IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 31st day of July, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 26/2020 (Filed on 01/02/2020)
Complainants : Vinod M.J.
S/o. M.J. Mathew,
Murickananickal House,
Punnaveli P.O.
Nedumkunnam village,
Changanacherry taluk
(Adv. K.S. Surendra Das)
Vs.
Opposite party : Cholamandalam Investments &
Finance Co. Ltd.
Kottayam branch,
Rep. by its Branch Manager,
Kottayam - 686004
(Adv. R. Ajith)
O R D E R
Smt.Bindhu.R, Member
The complaint filed under Section 12 of Consumer Protection At, 2019.
The complainant took a loan of Rs.50,000/- from the opposite party vide agreement no. XVFP KTM 000006231156 dated 26.09.2011 and the said vehicle was registered as KL-33-C-3296 with the sub regional transport office, Changanassery. The complainant has closed the said loan in 2014 itself but when he demanded the NOC, the opposite party denied the same for the reason that there was another loan on another vehicle KL33-E-637in the name of the complainant. Believing this the complainant approached one Sunilkumar, Koruthodu for arranging the money for closing the other loan by pledging the RC of KL-33-C-3296 Tipper lorry. The said Sunilkumar paid Rs.2,20,000/- in the opposite party institution.
But when the complainant later approached the said persons, they did not give the vehicle back. Thereafter when the complainant again approached them, he understood that the said Sunilkumar had transferred the vehicle to one Shafeeq mon by creating a fake registration certificate. The complainant has filed a private complaint before the Magistrate court, Kanjirappalli against the fraudulent transfer of the said vehicle. Accordingly a crime is registered with the Mundakkayam Police station as crime no 1662/2017 under sections 403, 406, 418, 420, 465, 467, 468, 471,34. The police had filed final report in this case. The complainant came to know that the opposite party had issued NOC in the name of the said Shafeeq mon without the knowledge or consent of the complainant. This act of the opposite party is unlawful. The opposite party along with the said Sunilkumar and Shafeeq mon had conspired to transfer the said vehicle of the complainant causing huge loss to the complainant. The said vehicle was of Rs.8,00,000/-. The complainant sent a legal notice to the opposite party demanding the said Rs.8,00,000/- and Rs.2,00,000/- as compensation which was received by the opposite party on 10.01.2019.On 13.02.2019 the opposite party sent a reply notice to the complainant stating that they had issued NOC to one Sunilkumar as per the instruction given by the complainant. But the complainant had not entrusted any body to issue the NOC. So the deficient act of the opposite party in issuing the NOC to a third person has caused a financial loss of Rs.8,00,000/- to the complainant and mental agony which needs to be compensated withRs.2,00,000/-. Hence this complaint is filed.
The opposite party appeared on receipt of notice and filed version defending the allegations of the complainant with the contentions that the complainant is not a consumer within the meaning of the consumer protection Act. As the complainant had availed another commercial vehicle loan from the head office of the opposite party and so the complainant had availed the loans for commercial purpose and not for his livelihood. The two vehicle loans are admitted for the vehicle numbers KL32C3296 and KL-E-637.The agreement date and agreement number in respect of the vehicle no KL33-C-3296 mentioned in the complaint is not correct. The agreement date is 25-08-2011 and agreement no is XVFPKTM00000623156.Therefore the related averments in paragraph 3 are false and denied. The last payment was made by the complainant on 31-03-2015and the opposite party by waiving the balance interest due amount and closed the account on 27-04-2015. But the complainant had never approached this opposite party for the issuance of the NOC of the vehicle. The complainant is a defaulter in one vehicle loan account and as per the terms of the loan agreement he was not eligible for NOC in respect of the closed loan account. The opposite party filed a petition under s.9 of the Arbitration and conciliation Act before the Hon’ble High court of Madras for the repossession of the vehicle as an interim measure of protection and an advocate commissioner was appointed. But the complainant hide the vehicle and approached the opposite party for a onetime settlement in the month of august, 2016. The complainant came to the office of the opposite party with one Sunilkumar P.R, S/o Raveendran P.K., Koruthode and informed the opposite party that he sold the vehicle bearing registration no KL-33-C-3296 to the said Sunilkumar P.R without the knowledge of the opposite party on an agreement to pay Rs.2,20,000/- to the pending loan account of the vehicle KL-33-E-637. Accordingly on that day itself the complainant gave an authorisation letter to Sunilkumar for receiving the NOC of vehicle bearing registration no KL-33-C-3296 from the opposite party. On 10-08-2016 the said Sunilkumar P.R paid Rs.2,20,000/- as settlement amount and the opposite party closed the account on 31-08-2016 by waiving the interest. The complainant received the NOC dated 01-09-2016 for vehicle bearing no KL-33-E-637 in the first week of September 2016 and Sunilkumar P R received the NOC dated 20-09-2016 of the vehicle no KL-33-C-3296 upon producing the authorisation letter from the petitioner and attested copy of adhar card. The said NOC also was issued in the name of the complainant and not in the name of Sunilkumar, the NOC issued is valid for a period upto 19-11-2016. All these facts were well known to the complainant. Moreover, the NOC when produced before the SRTO, Changanassery or any other RTO, they shall give a proper notice to the complainant and opposite party before effecting the change of ownership and the complainant had to give necessary clearance for transfer of ownership in the concerned SRTO. The opposite party was not aware of the crime no 1662/17 of Mundakkayam police station. The opposite party has not committed the alleged crime. As the NOC was issued to the complainant and therefore Sunilkumar P R, Shafeekmon and registered office of the opposite party company are necessary parties to this petition. There petition itself is bad for non joinder of necessary parties. The vehicle was not in control or possession of the opposite party. The complainant has filed the complaint in collusion with the said Sunilkumar and Shafeekmon. There is no deficiency of service or conspiracy on the part of the opposite party. The petitioner had issued a notice dated 7-01-2019 to circumvent the limitation specified in the consumer protection Act. The account was closed on 27-04-2015 and NOC was issued in September 2016. Therefore the complaint is barred by limitation.
