ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE
(BEFORE :- PRESIDENT :- Smt. Pranali Sawant )
MEMBER :- Smt. Sujata Patankar )
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Complaint No. : APDF/56/2010
Date of filing :- 23/04/2010
Date of decision :- 27/12/ 2011
Mr. Shailendra Dongardive, .. )
R/at : S.No.10, M 7/60, .. )
Mhada Hsg.Society, Board .. )
Golf Club Road, Yerawada, .. )
Pune – 411 006. .. )… COMPLAINANT
: versus:
1. Planet Bajaj .. )
Bajaj Auto Limited Through .. )
Its Manager, .. )
Near Kamal Naryan Bajaj Udyan, .. )
Mumbai Pune Road, Wakadewadi, .. )
Pune – 411 003. .. )
.. )
2.GE Money Through its Manager, .. )
406-409, City Point, .. )
4th Floor, City Point Boat Club Road, .. )
Pune – 1. .. )… OPPONENT
For Complainant : -
For Opponent No.1 : Representative
For Opponent No.2 : ex-parte
*********************************************************************Per : Smt. Sujata Patankar, Member
//JUDGMENT//
[1] The facts of the present case briefly stated are as follows :-
It is the case of the Complainant that the Complainant deposited the amount of Rs.15,000/- to the Opponent No.1 and the Opponent No. 2 had given the receipt of such amount. The Complainant decided to purchase the vehicle through loan from the Opponent No.1. The Complainant also had given all the necessary document to the Opponent No.1. But meanwhile, the Complainant urgently joined his work because of the superiors’ order of the army. It is further contended that during the period the Complainant cannot communicate to the Opponents and hence the Opponents also did not contact to the Complainant. Thereafter, the Complainant approached to the Office of the Opponent No.1 and asked to return the amount then the Opponent No.1 informed that the Opponent No.1 sanctioned the hypothecation loan and because of non payment of the installment of the loan, the Opponent No.1 took possession of the vehicle. Hence the Complainant wrote the letter to the Opponent No.2 and asked to return of the booking amount dtd.17/11/2008. Thereafter the Opponent No.1 through letter informed that they are no any manner connected with the down payment made by the Complainant to the Opponent No.1. Hence the Complainant went to the Opponent No.1 and asked to refund the amount. But the Opponent No.1 till yet not refund the said amount. It is further contended that it is the duty of the Opponent No.1 to refund the amount but avoided the matter which denotes Opponent No.1’s unfair Trade Practice. Such acts of the Opponent caused so much mental agony to the Complainant. On all these grounds and as specifically stated in the complaint application, alongwith all other reliefs, the Complainant has prayed to refund the amount of Rs.15,000/- with 18% interest to the Complainant from the Opponent. As also has prayed the amount of Rs.25,000/- as the compensation. The Complainant has filed affidavit alongwith the complaint application. The Complainant has also filed documents, such as, letter dtd.17/11/2008 sent by the Opponent No. 2 to the Complainant and the letter sent by the Complainant to the Opponent No.2 dtd.15/9/2008, the receipt for amount of Rs.15,000/- of the Opponent No.1, Letter of the Regional Transport Office, Pune dtd.19/10/2007, Tax Invoice. As also on 11/6/2010, with list of documents the Complainant filed letters sent to the Opponent No.1 by the Complainant dtd.15/5/2005 and 25/6/2006.
