Date of Filing : 06.11.2017
Date of Disposal: 12.09.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU.P.MURUGAN,M.Com.,ICWA(Inter)B.L., ....MEMBER-II
CC. No.45/2017
THIS MONDAY, THE 12th DAY OF SEPTEMBER 2022
Mr.Kokila Varman, S/o.Sundramoorthy,
No.22/2, Sippai lane 2nd Street,
Karayanchavadi,
Poonamallee, Chennai 600 056. ......Complainant.
//Vs//
The Manager,
Kotak Mahindra Prime Limited,
Ceebros Centre, 1st Floor,
New No.30, Old No.45,
Montieth Road, Egmore, Chennai -600 008. …..opposite party.
Counsel for the complainant : Mr.S.Muthukumaravel, Advocate.
Counsel for the opposite party : Mr.S.Sushilkumar, Advocate.
This complaint is coming before us on various dates and finally on 26.08.2022 in the presence of Mr.S.Muthukumaravel Advocate counsel for the complainant and Mr.S.Sushilkumar Advocate counsel for the opposite party and upon perusing the documents and evidences produced by both parties this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in the non issuance of Hire Purchase Clearance Certificate along with a prayer to direct the opposite party to refund a sum of Rs.7001/- paid in excessive amount collected from him and to refund the repair charges of Rs.1,30,000/- and for compensation of Rs.8,00,000/- along with Rs.15,000/- towards cost of the proceedings to the complainant.
Sum and substance of the complaint:-
It was the case of the complainant the he obtained loan from the opposite party namely KOTAK MAHINDRA PRIME LIMITED functioning at CEEBROS CENTRE, 1ST FLOOR, NEW NO.30, OLD NO.45 MONTIETH ROAD, EGMORE, CHENNAI -8 for purchase of a MARUTI SWIFT LXI car bearing registration No.TN.07 BD 9675 under instalments basis. The agreement was entered between them to repay the instalments in 36 months. The instalments were paid regularly until 17th instalment and after that there was some delay in payment. The opposite party demanded penal interest which was paid by the complainant without any fault. Further on 10.10.2016 and 10.11.2016 the instalments could not be paid in time due to demonetization, hence those instalments were paid on 27.07.2017, however no receipt was issued for the said payments. The instalments were completed and when requested for the Hire Purchase Clearance Certificate, the opposite party had informed that still there was a balance amount of Rs.25,000/- penal interest to be paid by the complainant. When questioned by the complainant there was no proper response by the opposite party. In 2016 flood the car got damaged and when informed to the opposite party they insisted to send the invoice for the repairs for reimbursement and the complainant sent the same along with one month instalment amount. However the opposite party failed to honour their promise. As Hire Purchase Clearance Certificate was not issued by the opposite party the complainant could not sell the vehicle and hence the complainant was put to severe hardship. Thus aggrieved the present complaint was filed to direct the opposite party to refund a sum of Rs.7001/- collected from him in excessive and to refund the repair charges of Rs.1,30,000/- and for compensation of Rs.8,00,000/- along with Rs.15,000/- towards cost of the proceedings to the complainant.
Defence of the opposite party:
The opposite party filed written version disputing the complaint allegations. A preliminary objection with regard to jurisdiction was raised by the opposite party stating that as the entire transaction took place at the opposite party’s jurisdiction at Egmore, the present complaint as filed before this commission was not maintainable. Further on merits it was contended that as it has been clearly mentioned that the penal charges would be collected for default in payment of EMIs as found in the contract entered between the parties, it was contended that the opposite party has every right to claim the penal charges for the defaulted instalments. The issue as to maintainability of the consumer complaint was also taken contending that as the issue involves rendition of accounts only a Civil Court having competent jurisdiction would be the proper Forum to resolve the issue on merits. It was alleged that the Place of Execution of Agreement as found in the agreement schedule –I was admitted by the complainant and the place was mentioned as Chennai and hence the claim of the complainant that the agreement was executed at Thiruvallur within the jurisdiction of this commission was against the clause of the Loan Agreement. The detail of the instalments was provided by the opposite party citing that there was 474 days delay in repayment. The schedule III to the loan agreement admitted, acknowledged and signed by the complainant and his Co-Applicant was follows;
“Delayed payment / Late Payment Charges / Compensation /Additional Finance Charges (monthly) – 3%”
Thus it was disputing that the contention of the complainant that there is no clause for penal charges was false. The issue raised by the complainant with regard to the demonetization was also disputed that as per the RBI Circular and the statement of the complainant for acceptance old Rs.500/- and Rs.1000/- notes was wrong and denied. The allegation of the complainant with regard to the reimbursement of the repair charges that had occurred for the service of the vehicle during flood was also denied. Thus contending that there was no cause of auction and there is no territorial jurisdiction for this commission, the opposite party prayed for dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A16 were marked on their side. On the side of opposite party proof affidavit was filed and documents Ex.B1 to Ex.B4 were marked.
