DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                        ISBT KASHMERE GATE DELHI

CC/243/2015

No. DF/ Central/

SMT. NIRMAL GUPTA

W/O SH. MOHAN LAL GUPTA

R/O 81, JAGRITI ENCLAVE,

DELHI-110092                                              

                                                                                      …………..COMPLAINANT

VERSUS

 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD.

THROUGH ITS MANAGING DIRECTOR/DIRECTORS

DARE HOUSE, 2, N.S.C. BOSE ROAD, PARRYS,

CHENNAI-600001

ALSO HAVING ITS BRANCH OFFICE AT

PLOT NO. 6, 1^st AND 2^nd FLOOR,

PUSA ROAD, KAROL BAGH,

OPP.PETROL PUMP,

NEW DELHI-110005

                                                                                               …..OPPOSITE PARTY

                                                              ORDER                                       

Rekha Rani, President

1. Smt. Nirmal Gupta (  complainant) filed  the instant complaint  U/s 12 of the Consumer Protection Act (in short the Act) against Cholamandalam Investment and Finance Co. Ltd (OP) alleging that she applied for a home equity loan for an amount of Rs. 3 Crores which was sanctioned and disbursed for a period of 180 months at an EMI of Rs. 3,95,500/- per month. She had been paying regular  monthly installments  of the above said loan amount. She wanted to fore close the said loan account as she intended  to shift to another financial institution.   She   formally     applied for foreclosure of  the said loan account and her request was accepted. OP vide their letter dated 31.12.2014 requred the complainant to pay  a sum of Rs.  3,0333354.00/- which included outstanding loan amount with pre payment charges till 02.01.2015. In this manner OP charged foreclosure charges of Rs. 1291869.00 (Rupees Twelve lacs Ninety One Thousand Eight Hundred Sixty Nine Rupees) @ 4% on total principal outstanding amount of Rs 28743985/-.   Complainant paid foreclosure charges being unaware of the RBI guidelines dated 07.05.2014. When  she came to know about the said guidelines she requested the OP to refund for the same vide her email dated  07.02.2015. OP  vide  reply dated 02.03.2015 justified charging amount of  Rs. 12,91,869.00 on total principal outstanding amount of  Rs 2,87,43,985/-. Hence the complaint seeking direction to OP to refund foreclosure charges of Rs.  12,91,869.00/- with interest till realization, Rs 1 Lacs towards compensation for causing mental agony and Rs. 50,000/- towards litigation cost.
2. On receipt of notice the OP appeared and contested  the claim vide its written statement wherein it is  merely stated that there is no violation of RBI guidelines in charging foreclosure charges. It is also stated that claim is barred by limitation and complainant is not a consumer.
3. We have heard Mr. Vineet Mehta counsel for the complainant and Mr. Shavoj Khan proxy counsel for the OP.
4.  Admittedly complainant vide her application no. 167455 dated 19.01.2013 applied for home equity loan of Rs. 3 crore. She was sanctioned and disbursed loan amount of Rs. 3 Crore by the OP. She had  paid  to OP total sum of Rs. 3,10,00,000/- which included principal outstanding of Rs 2,87,43,985/- and  foreclosure charges of Rs.  12,91,869.00/-.The loan amount applied, sanctioned and disbursed is Rs. 3 Crore which is beyond the pecuniary jurisdiction of this forum.
5. As per Section 11 (i) of the Act the District Forum has pecuniary        jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceeds Rs. 20 Lacs.
6.  Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous   Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016  observed that value of goods & services  and value of the relief claimed  is to be   seen for the purpose of pecuniary jurisdiction instead of value of alleged  deficiency.
7. The same question again came up  before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum.  The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of  the said service is taken into consideration for the purpose of determining   pecuniary jurisdiction.
8. In another case titled  Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission  judgment in  Ambrish Kumar Shukla  (supra)  was again referred and following relevant part  of the said judgment was quoted:  

“Reference order dated 11.8.2016   Issue No. (i)   It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”

9. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant  had already paid the entire loan amount and had agreed to pay the full and  final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized  the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition.  The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles.   Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High  Court of Odisha, the Daimler Financial Services India   taking advantage of the situation had not issued NOC to the complainant.  The complainant hence filed a  Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and  for directing Daimler Financial Services India to issue NOC in respect of the two vehicles.  The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The  Hon’ble National Commission observed that :

“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh,  the cost of service and compensation asked for is Rs. 95,000/-.  Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.

<>10.“In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint, where the value of the goods or services as the case may be, and the compensation, if any, claimed in the complaint, exceeds Rupees One Crore.  As held by a Three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd.,  decided on 07.10.2016, the value of services in such cases, means the sale consideration agreed to be paid by the flat buyer to the builder. The following view was taken by this commission in CC/198/2015 Dushyant Kumar Gupta Vs Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 31.01.2017. 

11.  Hon’ble Apex Court has repeatedly held that the question of jurisdiction can be raised at any stage of the proceedings as the court/tribunal/forum is bound to decide the same before proceeding to adjudicate the matter on merits as the issue of jurisdiction goes to the root of the matter and decision of the court/tribunal/forum without jurisdiction is a nullity which cannot be executed.
12. In Jagmittar Sain Bhagat (Dr.) v. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = Civil Appeal No. 5476 OF 2013 dated 11/07/2013,Hon’ble Apex Court observed:

“Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at of the any stage proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/  inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. 

13. Since this forum lacks pecuniary jurisdiction to adjudicate the claim , the  objection of the OP that complainant is barred by limitation or that she is  not  a consumer cannot  be agitated before this forum. The instant complaint be accordingly returned to the complainant to be presented before the appropriate forum having jurisdiction . Copy of the  same  be retained  on record. Copy of this order be sent  to the parties as statutorily required. File be consigned to record room.

           Announced on this      ^th    Day  of February 2018.