0. Date of Decision: 15.2.2007<br /> Amarjit Singh son of Shri Ranjit Singh, resident 714, Guru Hargobind Nagar, Phagwara. .....Complainant<br /> Versus<br /> 1.The Manager, Kotak Mahindra Primus Ltd. Hargobind Nagar Market,Phagwara.<br /> 2.The Manager, Kotak Mahindra Primus Ltd.Feroze Gandhi Market, Ldhiana.<br /> 3.Shri Rajesh Prashar Agent. Kotak Mahindra Primus Ltd. Hargobind Nagar Market,Phagwara. Opposite parties.<br /> Complaint under the Consumer Protection Act<br /> Before:Shri A.K.Sharma (President)<br /> Miss Sudha Sharma (Member)<br /> Present:Shri Sunil Chhabra counsel for the complainant<br /> Opposite party No.1 Ex-parte<br /> Shri V.K.Singla counsel for the opposite party No.2<br /> Shri P.S.Hanspal counsel for the opposite party No.3.<br /> JUDGMENT<br /> A.K.SHARMA,PRESIDENT<br /> Present complaint has been filed by A,marjit Singh complainant against opposite parties i.e.TheManager Kotak Mahindra Primus Ltd. Hargobind Nagar Market, Phagwara,The Manager, Kotak Mahindra Primus Ltd.Feroze Gandhi Market, Ludhiana, and Shri Rajesh Prashar Agent. Kotak Mahindra Primus Ltd. Hargobind Nagar Market,Phagwara for seeking direction against them to hand over the original papers of the vehicle including the Registration Certificate alongwith Monetary damages for harassment and mental tension on acccount <br /> -2-<br /> t of deficiency on their part.<br /> 2. The averments contained in the complaint are that complainant was approached by opposite party No.3 on behalf of opposite parties No.1 and 2 to finance the car which he proposed to purchase under the Hire Purchase agreement. He was financed for the said car bearing Temporary No. PB 10 AX-T-3817 on payment of Rs.67359/- as margin money on 13.1.2005 and delivery of the car had been given to him on the same day. It was also agreed that the loan amount would be payable by way of sixty monthly instalments of Rs.5800/- each but the opposite party No.3 got signed the cheque for Rs.5930/- on the ground that the opposite party No.2 will give a discount of Rs.6500/- out of his commission alongwith insurance. He also it made clear that the sale papers of the vehicle would be given to him within 15 days of the delivery of the vehicle i.e. from 13.1.2005.It is, therefore, alleged that he fell prey to the unfair trade practice of the opposite parties which being run by the opposite parties No. 1 and 2 through opposite party No.3 as he failed to deliver the Registration Certificate of the vehicle to him till date despite receipt of Rs.4000/- and repeated reminders on the part of the complainant has given no positive result. He met with an accident twice with the said vehicle, but could not get claim on account of non-production of registration papers which are still in the custody of the opposite parties. Therefore, the opposite parties are guilty of deficiency in service by wrongful retention of the registration papers and expenses of Rs.19200/- for repair of the vehicle in question to Jarnail Motors and further Rs.32000/- paid on 31.3.2005 at the time of two accidents respectively, for which the opposite parties are liable to pay compensation alongwith costs of litigation<br /> 3 None appeared on behalf of opposite party No.1 and was proceeded <br /> -3-<br /> exparte. However, opposite parties No.2 and 3 appeared through counsel. Opposite party No.2 raised preliminary objection that the present complaint is not maintainable as this Forum has no territorial jurisdiction to entertain this complaint. Moreover, the alleged dispute if any between the parties is liable to be referred to the arbitrator under the Arbitration clause in the agreement between the borrower and Koatak Mahindra Primus Ltd. Complaint is also bad for mis-joinder and non-joinder of parties because there is no branch of Kotak Mahindra Primus Ltd. at Phagwara. On the other hand the complainant has not impleaded the Company Kotak Mahindra Primus Ltd., Bombay as the per provision of law. The complainant has availed loan from Jalandhar Branch office and not from the opposite party No.2 which has been dragged into unnecessary litigation. On merits, it has been pleaded that the complainant got financed car from Jalandhar branch office of Kotak Mahindra Primus Ltd., but the company has no branch office at Phagwara. The car was not financed under the Hire Purchase Agreement but was under the loan agreement.It is also made clear that complainant got financed the car from Jalandhar Branch, Kotak Mahinder Primus Ltd. through Rajesh Prashar. However, said Rajesh Prashar is not employee/agent of the company and he is simply direct Marketing Associate (DME) of the Company. This fact is admitted that the complainant availed finance from the Jalandhar Branch of the company through opposite party No.3 by agreeing to repay the same in 60 equated monthly installments