, then the booking amount is to be refunded back to the concerned. If the same is not returned then it amounts to deficiency of service. A similar view was taken in the case of M/s. Competent Automobiles Company Limited v. Col. Ravinder Nath Kamra, III (1996) CPJ 420, decided by State Commission, New Delhi. Similarly in the case of M/s. Wheel World of Ambala Cantt. v. S.D. Verma, II (1992) CPJ 568, decided by Haryana State Commission, Chandigarh, the same question was involved and it was decided that in case deposit is not refunded then the person depositing the amount is a consumer and there is a deficiency in service. The next case is M/s. Haryana Credit and Leasing Limited v. Krishna Munjal, 1991 CPC 13. In this case the complainant had deposited an amount for booking a new Maruti car and in the advertisement it was undertaken by the appellant to arrange for the balance amount as loan. After the amount was deposited, the appellant refused to book the car and on these facts it was held that the appellant was liable to pay to the complainant compensation for not booking the car as advertised by them. The next case is Bharat Motor v. Usha Rani Samal & Ors., I (1995) CPJ 33 (NC). In this case also a deposit was made for purchase of a car. When the party applied for refund of the amount, the amount was not refunded. It was held that the liability for refund of the amount by the manufacturer is there and the refund order passed against the manufacturer was upheld. Lastly is the case of Punjab Water Supply and Sewage Board v. M/s. Udaipur Cement Works & Ors., I (1996) CPJ 7 (SC). In this case the facts were that an order for supply of cement was placed with the respondent and an amount of Rs. 23,62,900/- was remitted to the respondent by means of a draft. 2500 M.T. cement was to be supplied before 7.3.1988. But the goods were supplied to the complainant in the month of November, 1990 and that too at the higher rate and not at the originally agreed rate. The State Commission had found deficiency in service in supply of cement for which confirmed order was placed. It allowed the refund with 12% interest for a period for which the amount of deposit remained with the company, but on appeal the National Commission reversed the order of the State Commission, and dismissed the appeal. In Appeal, Hon''ble Supreme Court after considering Section 2(c), (d), (f), (g), (o) and other provisions of the Consumer Protection Act, allowed the appeal and remanded the case to the National Commission. Thus this judgment also supports the case that if an amount has been deposited for supply of certain goods and the goods are not supplied or supplied late, then it is a consumer dispute. Thus in view of these case laws, we come to the conclusion that in the present case the appellant was bound to refund the amount deposited for supply of Maruti Van to the complainant as the Van was not supplied by the opposite party. It has further been argued by the learned Counsel for the appellant that the complainant had put pressure on opposite party No. 1, hence he had issued a cheque for the deposited amount. There is no evidence on record to support this plea. Learned District Forum has also not believed this theory. The appellant has not lodged any complaint with the police or any other authority in order to show that threats were given to the opposite party No. 1 for refund of the amount. When a cheque has been issued by the appellant in favour of the complainant and it was dishonoured, it was the duty of the appellant - opposite party No. 1 to have reimbursed the amount but as he failed to do so, he is liable for the consequences.

IT has further been argued that the formalities of income tax clearance certificate, domicile certificate, etc. were not completed. IT may be mentioned that all these formalities were to be completed only when opposite party No. 2 had arranged for the loan and the delivery of the Maruti Van was assured. When this was not done it was not the duty of the complainant to have fulfilled these formalities. Therefore, it cannot be stated that the complainant was guilty of latches on his part. IT has further been argued by the learned Counsel for the appellant that once criminal case has been filed, a claim for refund of the booking amount does not lie. This is not a valid argument and cannot be accepted. The Criminal Court can only convict a person, but in the present case the case is for refund of the amount deposited. Thus we find that this appeal has no force and is liable to be dismissed. ORDER The judgment and order passed by the District Forum, Deoria in the Complaint Case No. 1078/97 is upheld and the appeal is dismissed. We assess the cost of the proceedings at Rs. 1,000/- which the respondent is liable to get. Let the copy of this order be made available to the parties as per rules. Appeal dismissed.