BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 153 of 2017
Date of Institution : 10.07.2017
Date of Decision : 26.02.2018
Kulvir Singh(aged about years) son of Sh. Inder Singh, Village Kariwala, Tehsil Rania & District Sirsa.
……Complainant.
Versus.
1 Ahuja Motors, Authorized dealer of New Holland Tractor, Hisar Road, Sirsa through its Proprietor/Manager/Authorized Signatory-Avtar Singh.
2 Magma Fin. Cor. Ltd. Magma Leasing, First Floor, Car House Building, Opposite Hotel Aroma, Dabwali Road, Sirsa through its Manager/Authorized Signatory.
3 Magma Financial Corporation Ltd., having its registered office Magma House, 24 Park Street, Kolkata-7000016.
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh.Ravinder Monga, Advocate for the complainant.
Sh. Sanjay Sihag, Advocate for the opposite party no.3.
Opposite parties no.1 and 2 exparte.
ORDER
In brief, the case of complainant is that the complainant is an agriculturist having land in village Kariwala. The complainant and his entire family members are totally dependent upon the income of the agriculture pursuits. The complainant is known as a simpleton nature of person in the village. The op no.1 being a dealer of op no.3 contacted with the complainant in the last week of December, 2014 and explored the features of newly launched tractor known as New Holland Tractor. The op no.1 alongwith accompanying engineer of op no.3 explained that the newly launched tractor is fully tested and best performance tractor in agriculture field having more than 3000 cubic capacity which gave more performance than the other tractors running in the market. The op no.1 and the engineer of the company further elaborated that the tractor duly manufactured by op no.3 is also known as less fuel consumption, more powerful performance, so much so engineer of op no.3 gave a guarantee and promise of every up to mark performance of the tractor. The complainant was willing to purchase tractor after believing upon the assurances and promises made by op no.1 acting on behalf of op no.3. The op no.1 and engineer of the op no.3 further assured that due to demand and shortage of tractors they will deliver the tractor to the complainant in the 2nd week of February, 2015 having manufacturing model of 2015. Op no.1 advised the complainant for booking of a tractor as per their target and scheme launched by op no.3-manufacturing company. The complainant being a simpleton nature of person believing upon the every commitments made by the op no.1 and engineer of op no.3 agreed for booking for new tractor of 2015 to be delivered in the 2nd week of February, 2015. It is further averred that complainant went to the showroom of op no.1 in the first week of 2015 and inquired about the status of his booking of Holland Tractor. The op no.1 after contacting with op no.3 assured that they will deliver the tractor Model-2015 in the middle of February, 2015. The complainant was inquiring about the other apparatus of the tractor then the op no.2 approached and requested the complainant for obtaining loan from their finance company. The op no.2 further explained that they are having tie up with op no.3-manufacturing company and both are doing their works for the benefits of farmers. The op no.1 supported the version of op no.2 and advised the complainant to get the tractor financed from op no.2 on a lower payable interest. Though the complainant was having sufficient means and sources to purchase the tractor in cash, but on regular pursuance of ops no.1&2, he was pressurized to get the tractor financed through op no.2. It is further averred that op no.2 on the persuasion of op no.1 got his signatures on blank performas, cheques (as a security purpose) and advised to contact in the second week of February, 2015. The complainant contacted with the op no.2 having camp in the showroom of op no.1 and inquired about the total amount of finance and detail of installments. The op no.1 (it should be op no.2) after due consultation disclosed that their company will finance an amount of Rs.4,10,000/- and further disclosed that as per the scheme of the company, he is not required to pay extra amount of interest etc. rather the returning of amount is on the basis of fix installments. The incharge of op no.2 further explained that after one year the company will settle the amount and hand over a copy of the same to the complainant in lieu of accuracy and transparency. The op no.2 charged first installment on 10.2.2015 even without delivering the possession of financed tractor. The complainant upon coming to know about the charging of first installment immediately contacted with the ops no.1&2 and inquired about the reason for charging the first installment even without delivering the possession of the tractor. The op no.1 explained that due to shortage of manufacturing and demand he will get the delivery of tractor in the middle of March, whereas after taking so many rounds the tractor was delivered to the complainant in April, 2015. It is further averred that at the time of delivering the custody of Tractor, the op no.1 told to the complainant that the delay delivery of Tractor is on account of fresh manufacturing of 2015 Model. The complainant further requested for handing over the registration certificate and insurance policy as per the requirement of Traffic Rules and Act. The ops no.1&2 explained that due to finance procedure the documents are in process of registration from the authority and will be handed over to him upon receiving. The complainant number of times personally visited to the ops no.1&2 and inquired the RC and the similar reply was given and was told and assured that they will send the same to him upon receiving. The ops no.1&2 postponed the matter of registration for a