Point for consideration:-
Whether this commission has the territorial jurisdiction to entertain the complaint?
Whether alleged deficiency in service on the part of the opposite party has been successfully proved by the complainant and if so to what reliefs the complainant is entitled?
Point No.1
On the side of the complainant following documents were filed in support of his allegations;
Agreement Schedule –I dated 19.02.2014 was marked as Ex.A1;
Cheque issued by the opposite party dated 19.02.2014 for a sum of Rs.2,95,370/- was marked as Ex.A2;
Statement of Account from 19.02.2014 to 07.03.2017 was marked as Ex.A3;
Legal notice issued by the opposite party dated 16.07.2015 was marked as Ex.A4;
Agency payment receipts were marked as Ex.A5;
Daily news paper front page dated 22.11.2016 was marked as Ex.A6;
Muthoot Finance Limited’s Customer copy dated 27.02.2017 was marked as Ex.A7;
Return cheque dated 27.02.2017 was marked as Ex.A8;
Statement was marked as Ex.A9;
Letter issued by the complainant to the opposite party requesting to give hire purchase cancelling certificate dated09.05.2017 was marked as Ex.A10;
Reminder sent by the complainant to the opposite party dated 05.06.2017 was marked as Ex.A11;
Statement of Account for the period of 13.07.2015 to 14.12.2015 was marked as Ex.A12;
Statement of Account for the period of 01.01.2016 to 15.06.2016 was marked as Ex.A13;
Cash bill issued by J.K. Auto Carriage dated 27.02.2017 was marked as Ex.A14;
Certificate of Registration was marked as Ex.A15;
Acknowledgement card issued by RTO, poonamallee was marked as Ex.A16;
On the side of opposite party the following documents were filed in support of their defence;
Loan Agreement dated 19.02.2014 was marked as Ex.B1;
Legal notice dated 16.07.2015 was marked as Ex.B2;
Statement of Account dated 15.12.2017 was marked as Ex.B3;
ECS authorization cum bankers certificate dated 06.02.2014 was marked as Ex.B4;
We heard the oral arguments adduced by both parties and perused the written arguments and evidences filed by them.
As the opposite party had taken preliminary objection with regard to the maintainability of the complaint on the ground of territorial jurisdiction, this commission feels proper to decide the said issue as the preliminary issue before going into the merits of the complaint. The complainant had stated in the complaint that his original residence as No.22/2, Sippai lane 2nd Street, Karayanchavadi, Poonamallee, Chennai 600 056 and the opposite party’s address as The Manager, Kotak Mahindra Prime Limited, Ceebros Centre, 1st Floor, New No.30, Old No.45, Montieth Road, Egmore, Chennai -600 008. Further as per the complaint averment in Para No.2 it has been mentioned that
“vjpu; kDjhuu; nfhlhf; kNfe;jpuh gpiuNtl; ypkpnll; vd;w ngaupy; igdhd;]; epjp epWtdk; fk;ngdp elj;jp tUfpwhu;. mtu; kDjhuiu ehb> Nkw;fz;l tpyhrj;jpy; xg;ge;jk; nra;J nfhs;sg;gl;L fhu; thq;f Ntz;b epjp toq;fpdhu;. Mifahy; ,g;Gfhu; ele;j rk;gtk; Nkw;gb tpyhrj;jpy; ele;Js;sJ. Mifahy; ,k;khtl;l ePjpkd;wj;jpy; jhf;fy; nra;a cs;sJ. NkYk; ,t;tof;F cupa fhyj;jpw;Fs; KiwaPL nra;J nfhs;sg;gLfpwJ.”