of Rs.5930/-each and also delivered duly filled cheques for Rs.5930/- each after agreeing to abide by all terms and conditions of the loan vide agreement duly executed between the complainant and the company. However, it was never agreed by opposite party No.2 that any amount of Rs.6500/- as discount and insurance would be given to the complainant and that sale bill would be given to the complainant within 15 days from the <br /> -4-<br /> delivery of the car and as per agreement, the complainant was also bound to give a copy of Registration Certificate to the Jalandhar Branch of the company aftergetting the vehicle duly registered with the Transport Authority. Moreover, opposite party No.2 has got no concern with the complainant or the finance availed by him or any matter between the complainant and opposite party No.3, since the complainant availed finance from Jalandhar Branch which has not been impeaded as party. The opposite party No.2 is not at fault if the car is met with accident twice or that he could not get claim on account of non-production of Registration Certificate. The opposite party No.2 had never asked the complainant to pay even a single penny to opposite party No.3, as such, there is no question of any deficiency in service on its part. The opposite party No.2 has got no knowledge or concern if Garryson Motors Pvt., has confirmed the delivery of documents vide dated 10.1.2006, but it is made clear that the opposite party No.2 has never been delivered the alleged documents and there is no question of delivery of the same to it. Since, the vehicle was not financed from opposite party No.2 , it is not bound to pay damages or any interest in case the claim is refused on account of non-supply of registration papers as alleged by the complainant. <br /> 4. Opposite party No.3 has also appeared and controverted the claim of the complainant by raising similar preliminary objections that this Forum has got no territorial jurisdiction to try and decide the present complaint as the entire loan transaction of Rs. 3,00,000/- was raised by the complainant from Kotak Mahindra Primus Ltd., Jalandhar for the purchase of the car and this loan amount was sanctioned and paid by the said branch of Kotak Mahindra primus Ltd. Jalandhar However, dispute is liable to be referred to the arbitration in terms of the agreement and, as such, the complaint is not maintainable. The complaint is bad for mis-joinder and non-joinder of necessary parties. It is, however, <br /> -5-<br /> pleaded that opposite party No.3 is a DMA of the Kotak Mahindra Primus Ltd and being DMA of Kotak Mahindra Primus Ltd., he got entered into finance agreement between the complainant and Kotak Mahindra and had not charged any amount from the complainant and as such, he is not a necessary party as the roll of DMA is over after the finance agreement is entered into by a borrower and the company and the loan amount is disbursed as per the terms of the agreement. On merits this fact is admitted that the complainant has approached the opposite party No.3 for obtaining loan to finance a car, but he has availed loan facility from Kotak Mahindra Branch offfice Jalandhar by way of finance under the loan agreement. He got executed the finance agreement and other documents between the complainant and the company and the roll of DMA (replying respondent) is over after the finance agreement is entered into by borrower and the company when the loan amount is disbursed in terms of the loan agreement. This fact is admitted that car was financed through opposite party No.3 on deposit of Rs.67359/- as margin money on 13.1.2005 and delivery of the car was made on the same day . The loan amount was to be repayable in 60 monthly installment. It is denied that it was agreed that loan amount would be returned in the sum of Rs.5880/- as one instalment. It is also denied that opposite party No.3 got signed the cheque for Rs.5930/- on the ground that he would give a discount of Rs.6500/- out of the commission alongwith the insurance. It is also denied the sale papers of the car were to be given within 15 days of the delivery of the car. However, it is pleaded that on 13.1.2005, the complainant approached opposite party No.3 and applied for finance of the car. Opposite party No.3 got executed the finance agreement between the complainant and the Kotak Mahindra Primus Ltd. Jalandhar and the Tata Indica car was delivered to the complainant on 13.1.2005 on deposit of Rs.67369/- as margin money. The complainant issued 60 equated <br /> -6-<br /> cheques of monthly installments of Rs.5930/- each duly filled and signed by him agreeing to abide by all terms and conditions of loan agreement executed between him and company. As per finance agreement he was bound to supply bank statements, cheques and other documents within one