number of occasions with the lame excuses. Ultimately the complainant personally went to the Registering Authority M.V. Ellenabad and informed by the official that registration certificate of tractor bearing No.HR44G/1972 having maker classification New Holland 6010 Chassis No.NH8306085 and Engine No.151616DT has been issued on 16.4.2015 and the validity of said RC is upto 30th December, 2029. The complainant showed his disappointment, displeasure before ops no.1&2 and requested them to hand over the original RC and insurance policy. Ultimately the op no.1&2 handed over the original RC in the middle of January, 2016. It is further averred that between February, 2015 to February, 2017 the complainant had approximately paid the finance amount of Rs.3,25,000/- to the op no.2. The complainant personally went to the office of op no.2 in Sirsa and inquired about the earlier commitment for settlement of yearly account system and further requested him to hand over a detail of account statement belonging to his finance account. During discussion it was brought to the notice of the complainant for the first time that the tractor handed over to him is manufactured in 2014. The complainant was shocked to know about such type of clever tactic of op no.1 in collusion with ops no.2 and 3 who have created such an atmosphere and situation that the complainant could not know the truth. The ops intentionally and deliberately have not handed over the original RC and insurance policy to the complainant knowing well that the sold tractor is actually manufactured in 2014 but they have sold old model tractor in the year 2015 after charging the full amount as detailed in the bill. That the op no.1 had played a fraud and committed breach of trust in collusion with ops no.2 and 3 for which the complainant reserves his legal right to launch an appropriate criminal proceedings before the competent court of jurisdiction. That the complainant approached the ops no.1 and 2 a week back and requested them to settle their account of finance and also to receive back the delivery of old manufactured tractor as he is not willing to maintain old tractor but the ops flatly refused to accept the genuine request of complainant. It is further averred that the cause of action firstly arose in January, 2016 when ops no.1 and 2 handed over the original RC to the complainant and thereafter the cause of action is still continuing. Hence, this complaint.
2. On notice, opposite party no.3 appeared and filed reply taking certain preliminary objections regarding suppression of material facts, maintainability and cause of action. Further, it is submitted that answering op as per the term and conditions of the loan agreement had provided financial assistance to Kulvir Singh for purchase of new tractor. The complainant himself has breached the terms and conditions of loan agreement by not making the payment of EMI’s on time schedule as mentioned in the agreement. It is further submitted that op is only a finance company and not a manufacturer company and that if there is any dispute of manufacture year of the vehicle as alleged by complainant, it is between complainant and dealer. Answering op has no concern with the manufacturing of any vehicle. It is further submitted that answering op has financed the vehicle and provided Rs.4,13,374/- to the complainant for purchase of one tractor new Holland bearing registration No.HR44G-1972 and complainant was to return Rs.5,41,110/- to the answering op alongwith interest in 36 monthly EMI’s as per the payment schedule mentioned in the loan agreement. The complainant has paid only Rs.1,88,385/- from the beginning of the loan i.e. from 10th January, 2015 till today out of Rs.4,56,925/- due against him. It is further submitted that due to continue default in making the regular EMI’s by the complainant, op has referred the matter to the Arbitrator. The Arbitrator Mr. Debasis Mallick, Advocate/ Arbitrator of Kolkata has passed the award dated 5.5.2017, execution of which is pending before learned ADJ, Sirsa. The said award was already sent to the complainant/ hirer by the Arbitrator through registered post. It is further submitted that this Forum has got no jurisdiction to entertain and try the present complaint being beyond jurisdiction as the legal remedies have already been availed by one of the party. On merits, it is submitted that due to his own need and inability to pay the full amount of tractor, complainant had approached the answering ops’ Sirsa office for loan against purchase of new Holland tractor. That after understanding the terms of interest and payment of monthly installment, complainant chose to pay half yearly installment on the arriving of the seasonal harvest. On the basis of his convenience, case was sanctioned and financed with half yearly installment. It is further submitted that from the beginning of the loan case, very first installment of petty amount of Rs.2000/- was deposited by complainant with the delay of eight days. It is further submitted that the delivery of vehicle is matter in dispute between dealer op no.2 and complainant. It is further submitted that complainant has already admitted that he has received the RC of the vehicle in January, 2016 then why he kept mum for the last one and half year. Remaining contents of complaint are also denied.
3. Opposite parties no.1 and 2 did not appear despite notice and were proceeded against exparte.
4. The complainant produced his affidavit Ex.CW1/A, copy of letter dated 24.4.2015 Ex.C1, copy of hire purchase finance agreement Ex.C2 and copy of registration certificate Ex.C3. On the other hand, learned counsel for op no.3 suffered a statement that written statement filed on behalf of op no.3 be read as evidence of op no.3.
