Complaint No.126 of 2019.

       Date of Institution:01.04.2019.

               Date of order:11.09.2023.

Mangal Singh Son of Kant Ram, resident of House No. 335, Ward No.10, Kartar Nagar, Batala, Tehsil Batala District Gurdaspur.

                                                                                                                                                  …...Complainant.                                        

                                          VERSUS

1.       Globe Trucking Ludhiana, Globe CV Pvt. Ltd. Jammu Road, Near Reebok Showroom, Sujanpur Pathankot through its proprietor/authorized signatory.

2.       Daimler Financial Services India Private Limited, RMZ Millenia Business Park, Campus 3B, Unit 301 and 302, Chennai-600096 through its Authorized signatory.

                                                                                                                                                         ….Respondents.  

                                         Complaint Under Section 12 of Consumer Protection Act.

Present: For the complainant: Sh.Uttam Raj Sharma, Advocate.

    For the opposite party No.2: Sh.Parshant Rao, Advocate.

   Complaint against opposite party No.1 had already been dismissed.

Quorum: Sh.Lalit Mohan Dogra President, Sh.Bhagwan Singh Matharu, Member.  

ORDER

Lalit Mohan Dogra, President.   

          Complainant Mangal Singh had filed the present complaint U/s 12 of the Consumer Protection Act against the opposite parties and praying that the directions may be issued to the opposite parties to settle the loan account with him and charge interest @ 2% per annum and received remaining loan amount through installment after excluding the amount of 20 installments already deposited by him to the opposite party No.2 through installments and withdraw illegal threats to snatch the truck in question from his lawful custody. Complainant further prayed that opposite parties be further burdened to pay Rs.20,000/- to him towards mental harassment and mental agony suffered to the clear cut deficiency in service on the part of opposite parties, in the interest of justice and any other relief may also be passed in his favour by accepting this complaint with cost.  

2.       The case of the complainant in brief is that on 04.08.2017, he purchased new truck mark Bharat Benz 3723 of 14 tyres bearing Chasis No.MEC2976CEHPO42567 and Engine No.400952D0042519  from opposite party No.1 for earning his livelihood for himself and family members and for self employment and financed the same from opposite party No.2 whose employee was sitting in the office of opposite party No.1 at Pathankot for an amount of Rs.31,17,956/- and except the income received from the truck in question he has no source of income and R.C. of the same was prepared by the complainant and registration No.PB-06-AK-0997 was allotted to him by the District Transport Officer, Gurdaspur. It was pleaded that at the time of financed the said vehicle rate of interest of 2% per annum was settled between the parties and complainant was continuously paid the installment of the truck in question to opposite party No.2 through HDFC Bank, Branch Amritsar Road, Batala bearing A/C No.50100086838961 and ICICI Bank, Jalandhar Road, Batala bearing A/C No.129801504745 at Batala and paid the 20 installments to the opposite parties i.e. Rs.70,250/- as one installment out of which 20 installments were paid by the  complainant i.e. 18 installments were paid through HDFC Bank, Branch Amritsar Road, Batala and ICICI Bank, Jalandhar Road, Batala bearing A/C No. 129801504745 at Batala and two installments were received by the employees of the opposite parties and when the employees received the installments from the complainant then complainant was asked for receipt from them but they told him that there is no need to issue any receipt and the installments were automatically added in his loan account but the complainant was under wrong impression that his two installments were added in his loan account. It was further pleaded that complainant approached to the opposite parties with the request to settle his account by charging interest @ 2% per annum and by excluding the amount which was already paid by him through installments and withdraw their illegal threat to snatch the truck in question from his lawful custody but the opposite parties putting of the matter with one pretext or the other and flatly refused to do so. It was also pleaded that opposite parties alleged that only 18 installments were paid by the complainant instead of 20 installments and also threatened that they will snatch the truck in question from the complainant illegally and forcibly by using coercive method. It was next pleaded that the above said act of the opposite parties is illegal, null & void as opposite parties are bound to settle the account with the complainant with 2% per annum interest and exclude 20 installments in the loan account, hence this complaint.

3.       Notice was issued to opposite party No.1 but it did not appear and complaint against opposite party No.1 was ordered to be dismissed vide order dated 07.01.2020 for non filing of correct address of opposite party no.1 by the complainant.