week from the delivery of the car. The car was delivered on 13.1.2005 and the complainant supplied the above documents on 18.3.2005.Due to delayed supply of above said documents, the company made the payment of Rs.2,88,140/- to the Dealer M/s. Garyson Motors Pvt. Ltd., Ludhiana on 24.3.2005. On 19.4.2005, the complainant deposited two instalments of Rs..11880/- with the said Dealer. In the month of February,2005, the price of the car increased to Rs.3,71,521/- and due to the fault of the complainant the payment was made to the Dealer on 24.3.2005. The difference of Rs.4152/- on account of increase in price was due towards the complainant. The complainant had not supplied the documents to the finance company within one week resulting in delay in payment to the Dealers M/s Garyson Motors Pvt. Ltd., and the Dealer has charged Rs.7500/- as interest due to the delay in payment. The amount of Rs.7500/- was paid by the opposite party No.3 from his pocket. The complainant has also not made the payment of Rs.4440/- on account of Registration Certificate Charges and opposite party No.3 deposited Rs.4440/-from his own pocket vide challan No.147779 dated 28,10,.2005 on account of Road Tax for getting the R.C. Issued. There is no Branch office of Kotak Mahindra Primus Ltd., at Phagewara and the complainant had not availed finance facility from opposite party No.3. Therefore, there is no question of any deficiency in service or unfair trade practice on the part of opposite party No.3. Therefore, he is not liable to pay any compensation as claimed by the complainant.<br /> 5. In support of his version complainant Amarjit Singh has produced into <br /> -7-<br /> evidence copy of letter dated 8/6/06 Ex.C1, cash receipt Ex.C2, legal notice Ex.C3, letter dated 28.3.2006 Ex.C4letter dated 22.3.2006 Ex.C5, Invoice of Jarnail Motors Ex.C6, cash bill dated 31.3.2006 Eex.C7, receipt Ex.C8, letter dated 9.3.2006 Ex.C9 and legal notice Ex.C10 and his own affidavit Ex.CA..<br /> 6. Opposite party No.2 tendered into evidence affidavit of Manish Jain Ex.R2A. Opposite party No.3 produced into evidence affidavit of Rajesh Prashar Ex.R1, copy of bill Ex.R2, Form No.21 Ex.R3copy of legal notice Ex.R4, postal receipts Ex.R5 and R6, copy of challan Ex.R7 and copy of application and agreement form executed by complainant in favour of opposite party Kotek Mahindra Ex.R8.<br /> 7. We have heard arguments of counsel for the parties and perused occular as well as documentary evidence and also gone through written arguments of both the parties. Learnerd counsel for the complainant has vehemently urged before us that opposite parties No.2 & 3 are squarely liable to hand over the registration certificate of the vehicle in question entitling him further to monetary compensation for deficiency in service on its part alongwith cost of litigation. He further urged that since the complainant was approached by opposite party No.3 representing himself to be the Agent of Kotak Mahindra Primus Ltd. Phagwara for financing his car and the transaction was struck at Phagwara on payment of margin money of Rs.67359/- on 13.1.2005, so the District Consumer Forum at Kapurthala has the territorial jurisdiction to try the present complaint. On the other hand it has been counterargued by learned counsel for the opposite parties No.2 and 3 that this Forum has no territorial jurisdiction to try and decide the present complaint as neither Kotak Mahindra Primus Ltd. has any branch office at Phagwara nor any cause of action or any part thereof has arisen within the territorial jurisdiction of this Forum. Moreover there is arbitration clause in <br /> -8-<br /> the agreement signed between borrower and Kotak Mahindra Primus Ltd. and dispute, if any, is liable to be referred to the Arbitrator in terms of the agreement. Complainant had not come to this Forum with clean hands and is guilty of suppressing true and material facts. It is further urged that there had been no loan transaction between the complainant and opposite parties No.2 & 3. Moreso; notice Ex.C4 indicates that it was addressed to New Delhi and Ex.C9 addressed to Kotak Mahindra Bank and not to opposite parties No.2 & 3. It has also been urged on behalf of opposite party No.3 that he is not employee of Kotak Mahindra Primus Ltd. He is simply DMA (Direct Marketing Associate) of opposite party. Complainant had availed loan facility from Kotak Mahindra Primus Ltd.branch at Jalandhar and being DMA he got executed financial agreement and other documents between the complainant and Kotak Mahindra Primus Ltd. and role of DMA is over after loan agreement is entered into between the borrower and the Company and loan amount is disbursed in terms of loan agreement.