Hence even as per the complaint averment it was mentioned that the Agreement was executed at Chennai and the loan was disbursed at Chennai. As per section 11 of the Consumer Protection Act’ 1986 it has been clearly mentioned that the complaint shall be filed in the place where the opposite party resides or carries on business as found below:
“(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
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 2 [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 2[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 do not reside, or 2[ carry on business or have a branch 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 Ex.A1 document, the Loan Agreement produced by the complainant it is found that the date of Execution of Agreement was 19.02.2014 and the place of Execution of Agreement is at Chennai. Further the address of the concerned branch office has been mentioned as “Ceebros Centre, 1st Floor, New No.30, Old No.45, Montieth Road, Egmore, Chennai -600 008, Tamil Nadu – India”. According to the Consumer Protection Act, 1986 the complaint has to be filed in the commission having jurisdiction with respect to the residence or office of the opposite party. Only under the new Consumer Protection Act, 2019 a new clause under section 34 clause (d) has been added as the complainant’s residence or where he personally works for gain. Accordingly this commission has to come to the conclusion that only the consumer complaint at Chennai has jurisdiction to try the present complaint. Therefore, the present complaint filed before this commission at Thiruvallur could not be entertained by us for want of Territorial jurisdiction.
We find our view supported by the order passed in the Delhi State Consumer Disputes Redressal Commission in Colonel Rajeev Dalela Vs Tata Motors Finance Limited wherein the Supreme Court Judgement Sonic Surgical Vs National Insurance Company Limited was relied and the complaint was dismissed holding that even if the defaulted opposite party is having a branch office at the place where the complaint is filed, same could not be entertained. It was held, in Colonel Rajeev Dalela vs Tata Motors Finance Ltd. dated 30 July, 2021 by THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION,as "Sonic Surgical vs. National Insurance Company Ltd. reported at (2010) 1 SCC 135"
Learned Counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]
Thus we answer the point accordingly holding that the present complaint is not maintainable before this commission for lack of Territorial jurisdiction and hence liable to be dismissed.
Point No.2:
As we have held above that the complaint is not maintainable before this commission, we restrain ourselves from deciding the complaint on merits. In the facts and circumstances we hold that the complainant not entitled any reliefs. Thus we answer the point accordingly.
In the result the complaint is dimissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 12th day of September 2022.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 19.02.2014 Agreement Schedule –I Xerox
Ex.A2 19.02.2014 Cheque issued by the opposite party. Xerox
Ex.A3 ........... Statement of Account from 19.02.2014 to 07.03.2017. Xerox
Ex.A4 16.07.2015 Legal notice issued by the opposite party. Xerox
Ex.A5 .......... Agency payment receipts. Xerox
Ex.A6 22.11.2016 Daily news paper front page. Xerox
Ex.A7 ............ Muthoot Finance Limited’s Customer copy. Xerox
Ex.A8 ............. Return cheque. Xerox
Ex.A9 ........... Statement. Xerox
Ex.A10 09.05.2017 Letter issued by the complainant to the opposite party requesting to give hire purchase cancelling certificate. Xerox
Ex.A11 05.06.2017 Reminder sent by the complainant to the opposite party. Xerox
Ex.A12 23.07.2015 Statement of Account for the period of 13.07.2015 to 14.12.2015. Xerox
Ex.A13 08.02.2016 Statement of Account for the period of 01.01.2016 to 15.06.2016. Xerox
Ex.A14 27.02.2017 Cash bill issued by J.K. Auto Carriage. Xerox
Ex.A15 ........... Certificate of Registration. Xerox
Ex.A16 .......... Acknowledgement card. Xerox
List of documents filed by the opposite party:-
Ex.B1 19.02.2014 Loan Agreement. Xerox
Ex.B2 16.07.2015 Legal notice. Xerox
Ex.B3 15.12.2017 Statement of Account. Xerox
Ex.B4 06.02.2017 ECS Authorization cum Bankers Certificate. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
