Presented by Miss R. Pattnayak, President .
(1) The Present Complaint Pertains to deficiency in Service as envisaged under the provision of Consumer Protection Act, 1986 and its brief fact is as follows.
(2) The Complainant has purchased a Tata Indigo CS Car bearing its Registration No. OR-17K-5540 being financed by the Opposite Party Namely Cholamandalam investment and finance company limited, Bargarh, which is to be payable in monthly installment of Rs.10,480/-(Rupees ten thousand and four hundred eighty)only through cheque to the Opposite Parties. As Per the agreement between the complainant and Opposite Party, he has paying the loan installments regularly starting From Dt.10/07/2010 at the rate of Rs.10,480/-(Rupees ten thousand and four hundred eighty)only per month to the Opposite Party through depositing the cheque. To recover the monthly loan installment, the Opposite Party as a procedure every time present a cheque of Rs.10,480/- Rupees ten thousand and four hundred eighty)only given by the Complainant before the UCO Bank, Bhatli Branch for realization and the said bank paid the cheque amount to the Opposite Party.
On Dt.10/10/2012, when the Opposite Party presented the cheque bearing No.583804, Dt.10/10/2012 of Rs.10,480/- (Rupees ten thousand and four hundred eighty)only for realization of 4th installment through its bankers, the same had been returned without making payment to the Opposite Party by the Bank with a cheque return memo Dt.10/10/2012 with a reason of return as “Todays opening balance is insufficient” though there was sufficient fund in the said account of the Complainant. The Complainant further submits that on Dt.07/01/2013, the Opposite Party received the installment from the bank an amount of Rs.10,480/- (Rupees ten thousand and four hundred eighty)only i.e. installment of Dt.10/10/2012. Again the Opposite Party threated the Complainant to pay the installment, with penalty otherwise they will take away the vehicle from the complainant. So the Complainant paid an amount of Rs.12,455/-(Rupees twelve thousand four hundred fifty five)only in the office of the Opposite Party on Dt.08/01/2013 in spite of having received the previous installment of Dt.10/10/2012 which has been suppressed by them.
It is submitted by the Complainant that, since the Opposite Party compelled the Complainant to pay the amount with penalty as a result, the Complainant sustained damages and mental agony.
Being aggrieved, the Complainant is constrained to file this case against the Opposite Party on Dt.11/02/2013 praying to direct the Opposite Party either to return or adjust the amount already taken toward installment and compensation of Rs.50,000/-(Rupees fifty thousand)only in the interest of justice.
In support of his case, the Complainant relies on the documents, which are annexed to the case record.
Notice was duty served upon the Opposite Party and the Opposite Party appeared on Dt.14/08/2013 and file his version on Dt.22/10/2013.
On his version as well as in the oral argument the Opposite Party while denying all the allegations raised by the Complainant has submitted that the instant consumer complaint is not maintainable before this forum in view of the fact that there exist two clause namely, the 'Arbitration' clause and 'Jurisdiction' clause in the said agreement, which reveals that if any disputes between the parties arise that is to be referred to the sole Arbitrator for Arbitration and all the disputes arising out of the agreement, shall be exclusively triable by the court of Chennai. The Opposite Party admitted that the Complainant has purchased the said vehicle being financed by him and the Complainant has been paying the loan installments regularly stating from Dt.10/07/2012, @ Rs.10,480/-(Rupees ten thousand four hundred eighty)only per month to him through Cheque. It is further admitted by the Opposite Party is that vide letter Dt. 31/12/2012, UCO Bank requested for a representation of Cheque No.583804 @ 10,480/-(Rupees ten thousand four hundred eighty)only which was earlier returned by bank due to poor visibility of account number. After that Citi Bank being one of the collection house bank For Cholamandalam investment and finance company limited informed the Opposite Party. Immediately on getting confirmation from the Complainant, the said Cheque was represented again and was cleared accordingly on Dt.07/01/2013. After clearance of the of the Cheque on Dt.07/01/2013, the Complainant on Dt. 08/01/2013 came to the office and preferred to deposit one EMI in case along with over dues and Cheque bouncing charges showing reason that due to this type of banking errors, the financial track of the Complainant in getting hampered, so he wished to deposit. One extra E.M.I. by cash and accordingly a money receipt was raised against the receipt of one extra E.M.I.. He further submitted that the Cheque bouncing charges and late payment charges are in accordance to the agreed terms of the agreement which have been voluntarily been paid by the complainant and reflected on SOA. During repayment tenure there is no bar to make payment of additional EMIS which the Complainant has made on his own will. The Opposite Party further submits that, the present disputes is barred under the provisions of Section-11(eleven) of the Code of Civil Procedure, because prior to this dispute the Complainant had previously filed a dispute being Consumer Complaint No. 44/2012 before this Forum where the present Opposite Party company as one of the opposite party and the complainant filed this second dispute to harass the Opposite Party company, so he prayed to dismiss the case with exemplary cost.
In support of his case, the Opposite Party filed certain documents, which are attached to the case record.
Heard the arguments from both the Parties. After going through this case record and Consumer Complaint No. 44/2012 already disposed by this Forum on Dt.21/08/2013, the only point of dispute, that arise for consideration.
Whether the present case is barred by the principle of Res-Judicata ?
Regarding this issue, the forum found that the subject matter of the present case is directly and substantially in issue in the earlier case filed by the present complainant i.e. Consumer Complaint No. 44/2012 which was heard and disposed off by this Forum by it's Order Dt.21/08/2013.
According to Section-11(eleven) of Civil Procedure Code. “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same tittle in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”
So the fundamental rule of the principle of Res-Judicata is that if between the same parties a lis/ any issue has been finally adjudicated by a competent court of law, the said lis/ issue can not be Re-adjudicated in a subsequent proceeding and will be barred by the principle of Res-Judicata.
In view of the above this complaint case is not maintainable being barred by the principle of Res-Judicata and the same is accordingly dismissed.
Case is disposed off Accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree, (Miss Rajlaxmi Pattnayak) (Smt. Anjali Behera) ( Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
