First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.247 of 2014
Date of institution : 12.03.2014
Date of decision : 02.09.2015
Shriram Transport Finance Co. Ltd., SCF No. 101-102, Phase-XI, SAS Nagar, Mohali through its authorized Signatory.
…….Appellant/Opposite Party
Versus
Baljinder Singh son of Sh. Hakam Singh resident of H. No. 76, village Sadomajra tehsil and Distt. Fategarh Sahib.
..…Respondent/Complainant
First Appeal against order dated 21.01.2014 passed by The District Consumer Disputes Redressal Forum, SAS Nagar, Mohali.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. H. S. Guram, Member.
Present:-
For the appellant : Ms. Kavita Sharma, Advocate
For the respondent : None
H. S. GURAM, MEMBER:-
This appeal has been preferred by the appellant (OP in the complaint) against the respondent of this appeal (the complainant in the complaint), assailing order dated 21.01.2014 passed by the District Consumer Disputes Redressal Forum SAS Nagar, Mohali,( in short 'the District Forum') in C.C. No.211 dated 05.06.2013, vide which, the complaint filed by the complainant was allowed by directing OP to redeliver the vehicle in question in roadworthy condition alongwith its all documents i.e. Registration Certificate, insurance, route permit, pollution certificate, passing, tax receipts and Gatta Copy to the complainant and rejig the payment schedule of the outstanding amount of Rs.1,62,900/- as on 10.02.2013. OP was further directed not to charge any interest/penal interest for the period for which the vehicle remained in its possession. The OP was further directed not to sell out the vehicle in question and complainant was allowed lump sum compensation to the tune of Rs.1 Lac.
2. The brief facts of the case are that complainant Baljinder Singh got financed a truck from the OP by availing loan of Rs.2 lac for purchase of truck, which was registered with the Registration Authority Fategarh Sahib, vide Registration No. PB-23-J-8466. It was further submitted by the complainant that the said truck was purchased by him for earning his livelihood. It was further pleaded in the complaint that loan availed by him was Rs.2 Lac to be repaid/discharged in 35 installments w.e.f. 12.7.2011 upto 20.05.2014 and total repayable amount would, thus, come to Rs.2,88,750/- with interest. It was further submitted that due to some unavoidable circumstances, he could not pay some of the installments in time. It was further pleaded in the complaint that he made the payment of Rs.1,25,850/-. It was further contended in the complaint that he undertook to pay the remaining amount alongwith interest on it on or before 20.05.2014, the agreed last date of the repayment of loan. It was further submitted in the complaint that the truck was seized unauthorizedly by the OP illegally, firstly in the month of December 2012 and thereafter in the month of January 2013. It was further maintained in the complaint that OP took forcibly possession of the vehicle on 10.02.2013 illegally. The complainant further submitted in the complaint that by taking over his truck forcibly from him, the OP, violated the terms and conditions of the hypothecation agreement between the parties. It was further submitted in that complaint that his truck was seized away by the musclemen deployed by the company forcibly. On account of seizure of his truck unauthorizedly by the OP, the complainant was constrained to file this complaint against it in the District Forum Mohali with the prayer that OP be directed to hand over his vehicle, as he had suffered loss of income due to illegal act of the OP. The forcible seizure of the vehicle by OP amounted to unfair trade practice and constituted deficiency in service on its part. The complainant prayed for compensation of Rs.61,000/-.