[2] In pursuance of the notice of appearance issued by this Forum, the Opponent No.1 appeared and has filed its authority letter alongwith written statement on affidavit and has stated that complaint is not maintainable and requires to be dismissed with costs. It is also further stated that the Complainant is not a “consumer” as the vehicle in dispute has already been sold and the Complainant is aware of it as he himself has attached the RTO letter. The second preliminary objection is that since the complaint is filed after more than 5 years since the date of purchase of the Motorcycle it is hopelessly barred by the law of limitation of 2 years provided under the Consumer Protection Act, 1986. Thereafter, the Opponent No.1 submitted Hon’ble Supreme Court’s order on the point of limitation. The Opponent No.1 has also referred the cases decided by the Hon’ble National Commission on the point of limitation that plea of limitation even if not raised and suit as ex facie barred by limitation, Court has no choice but to dismiss the same. It is the contention of the Opponent No.1 that the loan was availed by the Complainant from the Opponent No.2. The Opponent no.1 Planet Bajaj which is show room of Bajaj Auto Limited, the manufacturer can in no way be connected to the liability of the Opponent No.2. The Opponent No.1 has admitted that the Complainant has purchased two wheeler motorcycle named ‘Bajaj Pulsar 150 DTSi’ in the year 2004 and it is registered with the ‘Regional Transport Office’ accordingly in his name and Hypothecated in favour of the Opponent No.2. Once the Opponent No.1 sold the vehicle to the Complainant and received the consideration amount and registered vehicle was made in the name of the Complainant, Opponent No.1 ceased all the relationship with the vehicle, since the Complainant became ‘Owner’ of the Vehicle. Therefore adding the Opponent No.1 as party Opponent is not only unwarranted but is also not correct. According to the Opponent No.1 if the Complainant has taken loan for the purchase of vehicle and if there is any alleged dispute relating to such loan repayment and or any transactions relating to that, it is purely between the Complainant and the Financer (Opponent No.2). It is also the contention of the Opponent No.1 that the Opponent No.1 is the Mis-joinder in this complaint. Further it is also stated that the Complainant has written a letter dtd.18/9/2008 after more than 4 years to the Opponent No.2. In this letter the Complainant is mentioning the Registration Number of his vehicle, it means Complainant is fully aware that he is ‘owner ‘and it is registered by RTO in his name. Once this aspect is admitted where is the question of any repayment of the down-payment by the Opponent No.1 to the Complainant. It is also further stated that the Complainant’s letter to the Opponent No.2 is indicative that the Complainant has grievance against the Opponent No.2 and not against the Opponent No.1. It is further submission of the Opponent No.2 that the Complainant seeking Rs.15,000/- from the Opponent No.2 also clearly indicative that he was defaulted in payment of his loan installments to it and thus in the year 2008 seeking the same from the Opponent No.2 and or release of his motorcycle. However the Opponent No. 1 has stated the fact that Opponent No.2 saying that they have objection to remove the hypothecation endorsement of it, on the vehicle registration is indicative of the fact entire payment of it is received by it. It is also specifically mentioned that the Opponent No.2 is the owner’s of the vehicle at the relevant time by virtue of Hire-Purchase loan Agreement between the Complainant and the Opponent No.2. Further it is also stated that the RTO records, the vehicle stands transferred to one Mr. Deepak Ramdas Dehrange, of Pimpri, if it is so transferred, who is the transferor to such a sale, whose NOC is obtained for such sale from whom etc are all moot questions. It is also the submission of the Opponent No.1 that they are not aware about these transactions relating to the vehicle once the sale of vehicle by the Opponent No.1 to the Complainant is complete. It is also the contention of the Opponent No.1 that Complainant has attached the letter of RTO dtd. 19/10/2007. It seems that the vehicle was in the name of Complainant. In the complaint the Complainant is completely silent about this letter. It is also the contention of the Opponent No.1 that the Complainant is concealing some of the vital information known to him. The Complainant has not come before the Forum with clean hands. Thus on all these grounds as stated in the written statement and as specifically mentioned in the written statement, the Opponent No.1 has prayed for dismissing the complaint or in the alternative has prayed for deleting the Opponent No.1 from the proceedings. Alongwith the written statement, the Opponent No.1 has filed authorities.
[3] The Opponent No.2 even though duly served with the notice of this Forum, chose to remain absent. Therefore, the matter proceeded ex-parte against the Opponent No. 2 on 18/10/2010.
[4] The Complainant as also the Opponent No.1 have filed written notes of arguments
[5] Taking into consideration, the complaint, written statement, documents on the record and the written notes of arguments of the Opponent, the following points arose for our consideration :
Points Answers
1) Whether the complaint is within the period of limitation? … No.
2) Whether the Opponents have rendered deficiency
in service to the Complainant? … No.
3) What order? … As per final order.
[6] The Complainant paid the amount of Rs.15,000/- to the Opponent No.1 in the year 2004, for down payment of the disputed vehicle bearing Bajaj Pulsar 150 DTSi’ bearing MH 12 CJ 8240. It means that the Complainant paid the down payment in the year 2004 and sent a letter to the Opponent in the year 2005, 2006, 2008. The Complainant sent letter to the Opponent No. 1 on 15/5/2005, 25/6/2006, 15/9/2008, 17/11/2008. The Complainant paid the amount of Rs.15,000/- to the Opponent No. 1 as a down payment. The Complainant purchased the vehicle by the Opponent No.1 through the Opponent No.2. The Opponent No.2 is the finance company and the Complainant borrowed the loan for purchase of the vehicle from the Opponent No.1. The Complainant filed one receipt of Rs.15,000/- on record of this case and also letters sent by him to the Opponent Nos. 1 and 2. Therefore we opined that there is a relation between the Complainant and the Opponents No. 1 and 2 as a seller and buyer or service provider and consumer. Therefore, it is undisputed fact that the Complainant is a “consumer “ of the Opponent Nos. 1 and 2.
