Quorum: Ms. Rekha Rani, President
Sh. Vikram Kumar Dabas, Member
ORDER
Ms. Rekha Rani, President
1. The instant complaint is filed under section 12 of the Consumer Protection Act as amended (in short the Act) pleading therein the following facts:
Complainant approached the ICICI Bank Ltd., (hereinafter called the OP) for grant an auto loan of Rs. 30,00,000/- (Rs. Thirty Lacs Only only) for buying a car.
OP agreed to advance auto loan of Rs. 30 Lacs to the complainant repayable with fixed interest @ 9.99% p.a. Complainant was given loan of Rs. 30 Lacs after deduction of advance EMI vide Car Loan A/c No. LADEL00025676925. The complainant was not shown any offer letter by the OP nor he signed the same. Subsequently, he was surprised when he received offer letter which indicated that OP was charging interest @ 10.99% p.a. instead of @ 9.99% p.a. which was against the mutual oral agreement between the parties. OP has adopted unfair and corrupt trade practice to cheat the complainant. OP threatened the complainant that it would put his name in the list of defaulters and get his vehicle auctioned and thus forced the complainant to liquidate the entire loan of the OP. Complainant requested the OP to issue pre payment letter in the month of September 2013. OP issued pre payment letter dated 10/09/2013. Complainant paid off balance amount of Rs. 23,32,687/- and was shocked to know that OP had charged Rs. 1,23,156.57 towards pre payment charges which is illegal being against RBI guidelines. Complainant served legal notice dated 26/10/2013 upon OP demanding refund of pre payment charges which claim was repudiated by OP vide its cryptic reply dated 18/11/2013. Hence, the instant complaint seeking direction to OP to refund pre payment charges of Rs. 1,23,156.57/-, refund of interest charged in excess of Rs. 47,500/- and Rs. 50,000/- as compensation for harassment and mental agony.
2. OP on receipt of notice appeared and filed reply. It is stated therein that complainant is bound by the terms and conditions of the loan agreement vide which he is bound to pay forclosure charges. It is also stated that the complaint is barred by limitation and that this Forum has no jurisdiction to adjudicate this complaint.
3. An amount of loan admittedly availed by the complainant was Rs. 30 Lacs which is beyond the pecuniary jurisdiction of this Forum as per section 11 (i) of the Act.
4. 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 compensation sought is to be seen for the purpose of pecuniary jurisdiction instead of value of deficiency.
5. 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.
6. 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.”
7. 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”.
8. In view of the aforesaid judgements referred above this Forum lacks pecuniary jurisdiction to take cognizance of the consumer dispute qua grant of an auto loan of Rs. 30, 00,000/- (Rs. Thirty Lacs Only).
9. 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.
10. 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 any stage of the 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 not be permitted to perpetuate 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. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).
In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v. K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.
Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, “it is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s. Parvathy Swaminathan & Sons, AIR 2008 SC 187).’’
- . In Reliance Consumer Finance Vs Randhir Singh First Appeal No. 431 of 2013 the Hon’ble SCDRC , Chandigarh vide order dated 24.12.2013 it was observed that it is settled principle of law, that the Consumer Fora, at any stage of the proceedings, is duty bound to decide of its own, the legal questions as to whether the complainant within the definition of a Consumer ; whether it had territorial and pecuniary jurisdiction to entertain and decide the complaint; whether the complaint involved the consumer dispute; and whether the consumer complaint was maintainable.
12. The complaint be accordingly returned to the complainant for presentation before the appropriate Forum. Certified copy of the same be retained on record. Copy of this order be sent to the parties as per law. File be consigned to record room.
Announced on this day of ___________, 2017.