5. We have heard learned counsel for complainant as well as learned counsel for opposite party no.3 and have perused the case file carefully.
6. The complainant in order to prove his case has furnished his affidavit Ex.CW1/A and copy of letter dated 24.4.2015 Ex.C1, copy of agreement Ex.C2 and copy of registration certificate Ex.C3. On the other hand, ops no.1 and 2 failed to appear before the Forum and were proceeded against exparte. The contesting op no.3 filed reply and also tendered the same in evidence.
7. During the course of arguments, learned counsel for op no.3 has contended that complaint of the complainant is not maintainable qua op no.3 as complainant himself has admitted this fact that he had raised the loan from op no.3 in order to purchase a tractor from op no.1 and op no.3 is only a finance company and not manufacturer company. OP no.3 had financed the vehicle and provided loan of Rs.4,13,374/- to the complainant for purchase of tractor new Holland which was to be returned in 36 monthly installments as per payment schedule mentioned in the loan agreement. During the course of arguments, learned counsel for complainant has not denied the execution of the loan agreement and repayment schedule which was agreed and signed by complainant. Further, the complainant has also conceded to the fact that an arbitration award was passed by an Arbitrator, the execution of which is already pending before the court of learned Additional District Judge, Sirsa in which the complainant has put his appearance and filed objections petition. The matter is subjudiced before the court of learned Addl. District Judge, Sirsa. Further more, complainant himself has placed on record copy of agreement dated 22.1.2015 Ex.C2 alongwith repayment schedule. So, it is undisputed fact between the parties that loan was raised by complainant from op no.3 and he was under legal obligation to repay the loan amount as per repayment schedule. Due to non compliance of the repayment schedule by complainant, op no.3 referred the matter to the Arbitrator who passed the award on 5.5.2017 and execution of the award is pending before the court of Ld. ADJ, Sirsa. So, it is settled principle of law that when award has been passed, this Forum has no jurisdiction to set aside the award. Though, the complainant has alleged in the complaint that there was a fraud on the part of op no.1 in connivance with op no.3, but however, the complainant has failed to prove and establish the connivance of op no.3 with op no.1, as such complaint against op no.3 does not appear to be maintainable and same is hereby dismissed.
8. There are specific allegations of the complainant against op no.1 that op no.1 supplied the new Holland tractor 2014 model though he had agreed to supply 2015 model for a valid consideration and complainant requested for handing over registration certificate and insurance policy as per requirement of Traffic rules and Act but op no.1 continued to delay the matter on one pretext or the other and after receiving the registration certificate in the mid of January, 2016, he came to know that manufacturing year of the vehicle is 2014 and in this way he committed cheating and fraud with the complainant and made prayer for replacement of the vehicle and payment of complainant. The perusal of the affidavit of complainant reveals that complainant has deposed and reiterated the averments made in the complaint qua handing over delivery of the vehicle as well as issuance of RC and insurance certificate but the complainant has not placed on record insurance policy of the vehicle due to reason best known to him, nor the complainant has placed on record any letter or document from which it could be presumed that complainant was not supplied the vehicle well within time and RC of the vehicle was also not delivered to complainant as per allegations of the complainant in the complaint. Rather, the documents which he has placed on record reveals that complainant had executed loan agreement on 22.1.2015, copy of which is Ex.C2 on file and complainant has further placed on record copy of RC as Ex.C3 which was issued on 15.4.2015. Though, the complainant has taken the plea that RC was delivered to the complainant in year 2016 and then he came to know about model of the vehicle but complainant has not placed on record any cogent and convincing evidence from which it could be presumed that RC of the vehicle was delivered to the complainant in year 2016. Rather, it appears from the evidence that RC of the vehicle was issued on 16.4.2015 and same was delivered to the complainant well in time. Further more, the cause of action arose to the complainant in the month of January, 2015 when documents were executed by complainant and further cause of action accrued when delivery of the vehicle was made prior to the date of issuance of registration certificate of vehicle and thereafter it arose to the complainant on issuance of registration certificate of the vehicle in April, 2015 and complainant was required to file the complaint within a period of two years from the date of accrual of cause of action as per Section 24 of the Consumer Protection Act, 1986 but however, present complaint has been filed by complainant on 10.7.2017 which is clearly time barred and same is not maintainable at all and is liable to be dismissed.
9. In view of the above, we find no merit in the present complaint and same is hereby dismissed. The parties are left to bear their own costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated:26.2.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