[7] The Opponent No.1 has strongly pointed out the point of limitation in their written statement. In this context, the Complainant has not filed any delay condonation application for condoning the delay with affidavit even after the point of limitation raised by the Opponent No.1 in their written statement. Also the Complainant after filing say by the Opponent did not file any documentary evidence on record or reply affidavit on the point of limitation. It is pertinent to note that the Complainant has not filed this complaint within limitation prescribed under the provisions of Consumer Protection Act, 1986, Section 24-A, the complaint is required to file within a period of two years from the date of cause of action. On perusal of the documents filed by the Complainant it is crystal clear that the cause of action arouse in the year 2004 and it is required to file this complaint in the year 2006 as per provisions of Consumer Protection Act. In this case, the Complainant sent a letter to the Opponent No. 1 and 2 dtd. 15/5/2005, 25/6/2006, 15/9/2008, 17/11/2008 respectively and this case is filed on 23/4/2010 before this Forum. The Complainant only sent letters to the Opponent on various dates it means that there is no continuous cause of action and therefore we relied upon 2011 (IV) CPJ 114 (NC) in the matter of Ramratan M. Shriwas V/s. Jayant H. Thakar has observed as under :-
“ Consumer Protection Act, 1986- Sections 2(1) (g), 21 (b), 24-A Flat Agreement – non honouring of commitments – Limitation – Forums dismissed complaint – Hence revision – Contention, continuous and long correspondence between parties and hence case of continuing cause of action – Not accepted – Once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between parties – Provision regarding limitation being of mandatory nature, Fora below was duty bound to determine whether complaint is within limitation period – Complaint barred by limitation.
“Position of law on the point is well settled. In fact, on and after accrual of cause of action, party cannot get the time of limitation enlarged by indulging in exchange of correspondence.
Since the delay is of 3 years in filing the complaint, which has not been sufficiently explained, the order of the District Forum dismissing the complaint is proper needing no inference”.
“Section 24-A of the Act, is peremptory in nature and requires the Consumer Forum to see it before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.”
The Opponent No.1 filed AIR 2002 Supreme Court page 1210 in the matter of M.S. Kerala Agro Machinery Corporation Limited V/s. Bijoy Kumar Roy relying on this judgment also the findings of the Hon’ble National Commission and the Supreme Court, the case ratio is squarely applicable to the present case and therefore the complaint is liable to be dismissed on the point of limitation itself. Hence we answer the point No. (1) in the negative.
[8] Primafacie, even if in the present complaint, the Opponent No.2 has not filed any written statement, yet the Complainant has failed to prove the deficiency on the part of the Opponent No.2. As far as the deficiency in service on the part of the Opponent No.1 is concerned, it is pertinent to note that the Complainant paid the amount of Rs. 15,000/- as a down payment to the Opponent No.1 The Opponent No.2 disbursed the loan as per hire purchase loan agreement between the Complainant and the Opponent No.2. The Complainant did not deny this fact also. As per the contentions of the complaint application “the Complainant approached to the Office of the Opponent No.1 and asked to return the amount then the Opponent No.1 informed that the Opponent No.1 sanctioned the hypothecation agreement and because of non payment of the installment the Opponent No.2 took possession of the vehicle. It reveals that because non payment of loan the Opponent took possession of vehicle and said fact is admitted by the Complainant himself. It means that the Complainant borrowed the money from the Opponent No.2 for purchasing vehicle but because of non payment of loan the Opponent No.2 took possession of said vehicle. Therefore we opined that there is no any deficiency in service rendered by the Opponents No. 1 and 2 to the Complainant. Hence we answer the point No.2 accordingly.
[9] On 21/06/2011, the Advocate for the Complainant filed an application with a prayer to grant permission to withdraw the V.P.. The application is granted by the Hon’ble Forum.
With the aforesaid discussions, we proceed to pass the following order:
// ORDER//
(1) The complaint is liable to be dismissed.
(2) Parties to bear their own cost.
(3) Certified copies of this order be furnished to the Complainant and the Opponents free of costs.
(Smt. Sujata Patankar) (Smt. Pranali Sawant)
MEMEBR PRESIDE NT
ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,PUNE.
Place : Pune
Date : 27/12/2011
