SAKHRAM TRIPATHI vs U.P. STATE CO-OPERATIVE AGRICULTURE And LAND DEVELOPMENT BANK

THE complainant Sakhram Tripathi, resident of Baswa, District Fatehpur filed this complaint on 30.11.1992. Briefly stated the facts contained in the complaint are as follows.

LATE Sri Udai Narain Tripathi, father of the complainant approached the Land Development Bank, Branch of Khaga, Distt. Fatehpur for a loan to purchase HMT tractor and applied for loan. The Branch Manager of the Bank alongwith Field Officer put pressure on his father that grant of loan would be facilitated in case he goes for an Escorts tractor and therefore he agreed to take an Escorts tractor by loaning process through the said Bank. The complainant''s rather was given certain documents and forms which he signed. Since the complainant''s father did not know English, he merely put in his signature on the papers and documents. A loan of Rs. 98,000/- was sanctioned by the Bank. The contribution of Rs. 2,020/- and Rs. 4,880/- was made by the father of the complainant on 30.5.1987. The Opposite Party No. 1 entered into a conspiracy with Opposite Party Nos. 2 and 3 and got the formalities completed without the knowledge of the complainant''s father. The amount of loan sanctioned was not given to the complainant''s father nor any records to this effect were made available to him. He was given a tractor but trolley and cultuvator and other accessories were not given to him for which he had to pay an extra amount of Rs. 18,250/-. It was subsequently revealed that the Branch Manager of the Land Development Bank, Opposite Party No. 1 and Opposite Party No. 2 M/s. Kisan Auto Tractor Limited, Fatehpur got this amount of Rs. 18,250/- debited in the name of the complainant''s father. Original records of the deal for purchase of tractor and insurance etc. were also not given. The Bank made him to understand that the tractor will remain mortgaged to the Bank and original documents would also be kept by the Opposite Party No. 1. The complainant lodged a complaint in the District Forum, Fatehpur on 28.1.1991 claiming compensation of Rs. 20,000/- per crop on account of the fact that instead of an HMT tractor, he was given an Escorts tractor, the engine of which had developed defects and its parts were also duplicate with the result that he suffered a loss of Rs. 20,000/- for each crop. The District Consumer Forum, Fatehpur dismissed the complaint on the ground that the claim was vague and specific amount of compensation has not been mentioned.

The complainant filed this complaint before this Commission as the amount of compensation has exceeded Rs. 1,00,000/- and therefore, instead of filing an appeal he has filed this complaint. It was also stated in the complaint that after some time of the purchase of the tractor, the engine of the tractor got burst and inspite of his complaint to the Bank, Opposite Party No. 1, and Opposite Party Nos. 2 and 3, the complaint was not attended to. A mechanic later on pointed out that the dynamo, self, bulb, plate and engine of the tractor were not original. This was because a conspiracy was hatched by the Opposite Parties 1 to 2 and he had to spend a sum of Rs. 10,000/- on repairs. Against the payment of loan advanced by Opposite Party No. 1, the complainant''s father had to pay Rs. 24,500/- from time to time. Inspite of this, the Bank started recovery proceedings and subsequently action for auction of the tractor was initiated. On this the complainant''s father complained to the District Manager on 7.3.1990 who got the complaint enquired into and it was prima facie found that a tractor having duplicate parts, being second hand was sold to him. The complainant lodged an FIR-to this effect in Police Station Kotwali of Fatehpur and the criminal case is pending before the Chief Judicial Magistrate, Fatehpur. He is being ressurized by the Opposite Party No. 2 and Opposite Party No. 1 to get the FIR and the criminal case withdrawn and he is being threatened that in case he does not withdraw the case, recovery proceedings will be started again.

THE complainant had stated that since the registration papers and insurance papers were not handed over by Opposite Party No. 1 with the result that the tractor could not be used resulting into loss of Rs. 20,000/- for every crop from the year 1987 whereas the Land Development Bank, now known as U.P. Rajya Sahkari Krishi Avum Gramya Vikas Bank Limited, Opposite Party No. 1, is showing a debit balance of Rs. 2,00,000/- against him. During this period, the complainant had suffered a loss of Rs. 50,000/- in terms of mental torture and Rs. 15,000/- for going here and there unnecessarily. Besides, the father of the complainant had to face-the consequences of this forgery, fraud and conspiracy ultimately resulting into issuance of notice of auction. He was shocked and fell ill and later on he died. An amount of Rs. 25,000/- was spent on the treatment of his father. The complainant was arrested on 31.8.1992 and was illegally detained resulting into mental torture and loss of prestige for which a compensation of Rs. 22,000/- has been claimed.

