BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR
Complaint No…..896 of 2013.
Date of institution: 11.12.2013.
Date of decision: 13.3.2015
Mehtab Ali son of Saleem Khan resident of V.P.O. Amadalpur, Tehsil Jagadhri, Distt. Yamuna Nagar.
…Complainant.
Versus
- Kotak Mahindra Bank Limited, Kotak Infinity Building No.21, Infinity IT Park, Malad (East) Mumbai-400007, through its General Manager.
- Kotak Mahindra Bank Ltd. SCO 153-155, IInd Floor, Sector 9-C, Madhya Marg, Chandigarh through its Branch Manager.
…Opposite parties.
Complaint under section 12 of
the Consumer Protection Act.
CORAM: SH. A.K.SARDANA PRESIDENT,
SH. S.C.SHARMA, MEMBER.
Present: Sh. Vikram Singh Sheoran, Advocate, counsel for complainant.
Sh. K.K.Gupta, Advocate, counsel for OPs.
ORDER
Brief facts of the present complaint are that the complainant purchased a HTV truck bearing registration No. HR-58-A/1119 & got financed the same from OPs and used to deposit the amount of installments in his account lying with the Bank of Maharashtra, Jagadhri Road, Yamuna Nagar and the OPs used to receive the installments of loan from the said account of complainant as well as some times in cash through their agents vide receipts etc. It has been further alleged that the complainant due to financial crunches could not pay the installments of September & October 2013 in time and on 1.11.2013 when the truck duly loaded with goods was coming to Yamuna Nagar and was near Hisar, some employees of the OPs stopped the truck of complainant at Hisar and forcibly snatched the same from the possession of the complainant without any notice on the pretext that the complainant has not paid installments of loaned amount. The complainant on the next day approached OP No.2 and requested to receive the due installments and to handover the possession of truck to him so that further installments may also be paid to the OPs but the OP No.2 firstly put off the matter on false pretext and then flatly refused to accede the genuine request of complainant. Thereafter, the complainant deposited the installments for the month of September, October and November 2013 on 29.11.2013 alongwith Rs. 15,000/- as repossession charges and the OPs issued receipt of installments and possession charges totaling Rs. 1,06,000/- to the complainant and assured that the truck will be released on the next day. Thereafter, the complainant again approached to the OPs and requested to handover the truck in question as he has deposited the due installments and repossession charges but the OPs have flatly refused to handover the truck and threatened the complainant that if he did not deposit the entire loaned amount, they will put the truck for re-sale for which the OPs have no legal right, title or authority because the loaned amount is to be paid by the complainant to OPs in 60 monthly installments w.e.f. September 2012. The complainant is suffering a lot of mental agony, harassment, economical and social loss, as the truck in question is in illegal custody of the OPs since 1.11.2013 and the complainant has to pay the installments without plying the truck. The OPs have not handed over the possession of the truck to the complainant despite receiving due installments and repossession charges rather the OPs are pressuring the complainant to deposit the entire loaned amount without handing over the possession of truck to him and have thus committed deficiency and negligence in service and also played unfair trade practice. In the end, complainant has prayed for issuing a direction to the OPs to handover the possession of truck in question to the complainant immediately and not to raise any threat to recover the entire loaned amount illegally and forcibly and also prayed for directing the OPs to pay compensation as well as litigation expenses etc.
2. Upon notice, OPs appeared and filed their written statement wherein it has been urged that no cause of action has arisen at Yamuna Nagar because the loan was advanced to complainant at Chandigarh and the OPs are not having any branch office at Yamuna Nagar. So, the complainant must approach the appropriate court and the present complaint is thus liable to be dismissed on this score alone. Further, the complainant did not provide the new guarantor to the bank as per order of Hon’ble Forum dated 15.1.2014 and the cheque issued by guarantor in discharge of legal debt has been dishonoured due to reasons “insufficient funds and signature differ”. Besides it, OPs have also urged that the vehicle in question is used for commercial purpose and as per bare language enshrined in Consumer Protection Act, complainant is not a consumer and as such present complaint is liable to be dismissed. Further on merits, it has been submitted by the OPs that the complainant had been granted financial assistance to the tune of Rs. 8,24,000/- for purchase of truck, which was to be repaid by him in 36 EMI of Rs. 30,290/- each w.e.f.5.11.2012 to 5.10.2015 but he has been defaulter to make the payment of installments as per terms and conditions of the loan agreement and as such, the complainant himself surrendered the financed vehicle for the payment of due loan amount and the said vehicle was released in view of the interim order dated 15.1.2014 passed by the Hon’ble Forum but now the complainant is again taking undue benefit of said order and is not making payment of installments of the due loan amount. The complaint may kindly be dismissed being false & frivolous with costs in the interest of justice.
3. To prove his case, counsel for the complainant has tendered into evidence affidavit of complainant as Annexure CX & documents as Annexures C-1 to C-15 and closed evidence on his behalf whereas on the other hand, counsel for the OPs has tendered affidavit of Vikas Kumar Authorized Representative of Kotak Mahindra Bank Limited as Annexure RX & documents as Annexures R-1 to R-11 and closed evidence on their behalf.
5. We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file. Learned counsel for the OPs has raised the main objection that this Forum has no territorial jurisdiction to try and decide the present complaint as the complainant was advanced loan at Chandigarh as no branch office of the OPs is located at Yamuna Nagar. We have gone through the complaint, reply and documents submitted by both the parties minutely according to which neither the opposite parties are residing within the territorial jurisdiction of this Forum nor they have any branch office within the jurisdiction of this Forum nor the loan agreement was executed at Yamuna Nagar whereas the OPs against whom the complainant has grievances are carrying on their branches at Mumbai and Chandigarh within the territorial jurisdiction of D.C.D.R.F. Mumbai as well as D.C.D.R.F. Chandigarh respectively. Therefore, in light of the decision rendered by the Hon’ble Supreme Court of India in Civil Appeal No. 1560 of 2004 titled as Sonic Surgical Vs. National Insurance Company Ltd. reported in 2010(1) Consumer Law Today page 252, we hold that this Forum lacks territorial jurisdiction. Furthermore, the OPs have urged in their written statement/reply that complainant is not a consumer as per Consumer Protection Act since the vehicle in question is used for commercial purpose. On minutely going through the contents of complaint, we failed to find any word in the pleadings of the complaint that complainant purchased and plying the vehicle in question to earn his livelihood and thus we also hold that the complainant is not squarely covered in the definition of Consumer as enshrined in Consumer Protection Act and thus we have no option except to dismiss the present complaint. Besides this, as per order dated 15.1.2014 passed by this Forum, the complainant was directed to deposit one installment of Rs. 30,000/- and also to get the vehicle insured from the insurance company before the release of vehicle within 2 days but the complainant, in pursuance of order dated 15.1.2014 passed by the Forum, deposited an amount of Rs. 31,000/- on 2.5.2014 under the sub head “other receivable” as clear from statement of account marked as Annexure R-6. Hence the complainant has himself failed to comply with the order of this Forum dated 15.1.2014. As such, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.
Announced: 13.3.2015
(A.K.SARDANA)
PRESIDENT
(S.C.SHARMA)
MEMBER
