Haryana

Panchkula

CC/255/2014

JOGINDER SINGH. - Complainant(s)

Versus

BRANCH MANAGER,KARVY FINANCIAL SERVICES LTD. - Opp.Party(s)

COMPLAINANT IN PERSON.

30 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                       

Consumer Complaint No	:	255 of 2014
Date of Institution	:	05.12.2014
Date of Decision	:	30.03.2015

Joginder Singh S/o Sh.Ajit Singh, R/o House No.1732, Sector 4, Panchkula.

                                                                                                            ….Complainant

Versus

Branch Manager, Karvy Financial Services Ltd., SCO No.35, First Floor, Mansa Devi Complex, Swastik Vihar, Sector-5, Panchkula.

                                                                                          ...Opposite Party

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:                    Mr.Dharam Pal, President.

                  Mrs.Anita Kapoor Anand, Member.

                  Mr.Anil Sharma, Member.

 

For the Parties:         None for the complainant. 

                                    Mr.Sushil Grover, Adv., for the Op.

 

ORDER

(Dharam Pal, President)

 

1. Joginder Singh-complainant has filed this complaint against the Op with the averments that he was in need of money and contacted the Op for the financial assistance. The Op disclosed the complainant that the Op company is best company and providing financial assistance on a very meager rate of interest & flexible installments for the repayment of loan. The Op also assured the complainant that the interest on the loan amount could be paid even at the time of clearing the loan. On the assurance of the Op, the complainant agreed to take the loan from the Op and pledged his gold weighing gross weight 94.98 gms consisting of 3 number of jewellary items i.e. Ring, Neclace and Chain vide loan account No.PR00181673 dated 02.03.2013 and availed the financial assistance of Rs.1,82,389/- which was to be paid alongwith interest till 24.02.2014. On 28.01.2014, the complainant received a letter wherein the Op told the complainant to collect an amount of Rs.106/- as excess amount received by Op after the sale of gold articles pledged by him with the Op. The complainant immediately contacted the Op and asked the reason for selling the gold article of the complainant which were pledged with the Op before due date of refund of the loan amount alongwith interest i.e. 24.02.2014. The complainant also told the Op that the said jewellery was very valuable for the complainant as the same was the last memories of his grandmother. The complainant requested the Op to receive the total amount alongwith interest and return his gold articles but the OP refused to return the same and insulted the complainant in the presence of other customers & employees. The Op further told the complainant that the Op was at liberty to sell the gold articles as per their wish and nobody could dictate it any term. The complainant issued legal notice dated 28.04.2014 but to no avail. The complainant submitted that on 08.08.2014, the counsel for the complainant was out of station and the complainant was suffering from acute viral fever and dehydration due to that reason, the complainant as well as his counsel could not appear before the Forum and due to non-appearance, the case was dismissed in default. The act and conduct of the Op amounts to deficiency in service on its part. Hence this complaint.
2. On 11.02.2015, the Op filed written statement alongwith the application for dismissal of the complaint. In the written statement, the OP has taken some preliminary objections and submitted that the complaint filed by the complainant is not maintainable. It is submitted that earlier the complaint of the complainant was dismissed in default on 08.08.2014 and this complaint under reply is liable to dismissed. On merit, it is submitted that the Op never assured the complainant that the interest on the loan amount could be paid at the time of clearing the loan. It is submitted that due date of interest was specifically mentioned i.e. 30.05.2013. It is denied that the complainant availed the financial assistance of Rs.1,82,389/- whereas the complainant was sanctioned a financial assistance of Rs.1,83,000/-. It is denied that the complainant was not aware about the auction of the gold articles and the same is evident from the auction notice dated 29.08.2013 which was duly served upon the complainant as the complainant was failed to comply with the payment due notice dated 01.07.2013 and loan recall notice dated 30.07.2013. It is submitted that from the auction notice, it is cleared to complainant to clear the outstanding dues by 07.09.2013 failing which the party should be constrained to initiate the auction proceedings. It is submitted that the Op also published the auction notice in English and Punjabi newspapers namely “Business Standard” and “Desh Sewak” dated 14.010.2013 but the complainant never raised any objection and kept mum in that regard. It is submitted that the complainant himself requested the Op vide handwritten letter dated 23.01.2014 for issuance of auction statement and auction details of his account. It is submitted that the legal notice dated 28.04.2014 was sent to the Op under section 138 of the Negotiable Instruments Act, 1881 which was duly replied by the Op vide reply notice dated 13.05.2014. It is denied that on 08.08.2014, the complainant was suffering from viral fever or dehydration.
3. In his application for dismissal of the complaint, the Op has submitted that the complainant has earlier also filed a complaint before this Forum which was dismissed in default on 08.08.2014. It is also submitted that the complainant has not approached the Hon’ble State Commission for getting the order set aside or to get the earlier complaint restored. It is further submitted that this Forum has no power to review or recall its order under the Consumer Protection Act, 1986.
4. On 02.03.2015, the complainant has filed reply to the application for dismissal of the complaint and submitted that earlier complaint of the complainant was dismissed in default due to non-appearance of the complainant as well as his counsel on 08.08.2014 as on 08.08.2014, the counsel for the complainant was out of station and the complainant was suffering from acute viral fever and dehydration due to which they could not appear before the ld. Forum.
5. It has also been stated in the complaint filed by the complainant dated 05.12.2014 that he had earlier filed a complaint before the District Forum which was ordered to be dismissed in default on 08.08.2014 because of non-appearance of the complainant as well as his counsel as the counsel for the complainant was out of station and the complainant was suffering from acute viral fever and dehydration.
6. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us.
7. A material point involved in the present case is that the second consumer complaint on the same facts has been made by the complainant after his first complaint was dismissed in default for his non-appearance on 08.08.2014, is maintainable or not. In the second complaint duly signed by the counsel for the complainant, in para 11 of the complaint, it has been stated as follows:-