THUS the complainant has claimed a compensation of Rs. 3,20,000/- as loss of crop from 1987 to 1992 alongwith interest, Rs. 2,00,000/- which is being shown as debit balance against him in the Bank, Opposite Party No. 1, Rs. 18,250/- debited against him for purchase of certain parts, Rs. 10,000/- spent on the repairs of the engine, Rs. 35,000/- for mental torture and unnecessary running here and there Rs. 28,000/- for loss of prestige and Rs. 22,000/- on the treatment of his father. The complainant filed an affidavit in support of allegations of his complaint and another affidavit has been filed by him alongwith certain enclosures which are copies of the complaint filed in the District Consumer Forum, the copy of the judgment dated 28.10.1992 of the District Consumer Forum, Fatehpur, the copy of the application of Opposite Party No. 1 asking for removing certain defects in the tractor and correspondence between the Land Development Bank, Opposite Party No. 1 and the complainant. The receipts of certain amounts deposited by the complainant with Opposite Party No. 1 have also been produced. Copy of the complaint made to the District Magistrate, Fatehpur, copy of the FIR lodged against Opposite Party No. 2 and some of the other miscellaneous papers are also attached. The Opposite Party No. 1 filed a written statement on 16.3.1993 on affidavit, repudiating the allegations contained in the complaint. It has also been stated in the written statement that the complainant''s case has already been decided in the District Forum, Fatehpur on 28.10.1992 and another complaint for the same cause of action cannot be filed before the Commission. Also there was no deficiency of service on the part of Opposite Party No. 1 and he was not pressurised to purchase Escorts tractor. The father of the complainant was not pressurised to sign the documents concerning the grant of loan. The Bank, Opposite Party No. 1 sanctioned the loan but the complainant did not pay the instalments of loan and after due process, the tractor in question was auctioned. It has also been stated by Opposite Party No-1 that a writ petition was filed by the complainant in the Hon''ble High Court at Allahabad to cancel the auction of the tractor in question. The complainant''s father did not get the tractor registered nor got it insured, which is not the responsibility of the Bank. The Opposite Party No. 2 was only concerned with the financing of the tractor and as far as the defects pointed out were concerned, the same were taken up by Opposite Party No. 3.

THE Opposite Party No. 2 in their written statement also denied most of the allegations in the complaint but admitted that on 29.6.1987 the tractor alongwith accessories was delivered to the father of the complainant and an amount of Rs. 8,256.94 was still outstanding against him and Opposite Party No. 2 filed a suit for this recovery which was pending before the Civil Judge, Fatehpur, in Case No. 133 of 1989 and because the amount was outstanding against the complainant, being the legal heir of his father, he has lodged an FIR in another case against Opposite Party No. 2 in a planned manner and the complainant has taken recourse to the State Consumer Commission when his complaint was already disposed off. It was further alleged that the warranty period of a tractor was for a period of one year and being in the period of one year''s warranty, no complaint was lodged either by the complainant''s father or by the Bank, Opposite Party No. 1. Since the warranty period expired on 28.6.1988, Opposite Party Nos. 2 and 3 were not responsible for any deficiency.

ON the other hand, the complainant is not paying the outstanding amount due to him which he owes to Opposite Party No. 2. Opposite Party No. 3 filed a written statement and has stated that the matter is being tried by the Judicial Magistrate, Fatehpur and is sub-judice. It has also been stated by them that Opposite Party No. 2 is no more the dealer and since the relationship of Opposite Party No. 2 and Opposite Party No. 3 were governed by dealer''s sales agreement on principle to principle basis, Opposite Party No. 3 cannot be held liable for deeds of Opposite Party No. 2. Opposite Party No. 3 has also denied complainant''s contention that they had informed the complainant that the delivery of the tractor in question was not given to Opposite Party No. 2. The warranty expired in 1988 and they are not liable in any way to pay any expenditure on repair, losses, damages, interest etc.