<br /> 8. We have considered the rival contentions of counsel for the parties. We are of the considered opinion that this Forum has no territorial jurisdictionto try and decide this complaint inasmuch as Kotak Mahindra Primus Ltd. has no branch office at Phagwara or at Kapurthala nor any cause of action or part thereof towards its loan transaction had ever taken place within the territorial jurisdiction of this Forum. Section 11 of the Consumer Protection Act 1986 confers jurisdiction of District Forum to entertain the complaints within local limits of whose jurisdiction (2a) opposite party or each of the opposite parties actually or voluntarily reside or carries on business or has a branch office or personally works for gain or where the permission of the District Forum has been granted or opposite party acquiece in such institution or cause of action wholly or in part arises. It is a settled law that cause of action is a bundle of facts which when <br /> -9-<br /> taken together with the law applicable gives aggrieved party a right to relief. This fact is not disputed that complainant got his car financed from Kotak Mahindra Primus Ltd. and car was delivered to him by Garyson Motors Pvt. Ltd. Ludhiana vide Ex.R2 and R3 after fulfilling the formalities as evidenced by loan application Ex.R8 with annexed documents. There is no dispute that opposite party No.3 Sh.Rajesh Prashar r/o Guru Hargobind Nagar Phagwara acted as DMA of Kotak Mahindra Primus Ltd.vide agreement dated 21.5.05 Ex.C1 to provide service to promote the financial business of the bank by providing clients for advancement of loan for different projects on some commission basis and set up his office at Phagwara as per photographs produced by the complainant . But there is not a single loan document produced by the complainant to establish that any part of cause of action regarding loan transaction of complainant with Kotak Mahindra Primus Ltd. has ever taken place at Phagwara or said Bank has any its branch at Phagwara through which agreement of loan transaction was executed between the parties. Mere assistence provided by DMA/agent of Kotak Mahindra bank to the complainant in execution of loan documents for getting financial loan from the bank on commission basis as per terms of agreement dated 21.5.05 Ex.C1 does not amount to carry on business or personally work for gain under Clause 2 (a) (b) nor does constitute any cause of action or any part does not constitute cause of action or any part of cause of action at Phagwara. <br /> 9. On the other hand documents Ex.R8 clearly indicates that loan was raised by the complainant and transaction was entered into by the complainant through Kotak Mahindra branch office at Jalandhar. as at page-8 addressed by the complainant wherein cheques were issued from IDBI Bank Phagwara by the complainant to the Manager, Kotak Mahindra Primus Ltd. Jalandhar and also signature verification document at page No.9 addressed to <br /> -10-<br /> The Manager, Kotak Mahuindra Primus Ltd. Jalandhar by IDBI Bank from Phagwara and further proposal generation agreement loading and disbursement at page 10 wherein Kotak Mahindra Branch is located and shown at Jalandhar though photocopy of the agreement dated 23/3/05 produced by the complainant leaves the location as blank in clause 31 of the agreement. Therefore, we find substance in the contention of learned counsel for opposite parties No.2 & 3 that this Forum has got no territorial jurisdiction under clause (c) of Section 11 (2)(a) of the Consumer Protection Act as no cause of action or part thereof has accrued within its territorial jurisdiction nor opposite party Kotak Mahindra Bank was proved to have carried on business at Phagwara through any its branch office. <br /> 10 Apropos the other contention of learned counsel for opposite parties No.2 & 3 for non- maintainability of the complaint on the basis of arbitration clause, we do not find merit therein in the light of Section 3 of the Consumer Protection Act 1986 because the provisions of the Act are in addition to and not in derogation to any other law for the time being in force. Therefore, the arbitration clause in the agreement does not non suit the complainant on this score.<br /> In the ultimate analysis of aforesaid discussion, we find lack of territorial jurisdiction of this Forum to try and decide this complaint. Therefore complaint is returned to the complainant for presentation to the proper Forum to seek his remedy. However the time spent by the c9omplainant in prosecuting this complaint in the wrong Forum bpnefidely shall not be counted towards the period of limitation so as to oust the complainant from other appropriate Forum/ Parties are left to bear their own costs.<br /> <br /> <br /> -11-<br /> Let certified copies of judgment rendered be supplied'despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced ( SUDHA SHARMA) ( A.K. SHARMA)<br /> 15.2.2007 Member President.