The complainant filed affidavit towards the evidence along with documents which were marked as Exhibits A1 to A5 and the opposite party filed affidavit in lieu of chief examination and marked exhibits B1 to B8. Complainant was examined as PW1 and DW1 to DW3 were examined from the part of the opposite party .
On the basis of the above stated pleadings and evidence, we frame the following issues.
- Whether the complaint is barred by limitation?
- Whether there is any deficiency in service on the part of the opposite party and if it is proved, what are the reliefs to be granted to the complainant?
Issue no 1
The opposite party contented that the complaint is barred by limitation as the cause of action i.e the date of issuance of NOC was on 20.11.16. The complaint is filed only in 2020. So a period of 3 years has been elapsed from the origin of cause of action.
We have perused the material on record carefully. At the first available opportunity in the Written Statement itself, the Opposite Party has raised an objection that the Complaint filed by the Complainant is barred by Limitation. However, the objection with regard to limitation went unnoticed. Since the question relating to Limitation goes to the root of the matter and may render the order illegal, we would have to first see whether the Complaint was filed within the requisite time period i.e., within two years of accrual of cause of action.
When we take up the issue of limitation, we find that though the issuance of the disputed NOC was on 20.11.16. Thereafter on 01.01.19 the complainant sent a lawyer’s notice to the opposite party to which the opposite party replied on 8.02.2019.
Section 24 of the Consumer Protection Act,2019 prescribes limitation period for admission of a complaint by the consumer fora thus:
"24A. Limitation period - (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub- section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
"(Ref:Babu Sebastian vs Kottayam District Co-Operative Bank ,2021, NCDRC)
Moreover, Gyan Gupta Vs.Delhi Development Authority, Hon’ble Supreme Court held that Honourable Delhi State Commission observed that
“5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.”
Here in the case on hand, the complainant filed a criminal case against the said Sunilkumar in 2017. So the complainant has got knowledge of the cause of action in August 2017 itself and he issued a legal notice only in January 2019 and the complaint was filed in 2020 only. There is no explanation for the delay occurred in the complaint or affidavit. Not only that there is no petition filed for condoning the delay. Mere issuance of the notice does not create cause of action. So we find that the case is barred by limitation and hence the complaint is dismissed.
Pronounced in the Open Commission on this the 31st day of July, 2023
Smt. Bindhu.R, Member Sd/-
Sri. Manulal.V.S, President Sd/-
Sri. K.M.Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – M.J. Mathew
Witness from the side of opposite party
Dw1 – Maneesh T.T
Dw2 – Naveen T.P.
Dw3- P.R. Sunilkumar
Exhibits marked from the side of complainant
A1 – Notice dtd.01-01-2019 by Adv. K.S. Surendran
A2 – Postal receipt
A3 – Postal acknowledgement card
A4 – Notice dtd.08-02-19 to Adv. Surendra Das
A5 –Copy of final / charge sheet No.138/19
Exhibits marked from the side of opposite party
B1 – Copy of CMP No.5316
B2- Copy of loan agreement
B3 – Copy of oral statement by Vinod Mathew
B4- Copy of agreement 01-08-16
B5-NOC dtd.20-09-19 by opposite party
B6- Transfer of NOC (KL-33-C-3296)
B7 – Copy of aadhar card in the name of P.R. Sunilkumar
B8 – Power of attorney
By Order
Assistant Registrar