We have gone through the evidence on record, Mr. J.N. Singh, learned Counsel for the complainant and Mr. T. A. Khan, learned Counsel for the Opposite Party No. 1, Mr. Vivek Gupta, learned Counsel for Opposite Party Nos. 2 and 3 appeared. The ex-parte arguments were heard on 28.1.1999.

DOCUMENTARY evidence on record goes to show that it is a case of purchase of an Escorts tractor through the loaning facility provided by the Land Development Bank, now known as Krishi Avum Gramiya Vikas Bank. The complainant''s father was sanctioned loan for Rs. 98,000/- on 25.6.1987. In the present case the amount of loan and the contribution made by the purchase, who is a farmer, was handed over to the dealer of the tractor as is the normal procedure here. The complainant''s demand is that instead of a fresh Escorts tractor, he was given a second hand tractor which developed troubles with the result that there were faults in the engine. Consequently he could not take advantage of the tractor and in the process he suffered loss. Statements filed by the Opposite Party No. 3 did not deny that the tractor was not supplied to Opposite Party No. 2 who sold the tractor to the complainant''s father. The Opposite Party No. 2 also made it clear that inspite of his handing over the tractor to the complainant''s father, a certain amount was due against him for which a civil suit was pending in the Court of Civil Judge, Fatehpur (since dismissed in default). Among the documents filed is a photograph of tractor engine but this photograph also does not conclusively prove that the tractor supplied was a fake one. Again an FIR was lodged by the complainant against Opposite Party No. 2 and in this connection evidence shows that this case is pending for trial in the Court of Chief Judicial Magistrate, Fatehpur. It appears from the documents on record that the complainant started the proceedings before various Authorities after the recovery of the loan sanctioned by Opposite Party No. 1 was started. The warranty period for the tractor purchased was one year and for the period of one year under warranty period it appears that the complainant did not make any specific complaint either to the Bank or the dealer, Opposite Party Nos. 1 and 2. For the first time it was on 27.11.1989 that Opposite Party No. 3 was informed of certain defects in the tractor. It appears that the complainant''s father did not take appropriate steps to rectify the deficiency or to replace the tractor during the warranty period. As stated above, the complainant started initiating various steps only when the recovery of amount was started. From the evidence available on file, we cannot come to a conclusion that the tractor delivered to the complainant''s father was a second hand tractor with a number of deficiencies. It is, therefore, not possible for us to assess any damage which could have been caused to the complainant. It has been stated in the written statement of all the opposite parties that on the same cause of action, the complainant had filed a complaint before the District Consumer Forum, Fatehpur. The Forum in its order in Complaint Case No. 41/1991, dismissed the complaint being vague, the order is dated 28.10.1992. In the complaint before this Commission it has been alleged that in the District Forum a claim of Rs. 20,000/- was preferred for loss for each crop but since the amount of loss incurred in every crop was Rs. 20,000/-, therefore, the total amount of loss was much more than what could have been dealt with by the District Consumer Forum. As the jurisdiction of the District Forum at that time was to adjudicate the claims upto Rs. 1,00,000/- only/and therefore, this complaint was filed before the Commission.

IT has also been pointed out in the written statement of the opposite parties that instead of a complaint the appeal against order dated 28.10.1992 of the District Consumer Forum should have been filed before the Commission. In this connection our attention has been drawn by the learned Counsel for the complainant towards the ruling of the Hon''ble High Court of Karnataka and AIR 1988 SC 1531, wherein it has been held that cause of action in two suits being different, res-judicata will not operate. In the instant case the position is different. The cause of action in Complaint Case No. 41/91 in District Consumer Forum, Fatehpur was the same as indicated in the instant complaint under discussion. Therefore, a fresh complaint, after the complaint on same cause of action was dismissed in the Forum, could not have been filed before this Commission. The complainant was at liberty to come in appeal against the said order and was free to claim enhanced amount of compensation during the course of appeal. In view of the above discussion, the complaint is liable to be dismissed. ORDER The complaint is dismissed. The parties to bear their own cost. Let copies be made available to the parties concerned as per rules. Complaint dismissed.