3. Upon notice, OP filed its written reply raising preliminary objections that complaint filed by the complainant in the present form is not maintainable, as the case of complainant is outside the scope of Consumer Protection Act. It was further submitted by OP that complainant alongwith his family members owned slew of commercial vehicles and the same were being used by it for commercial purposes with the sole aim of earning profit. The vehicle in question was also financed to the complainant, which was being used by him for commercial purposes, as such, the complainant is not Consumer under the CP Act. The complaint filed by complainant is governed by the terms and conditions of the loan agreement alone. It was further maintained in the written reply by OP, that if the complainant wanted to receive the vehicle in question, he can do it by clearing the outstanding amount of his loan only. The vehicle seized as alleged by complainant was still lying i0n its parking yard. On account of complexity of the matter, the complaint cannot be decided in summary manner by consumer Forum. It was further pleaded by OP that the documents pertaining to loan transaction were executed at Chandigarh and only Chandigarh Forum is competent to try the complaint, as no part of cause of action arose within the jurisdiction of District Consumer Forum Mohali. It was further pleaded on merits that complainant got financed the vehicle from OP, vide agreement No. CHNDG010709002 on 11.07.2001 for total agreement value of Rs.301854/-. The complainant undertook to pay equal monthly installment therefor. The complainant paid only Rs.8430/- and Rs.10119/- and Rs.8585/- and remained defaulter to regularize the account. The complainant paid Rs.97990/- to OP only and the amount of Rs.316211.74P/- is still due from complainant to OP. The OP reserved the right to sell the vehicle repossessed by it. The complainant failed to clear his balance amount to OP and has no intention to get back his vehicle. OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-11/1, statement of account issued by OP company on 18.02.2013 Ex.C1, photocopy of their demand draft dated 11.04.2013 Ex.C-2 and closed the evidence. OP tendered the affidavit of Rakesh Kumar, Manager of Shriram Transport Finance Company Ltd., having its office at Mohali Ex.OP-1/1, certificate of registration of OP company Ex.OP-1, copy of certificate of incorporation Ex.OP-2, copy of power of attorney Ex.OP-3, loan-cum hypothecation agreement for Rs.2 lac Ex.OP-4, Statement of account regarding outstanding amount of the complainant vide Ex.OP-5 , copy of legal notice sent to complainant dated 27.11.2012 Ex.OP-6, copy of inventory of vehicle Ex.OP-7, intimation by telegram to SHO Police Station dated 11.02.2013 Ex.OP-8 and closed the evidence. On conclusion of evidence and arguments, the District Forum Mohali accepted the complaint of the complainant. Dissatisfied with the order of District Forum Mohali, the OP now appellant preferred this appeal against the same.
5. The appellant has filed the appeal on the ground that the District Forum Mohali has no territorial jurisdiction to decide the complaint, as all the loan documents pertaining to loan agreement were executed at Chandigarh only and even there is a jurisdiction clause agreed upon between the parties in the agreement, to the effect that all disputes would be decided within Chandigarh jurisdiction only. The appellant challenged the impugned order on the ground that it was restrained from charging the interest on the balance loan amount standing in the account of the complainant; to reschedule the payment of loan amount and further burdening the appellant with lump sum compensation of Rs.1 lac. It is an admitted case of the complainant that he had not paid his due installments in time to OP. It was agitated that District Forum did not rely upon the documents tendered by OP before it and it had altogether rejected the statement of account, which was showing the outstanding amount against the complainant to the extent of Rs.3,16,211.74P as per Ex.R-5. It was further submitted that the District Forum had wrongly come to the conclusion that complainant had not handed over the possession of the vehicle to it, but the same was rather taken forcibly.
6. It has been argued by the counsel for the appellant that complainant had originally filed the complaint in the District Forum Fategarh Sahib and his complaint was dismissed by the Fategarh Sahib on the ground of lack of territorial jurisdiction.
7. The counsel for the appellant during the arguments further drew our attention to Clause No.15 pertaining to Arbitration and Clause No. 15.1 pertaining to jurisdiction for settling of disputes, if any between the parties. Our State Commission has laid down Law in Consumer Complaint No. 91 of 2012 titled as "Mukhtiar Singh Bal Vs. Aerens Entertainment Ltd. & Another", decided on 28.11.2014, wherein, it has been held that territorial jurisdiction has been provided under Section 11 of the CP Act. In case the jurisdiction of the District Forum is made out on the basis of allegations in the complaint, then the jurisdiction cannot be ousted by way of mutual agreement between the parties, because no agreement can exclude the statutory jurisdiction conferred under the CP Act. As the part of action has accrued to the complainant on the ground that his vehicle was registered at Fategarh Sahib. Vide loan agreement Ex.R-4 dated 11.07.2011, it was executed at Mohali and the address of OP is recorded SCF 101/102, first floor Phase-11 Mohali. The cause of action would accrue partly at Mohali, where the hypothecation agreement was executed between the parties and the address of OP is also of Mohali with regard to its carrying on business. The District Forum Mohali, thus, has the jurisdiction to try the complaint under Section 11 of CP Act. The argument of appellant on this point is repelled by us.
8. So far as the point of arbitration Clause in the loan agreement Ex.R-4 is concerned, Section 3 of the CP Act provides an additional remedy to redress the grievance of the Consumer and there is no bar under the above agreement to take up the cause with the Consumer Forum. Therefore, even if there is arbitration Clause in the agreement, in view of Section 3 of CP Act, the Consumer Forum is competent to try the complaint.