4.       Notice was also issued to opposite party No.2 who appeared through their counsel and filed written reply/version by taking preliminary objections that the opposite party No.2 is a company duly incorporated under the provisions of the Companies Act, 1956 and is registered as a Non-Banking Financial Company in terms of Reserve Bank of India Act, 1934 and carrying the business of granting financial assistance to its customers for purchasing various passenger and commercial vehicles; that complainant approached the opposite party No.2 and intended to avail financial assistance in order to purchase a commercial vehicle Bharat Benz Truck and representatives of the opposite party No.2 explained the terms and conditions of the financial documents and loan agreement which were duly read and accepted by the complainant and accordingly complainant along with one guarantor namely Sh.Harjit Singh entered into a loan agreement dated 27.06.2017 bearing contract No.20133269 and availed a loan amount of Rs.31,17,956/- and purchased a Bharat Benz Truck (Model BB 3723R) which was registered vide registration No.PB-06-AK-0997 and said loan agreement was duly executed between the complainant, guarantor and opposite party No.2 and complainant was agreed to repay the loan amount with interest @ 11.23% P.A. and as such he was liable to repay the said loan amount vide Ist EMI of Rs.15,165/- and rest 58 EMI of Rs.70,220/- on stipulated due dates commencing from 04.08.2017; that complainant and guarantor namely Sh.Harjit Singh defaulted in the timely payment of the EMIs and still an amount of Rs.26,84,173.35/- towards installments alongwith other charges are overdue and payable by the complainant; that the present complaint is not maintainable as this Hon'ble Forum/Commission lacks pecuniary as well as territorial jurisdiction to try and entertain the present complaint and the same is liable to be dismissed. It was stated that complainant himself admitted that he had purchased the chassis of the truck for an amount of Rs.29,53,135/-and obtained a loan to the tune of Rs.31,17,956/- from the opposite party No.2 which is above Rs.20 Lacs.; that the present complaint is not maintainable in the eyes of law as complainant is not a consumer as envisaged in Section 2 (d) of the CPA, 1986 because he had purchased the vehicle in question for commercial purpose for running his transport business. It was stated that complainant is having two another commercial trucks with regard to which he had availed another two loans from opposite party No.2 bearing contract No.20128394 and 20114924 and also filed two another complaints on the same titles bearing C.C. No.125 of 2019 and C.C. No.127 of 2019 which are pending before this Hon'ble Forum/Commission; that this Hon'ble Forum/Commission has no jurisdiction to entertain and adjudicate this complaint as it is not a consumer dispute as the proceedings initiated by the complainant is null & void; that the present complaint has been filed with a malafide intention to harass the opposite party No.2 in order to absolve from the liability of repayment of the loan amount and no deficiency of service as alleged by the complainant as the relief claimed by the complainant is outside the ambit of the CPA, 1986; that the present complaint is baseless and abuse of process of law as material facts have been suppressed by the complainant. It was stated that it is well settled law that in case any person signs contract document, he is bound by the terms and conditions enumerated therein; that present complaint is wholly misconceived, groundless and unsustainable in the eyes of law; that complainant has not come with the clean hands; that complainant is stopped by his act and conduct to file the present complaint and no legal right of the complainant has been infringed. On merits, it was stated that complainant is a transporter and had purchased the commercial vehicle in question for running the transport business and apart of one truck he has many other commercial trucks and the transaction between the parties is of commercial nature. It was further stated that loan agreement was duly executed by the complainant in which interest amount was mentioned as 11.23% P.A. and repayment of the loan through installments was duly reflected and accounted for in the statement of account which was maintained by opposite party No.2 as per normal banking norms and all entries were duly reflected but the loan account of the complainant is irregular as many installments are overdue and rate of interest was not of 2% P.A. and the same is 11.23% P.A. It was admitted that only 18 installments were paid by the complainant which were duly reflected in the statement of account. All other averments made in the complaint have been specifically denied and lastly prayed for dismissal of complaint with costs.

5.       To prove the case counsel for the complaint had filed affidavit of complainant Ex.CW-1 alongwith copies of documents Ex.C1 and Ex.C2.

6.       On the other hand counsel for the opposite party No.2 had filed affidavit of Atifa Jahan Ex.OP-2/A alongwith copies of documents Ex.OP-2/1 to Ex.OP-2/4.

7.       Rejoinder not filed by the counsel for the complainant.

8.       Written arguments not filed by the parties.

9.       We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.

10.     Counsel for the complainant has argued that complainant had availed loan from opposite party No.2 for purchasing of truck for earning his livelihood and the said loan amount was repayable in installments but there was dispute regarding installments received by the employee of opposite party No.2 which were not shown in the statement of account and opposite party is threatening to take possession of truck forcibly. It is further argued that rate of interest was 2% per annum.