“That it is stated that earlier the complainant had filed complaint under Section 12 of the Consumer Protection Act, 1986 before the Hon’ble District Consumer Disputes Redressal Forum, Panchkula which was dismissed in default due to non appearance of the complainant as well as his counsel on 08.08.2014. As on 08.08.2014, the counsel for the complainant was out of station and the complainant was suffering from acute viral fever and dehydration. And due to this reason the complainant as well as his counsel could not come present before this Hon’ble Forum on the date fixed i.e. 08.08.2014 and due to non appearance the case dismissed in default.”

8. The Hon’ble National Commission in revision petition No.1931 of 2013 titled as Ansal Housing & Construction Ltd. versus Indian Machinery Company decided on 24.05.2013 wherein it has been held as under:-

“9.       It is very clear from the version of the complainant himself that the first complaint No.307/2007 was dismissed on 29.08.2007 for his non-appearance. It is a matter of general legal procedure that the complainant could have agitated for getting the said order dated 29.08.2007 set aside from the competent authority. In case, the competent authority did not agree to his request, he could have moved the higher authority by way of appeal, revision petition, etc. The filing of second complaint on the same facts and circumstances has not been provided anywhere as per the established legal provisions. This Commission has also observed in the case of “Purusharath Builders Pvt. Ltd. versus Uppal Housing Ltd. & Anr. [III (2012) CPJ 500 (NC)]” that the second complaint was not maintainable. In the said case, the party had withdrawn the previous complaint on the ground that the previous counsel was not competent. The Commission observed that if there was defect in the first complaint, amendment application should have been moved or permission could have been sought or request could have been made to have liberty to file fresh complaint. It was not possible to give permission to fill-up lacuna at this stage.

10.       It is very clear from the above facts that the orders passed by the Fora below suffer from a major irregularity as they have dealt with the second complaint which was legally not maintainable. In view of these circumstances, there is no need to go into the other aspects of the case and the present complaint deserves to be dismissed on this ground alone. The petitioners have also taken-up this issue in the grounds of revision petition and also during the course of oral arguments. The revision petition is, therefore, accepted. The orders passed by the State Commission and District Forum are set aside and the consumer complaint is ordered to be dismissed with no order as to costs.”

9.         For the reasons recorded above, we are of the opinion that the present complaint is not maintainable and the same is deserved to be dismissed. Hence, the present complaint is dismissed accordingly, the parties shall bear their own costs.

10.       A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

 

Announced

30.03.2015         ANIL SHARMA      ANITA KAPOOR DHARAM PAL

                           MEMBER        MEMBER             PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                                     

                                                                        DHARAM PAL

                                                            PRESIDENT