FIRST  APPEAL NO. 391 OF 2015

FIRST  APPEAL NO. 355 OF 2015  

          Heard learned counsel for both sides.

2.      Both the appeals arise out of common impugned order passed by the learned District Forum,   Bolangir in CC No. 13 of 2013. Therefore, both the appeals were heard together. This common order shall govern the result of both the appeals.

3.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum. FA No. 391 of 2015 has been filed by OP Nos. 3 and 4 – M/s Cholamandalam Investment & Finance Co.Ltd whereas FA No. 355 of 2015 has been filed by OP No.1 – Aditya Motors.

4.   The brief facts of the case of the complainant is that complainant purchased a Mahindra Bolero XL 2 WD from Aditya Motors, Cuttack after incurring loan from the financer OP Nos. 3 and 4. Complainant alleged inter alia that he has issued 20 numbers of post dated cheques to OP No.4. As such complainant alleged tht he paid all the EMIs. Thereafter, complainant asked for issue of NDC and also he found that he has paid excess amount of Rs.22,740/- for which asked for refund of the said amount but OP Nos. 3 and 4 did  not accede to his request. So he filed the complaint.

5.      Per contra, OP No.1 filed written version stating that complaint is not maintainable as it has no territorial jurisdiction. Apart from this, OP No.1 has received the entire amount and issued the receipt accordingly.

6.      OP No.2 has averred in the written version that he is not the Sales Representative of OP No.1. OP No.2 submitted that he has no relationship with anybody and he is unnecessarily suited.

7.      OP Nos. 3 and 4 filed written version refuting the charges. According to them, they have financed Rs.4,00,000/- payable in 46 EMIs and no excess payment was received by them. They have received the EMIs as per the payment schedule. Thus there is no cause of action against them for which complaint should be dismissed.

8.      Learned District Forum after hearing both parties passed the following impugned order:-

                             “xxx   xxx   xxx

            (1) We hereby direct the OP 1 to pay a sum of Rs.2,10,000/- (Rupees Two lakhs ten thousand) only along with interest @14.42% P.A. from the date of deposit/payment made by the complainant till the date of this order to OP 3 and 4 and also to pay Rs.1,000/- (Rupees One thousand) only, as litigation expenses to the complainant within 30 days of this order failing which interest @12% P.A. will accrue on the entire amount till payment.

(ii)       We further direct OP 2 to pay a sum of Rs.10,000/- (Rupees Ten thousand) only, towards the loss sustained by the complainant along with a compensation of Rs.2,000/- (Rupees Two thousand) only towards causing loss, harassment and mental agony, for the active connivance with other and misinforming the forum by affidavit I addition with a sum of Rs.1,000/- (Rupees One thousand) only, towards litigation expenses to the complainant within 30  days of this order, failing which the entire amount carry interest @12% per annum from the date of application till realization.

(iii)      We further direct the OP 3 and 4 shall refund the excess amount already deposited by the complainant amounting to Rs.22,740/- (Rupees Twenty two thousand seven hundred forty) only and pay a compensation of Rs.5,000/- (Rupees Five thousand) only along with Rs.1,000/- (Rupees one thousand) only as litigation expenses to the complainant within 30 days of this order, failing which the entire amount of Rs.28,740/- will carry interest @12% P.A. till payment and they shall not collect any pie from the complainant.

(iv)      The interim order passed on dated 27.2.2013 vide Misc. Case No.2/13 in the aforesaid case is stand vacated.”

9.      Learned counsel for the appellant in FA No. 355 of 2015 submitted that  learned District Forum has lost sight of the fact that it has no territorial jurisdiction  because no cause of action partly or wholly arise in Bolangir. Also there is no branch of OP Nos. 3 and 4 at Bolangir. Apart from this, the learned counsel for the appellant in FA No. 355 of 2015 endorsed  versions of appellants in FA No. 391 of 2015.

10.    Learned counsel for the appellant in FA No. 391 of 2015 submitted that the OP has already got the arbitration award in their favour and as such the complaint is not maintainable. According to them the allegations of excess amount as averred in the complaint is absolutely imaginary and improper. So the appellant submitted to allow the appeal by setting aside the impugned order.

11.    Learned counsel for the appellants further submitted that   no cause of action arose at Bolangir but due to transaction of OP No.2 perhaps complaint was filed at Bolangir. He supports the argument with regard to the lack of territorial jurisdiction.

12.    Considered the submission of respective parties and perused the DFR including the impugned order.

13.    The complainant is required to prove the deficiency of service on the part of the OPs.

14.    It is admitted fact that the complainant has incurred loan from OP Nos. 3 and 4. It is admitted fact that the complainant has purchased the vehicle by incurring loan from OP Nos. 3 and 4 and that vehicle was sold by OP No.1. It is equally admitted fact that the complainant has paid the entire loan amount to OP Nos. 3 and 4. The only question arises whether the complainant has paid excess amount of Rs. 22,740/- to OP Nos. 3 and 4. The complainant has not filed any scrap of paper to justify the excess payment of amount of Rs.22,740/-. It should be remembered that the party, who is required to prove the detail documents,  if fails to prove the same, he has to suffer. For the simple reason that  in a civil suit if none of the parties adduce evidence, the suit fails as it is for the plaintiff to prove the case he filed. Here in this case the complainant has only filed affidavit and cash receipts regarding purchase of the vehicle. Complainant has not proved by evidence that he is entitled to refund of Rs.22,740/-. When he has failed to prove the same, it cannot be said that he proved the deficiency of service on the part of the OPs.

15.    It is admitted fact that none of the cause of action arose at Bolangir and admittedly, the parties belong to Nuapada, Chenai and Cuttack. OP No.2 belongs to Bolangir but OP No.2 being agent denies any sort of role in this case. Complainant has failed to prove that any part of cause of action arose at Bolangir. It is well settled in law that District Forum has territorial jurisdiction to entertain complaint if cause of action fully or partly arises in the place where there is main office or branch office of concerned financer exists. Here neither the cause of action arises at Bolangir nor any of the branch of OPs is situated at Bolangir. The learned District Forum has discussed this point very improperly. Therefore, this Commission does not agree with the view of the learned District Forum. On the whole the complaint is not maintainable due to lack of territorial jurisdiction.

16.    In view of above discussion, the impugned order is not sustainable in law and as such it is set aside. Both the appeals are allowed.

The statutory amount deposited in both the appeals be refunded to the appellants with interest accrued thereon, if any on proper identification.

          DFR be sent back forthwith.

          Supply free copy of this order to the respective parties.