RAJA TRACTORS vs PRALHAD SHANKAR PATIL

-THE present appeal is filed by original opponent No. 1 Raja Tractors against the judgment and order dated 18. 6. 2003 in Complaint Case No. 162/2003 passed by District Consumer Forum, Jalgaon.

RESPONDENT No. 1/complainant''s case before the Forum is that, he had requested respondent No. 2 for loan amount for purchasing tractor and trolley. He complied all the terms and conditions required for application to be submitted for loan amount. It is contended that respondent No. 2 sanctioned loan of Rs. 3,29,127. It is contended that, he deposited Rs. 1,00,000 with respondent No. 2 towards society shares, subscription and some amount of deposit. It is contended that, respondent No. 2 had taken responsibility to pay balance amount of loan and accordingly, he gave certificate. It is further contended that, respondent No. 2 deposited amount of Rs. 88,881 with the appellant and accordingly, tractor and trolley were given to the complainant. It is contended that, respondent No. 2 had taken guarantee of repayment of the loan. He had asked the appellant to collect balance amount from respondent No. 2. It is contended that, appellant in December 1999 took possession of the tractor and trolley forcibly. He suffered heavy loss and thus, he approached the Forum and filed complaint. Complainant requested for directing appellant to hand over the tractor and trolley to the complainant. He also requested to direct the respondent No. 2 to make payments of instalment and direct appellant to pay compensation from December 1999 at the rate of Rs. 1,000 per day. Appellant appeared before the Forum and resisted the claim. It is contended that, respondent No. 2 had given undertaking on 1. 10. 1998 about payment of the loan amount. Accordingly, amount of Rs. 77,881 was deposited with him. It is contended that, on 1. 10. 1998 appellant handed over the tractor and trolley to the complainant. The transaction was not completed as the price of tractor and trolley was not paid. It is contended that, respondent No. 2 had given 3 post-dated cheques. First cheque was not encashed, it was bounced. It is contended that, appellant received letter from respondent No. 2 on 20. 2. 1999 asking him to return post-dated cheques as the Chairman has resigned from Patsanstha and there is new Chairman. It is contended that, new Chairman will issue cheques. Thus, it is contended that, there is no relationship of consumer and seller. It is contended that, as per letter appellant had been to complainant. It is contended that, as the respondent No. 2 did not sanction the loan he could not make payment before 31. 3. 1999, complainant did not fulfil the requirement. Complainant told that, as respondent No. 2 did not sanction the loan he could not make the payment. He himself handed over tractor and trolley to the appellant. There is no deficiency on the part of appellant.

The Forum below after going through the papers and hearing the parties allowed the complaint and directed the present appellant to pay Rs. 77,781 with interest @ 9% p. a. from 1. 1. 2000. The Forum also directed the appellant to pay Rs. 1,000 towards mental agony and Rs. 500 towards cost.

BEING aggrieved by the said judgment and order passed by District Forum, original opponent No. 1 came in appeal. We heard learned Counsel Mr. Bhangale for the appellant, learned Counsel Mr. S. A. Pradhan for respondent No. 1, learned Counsel Mr. P. B. Shirsath for respondent No. 2. Learned Counsel Mr. Bhangale submitted that the Forum below erred in directing the appellant to pay Rs. 77,781 with interest. Learned Counsel submitted that, there is no prayer in complaint about refund of Rs. 77,881. The prayer was in respect of handing over the tractor and trolley in question. Learned Counsel relied on Canara Bank v. Arvind Babel and Another, 2002 NCJ 501 (NC ). Learned Counsel further submitted that, there is no deficiency in service on the part of present appellant. On the other hand, learned Counsel Mr. Pradhan submitted that, amount of Rs. 77,781 has been paid by respondent No. 2 to appellant and accordingly appellant issued receipt in the name of complainant. He submitted that, tractor and trolley are with appellant and thus, the order of the Forum cannot be said to be illegal.

WE perused the papers and gave our anxious thoughts to the arguments advanced by Counsel for both sides. On perusal of papers, it reveals that the tractor and trolley were handed over to the complainant on 1. 10. 1998 by the present appellant. It has also come on record that the same were in his possession up to 31. 12. 1999. Thus, it is apparent that, respondent No. 1/complainant used the tractor and trolley for the period 1. 10. 1998 to 31. 12. 1999. It is also apparent that, respondent No. 2 had sanctioned the loan of Rs. 3,29,127 to the complainant. Complainant had deposited the amount of Rs. 1,00,000 with the society towards share, subscription etc. From the said amount respondent No. 2 had deposited amount of Rs. 77,881 with the appellant. It has also come on record that, complainant did not fulfil the requirements for repayment of the loan by respondent No. 2 to the appellant. The post-dated cheques issued by respondent No. 2 in favour of the appellant, could not be encashed, the first cheque was bounced. Not only that, but earlier Chairman of the Patsanstha resigned and it was requested to return the post-dated cheque to the Patsanstha so that new Chairman will issue the cheques. It is apparent that, instalments as agreed were not paid to the present appellant towards tractor and trolley. It has also come on record that, remaining amount of Rs. 22,353 has been returned by respondent No. 2 to the complainant on 1. 3. 2001. The documents on record go to show that, as instalments of the tractor and trolley were not paid to the appellant the tractor and trolley were handed over to him. We have mentioned that the tractor and trolley were used by appellant for the period from 1. 10. 1998 to 31. 12. 1999. There is absolutely no deficiency in service on the part of present appellant. No remaining instalments have been paid to the appellant either by respondent No. 2 or the complainant. Complainant accepted the remaining amount of Rs. 22,353 paid by respondent No. 2. Even there was no prayer about refund of the money which were given to the appellant by respondent No. 2. Relief which was not prayed ought not to have granted by the Forum. We have mentioned that, there is no deficiency in service on the part of appellant. Order passed by Forum is not legal and valid. Thus, we are inclined to allow the appeal. We pass the following order. ORDER 1. Appeal is allowed. 2. The impugned order passed by the Forum is hereby quashed and set aside. 3. Complaint stand dismissed. 4. In the circumstances, parties to bear their own cost. 5. Copies of the order be furnished to the parties.

Appeal allowed.