11.     On the other hand counsel for the opposite party No.2 has argued that loan was sanctioned to the complainant as per loan agreement and the agreed rate of interest mentioned in the agreement was @ 11.23% per annum. It is further argued that complainant failed to pay the installments on stipulated dates and still amount of Rs.26,84,173.35/- towards installments and other charges is due and payable by the complainant. It is further argued by the counsel for the opposite party No.2 that this Commission has no jurisdiction to try and entertain the present complaint as per Section 11 of CPA, 1986. Complainant admits to have availed loan above than Rs.20 Lakh and as such this Commission has no jurisdiction as per CPA, 2019.

12.     We have heard the counsels for the parties and gone through the record. As far as the first objection of jurisdiction raised by the opposite party No.2 is concerned. Section 11 of CPA, 1986 provides for jurisdiction of District Commission is as under:-

          "Section 11.  Jurisdiction of the District Form/Commission.

          (1)     Subject to the other provisions of this Act, the District  Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if   any, claimed "does not exceed rupees twenty lakhs.

          (2)     A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,

          (a)     the opposite party or each of the opposite parties, where  there are more than one, at the time of the institution of the      complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

          (b)     any of the opposite parties, where there are more than  one, at the time of the institution of the complaint, actually and   voluntarily resides, or carries on business or has a branch  office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who does not reside, or carry on business or have a branchy office, or personally work for gain, as the case may be, acquiesce in such institution or

          ( c )    the cause of action, wholly or in part, arises."

As per above definition and from the perusal of file it has transpired that complaint against opposite party No.1 had already been dismissed vide order dated 07.01.2020 and opposite party No.2 is not having any office within the jurisdiction of this Commission. As such as per Section 11 of CPA, 1986, this Commission has no jurisdiction to entertain the present complaint as no cause of action wholly or partly arose at Gurdaspur.

13.     The second objection raised by the opposite party No.2 is regarding the pecuniary jurisdiction of this Commission. It is admitted fact that complainant had availed loan amount which is more than 20 Lakh and due amount is also more than 24 lakh and jurisdiction to entertain the complaint of this Commission as per Act, 1986 was upto 20 Lakh. As such this Commission has no pecuniary jurisdiction to entertain the present complaint.

14.     We have also relied upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi rendered in case titled as Ambrish Kumar Shukla & Ors. Versus Ferrous Infrastructure Pvt. Ltd. reported as 2016(4) Law Herald (SC) 2931 wherein it has held in para No.14 of the said judgment as under

          "Para 14. Reference order dated 11.08.2016 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 lacs, 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 lacs, the complaint would have to be filed befoee this Commission, the value of the services itself being more than Rs.1.00 crore".

As such we are of the view that this Commission is not having pecuniary jurisdiction to entertain the present complaint.

15.     The third objection by the opposite party No.2 is regarding the maintainability of the complaint is concerned. We are of the view that since the other two complaints which are similarly filed by the complainant bearing No.125 of 2019 and 127 of 2019 are also pending before this Commission which clearly shows that the complainant is running a transport company by hiring drivers and other staff and as such he cannot claim that he purchased the said truck for earning his livelihood. As such complaint does not fall in the definition of 'consumer' as envisaged in Section 2 (d) of the CPA, 1986. The counsel for the complainant has taken plea that since the CPA, 2019 has been passed and as such the jurisdiction should be as per new act but we are of the view that since the cause of action arose before 20.07.2020, as such the complaint has to be decided as per provisions of CPA, 1986 and not 2019.

16.     We have also relied upon the judgment of Hon'ble Supreme Court of India decided on 16.03.2021 in Civil Appeal Nos.3766-3767 of 2020 in case titled as Neena Aneja Vs. Jai Parkash Associates Ltd wherein in it is held as under

          "71.   For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the for a  corresponding to those under the Act of 1986 (the National Commission, State Commission and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the for a established under the Act of 2019. While allowing the appeals, we issue the following directions:

          (i)      The impugned judgment and order of NCDRC dated 30 July 2020 and the review order dated 5 October 2020, directing a previously instituted consumer case under the Act of 1986 to be filed before the appropriate forum in terms of the pecuniary limits set under the Act of 2019, shall stand set  aside

          (ii)     As a consequences of (i) above, the National Commission shall continue hearing the consumer case instituted by the appellants

          (iii)    All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the for a       corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019".

17.     From the above discussion and case laws cited above we are of the view that as per CPA, 1986, this Commission has no territorial, pecuniary jurisdiction to entertain and pass the final order. And the complainant being a transporter also does not fall with in the definition of consumer. As such the present complaint is dismissed. No order as to costs.

18.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

19.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.  

                               (Lalit Mohan Dogra)

                                                                       President  

Announced:                                          (B.S.Matharu)

Sept. 11, 2023                                               Member

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