9. Another plea has been raised by the appellant that according to agreement, only Chandigarh courts were having the jurisdiction in the case of any dispute, as per Clause 15.1 of the hypothecation agreement. This point has been dealt by the Hon'ble Uttar Pradesh State Consumer Disputes Redressed Commission, Lucknow in case "The Headway Finance & Investment Co. Ltd. Vs. Sarla Devi, III (1995) CPJ 110 and held in para No.10 (relevant portion) as follows:-
"10. The plea that the terms in the agreement that in case of any dispute the same shall be settled at Agra had the effect of ousting the jurisdiction of a District forum other than at Agra, for that reason alone, is not sound in law. Such a term would clearly be hit by the provisions of Sections 23 and 28 of the Indian Contract Act, being opposed to public policy and being oppressive to a consumer defeating the specific provision of Section 11 of the Consumer Protection Act."
By any Act of the party or by way of any contract between the parties, the provisions under the CP Act cannot be defeated to oust the jurisdiction vested in it by law.
10. We have examined law laid down by the Hon'ble Supreme Court titled as ICICI Bank Limited Vs. Parkash Kaur and others in appeal No. 266 of 2007 decided on 26.02.2007, wherein, the Supreme Court has held that the recovery of loan or seizure of vehicle could be done only through legal means and this law was followed by National Consume Disputes Redressal Commission New Delhi in Revision Petition No. 4254 of 2012 decided on 05.11.2014 titled as M/s Sundaram Finance Ltd. Vs. Sh. Atul Kumar, wherein, it was held that loan for purchase of vehicle taken, in case of default in repayment-seizure of vehicle could be done only through legal means and not by force. Our own State Commission has also held in F.A No. 656 of 2011 decided on 16.05.2014 titled as Seema Rani Vs. Shri Ram Transport Finance Ltd. held has under:-
"10 No evidence has been produced by the OP in the present case that before repossessing the vehicle notice was duly served upon the complainant to repay the amount due in respect of the loan and that in case of non-payment thereof, the vehicle would be repossessed/seized."
In view of above observation, we record this observation that no repossession notice of the vehicle was issued to the complainant by OP before repossessing the vehicle. From perusal of Ex.R-8, it is clear that it pertains to intimation by telegram as under:-
"To
The SHO
Police Station
Baldev Nagar
Ambala City
Vehicle registration No.PB-23-J-8466 has been seized due to non-payment of monthly installments. Please do not enter any criminal and Theft report above said this vehicle.
This is for your kind information only
Shri Ram Transport Finance Company Ltd.
From perusal of legal notice issued by the appellants to the complainant Ex.C-6 as mentioned in the last line of the legal notice, he was directed to pay a sum of Rs.2,84,522.79P, which was outstanding on 27.11.2012.
11. From the contents of this exhibit, it is made out that no repossession notice of vehicle was issued to the complainant for seizing his vehicle. From perusal of Ex.R-8, it is established that the vehicle was seized illegally and that too by use of force from the complainant by OP. The District Forum had rightly rejected the appellant's claim, vide Ex.R-5 as no loan agreement except the hypothecation loan agreement for a sum of Rs. 2 lac was placed on the record. In absence of any loan documents, no reliance can be placed on Ex.R-5 and its authenticity is not clear. Thus, the District Forum had rightly discarded Ex.R-5 statement of account placed on file by the OP at the time of deciding the complaint. We find that District Forum awarded the compensation of Rs.1 Lac to complainant, whereas, complainant prayed for compensation of Rs.61,000/- in the complaint. We are unable to award compensation beyond the prayer of the complainant in this appeal.
12. In view of the above observations, we reduce the amount of compensation from Rs.1 lac to Rs.61000/- and affirm the rest of the order of District Forum in this appeal. The appeal is partly accepted and partly rejected in this case..
13. Appellant had deposited a sum of Rs.25,000/- at the time of filing of this appeal in the Commission. The registry is hereby directed to remit Rs.25,000/- alongwith interest, if any, accrued thereupon in favour of the complainant by way of demand draft/cheque after the expiry of 45 days from the date of receipt of this order. In case of non-compliance of order, the complainant can resort to execution proceedings under Section 25 & 27 of Consumer Protection Act, 1986 before competent forum.
14. Arguments in this appeal were heard on 26.08.2015 and the order was reserved. Now, the order be communicated to the parties as per rules. The order be sent to District Forum for necessary compliance' as well.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar)
Presiding Judicial Member
(H.S. Guram)
Member
September 02, 2015
RK 2
