Chandigarh

DF-II

CC/272/2018

Balwinder Kaur - Complainant(s)

Versus

Kotak Mahindra Bank Pvt. Ltd., - Opp.Party(s)

In Person

17 Sep 2018

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,   U.T., CHANDIGARH

Consumer Complaint No.272/2018

Balwinder Kaur & Anr.  Vs. Kotak Mahindra Bank.

BEFORE:

HON’BLE MR.RAJAN DEWAN PRESIDENT                    HON’BLE MRS.PRITI MALHOTRA    MEMBER                    HON’BLE MR.RAVINDER SINGH      MEMBER

Present:        Complainant No.2 in person.                         Sh.H.S.Saini, Adv. for Opposite Party No.1

Dated : 17^th September, 2018

    

ORDER

 

         The complainant stated to have taken loan of Rs.20 lacs from Kotak Mahindra Bank Pvt. Ltd./Opposite Party for purchase of Truck bearing Regd. No.PB-12-T-7853 vide Loan Agreement dated 29.9.2014.  The complainant admittedly failed in payment of monthly installments of loan and consequent thereon, the OP bank took possession of the said vehicle, which remained in their possession from 14.5.2016 to 5.7.2016. The complainant has filed this complaint for grant of compensation of Rs.4 lacs against Opposite Party on account of forcible dispossession of Truck in question for the period ibid.

 

2]       The Opposite Party has filed application dated 30.8.2018 stating that the complainant has actually taken loan of Rs.20,49,161/- from OP Bank for purchase of the vehicle in question (Ann.R-7) for commercial purposes and as such, this District Consumer Disputes Redressal Forum lacks pecuniary jurisdiction to adjudicate this matter in view of the judgment of Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., CC No.97 of 2016, decided on 7.10.2016. 

     

3]       In reply to the application, the complainant has admitted to have received the loan amount of Rs.20,49,161/- for purchase of vehicle in question. The complainant has argued that keeping in view his claim for grant of compensation of Rs.4 lacs, the complaint is within the pecuniary jurisdiction of this Forum as envisaged under The Consumer Protection Act, 1986.

        

4]       After careful examination of the facts in issue and evidence on record, it has been observed:-

a]  That the complainant has suppressed material fact in the present complaint.  In the complaint, the complainant has stated to have got loan of Rs.20 lacs, however, in the reply to the application filed by the Opposite Party, he admitted to have got the loan of Rs.20,49,161/-  i.e. more than Rs.20 lacs, from the OP.

The complainant has not come to this Forum with clean hands and as such, not entitled for any equitable relief, as prayed for.    

         

b]  The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as  Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., CC No.97 of 2016, decided on 7.10.2016 in Para No.14 has held as under:-

“…………….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 before this Commission, the value of the services itself being more than Rs.1.00 crore.”

The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the judgment ibidi also held that:-

“It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.”

 

Obviously the loan amount is exceeding Rs.20 lacs i.e. the pecuniary jurisdiction of this Forum, hence the present complaint before this District Consumer Disputes Redressal Forum, Chandigarh is not maintainable as envisage under Section 11(1) of the Consumer Protection Act, 1986, which provided as under:-

11.  Jurisdiction of the District Forum.—(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]. 

         

The substantial issue regarding the loan amount of Rs.20,49,161/- has to be  kept in view while deciding the compensatory cost or compensation in lieu of any alleged lapse or fault on the part of Opposite Party.  The present complaint, as such, is beyond the pecuniary jurisdiction of this District Forum.

 

C]  The complainant earlier filed Civil Writ Petition No.19190 of 2016 – Balwinder Kaur and another vs. State of Punjab & Ors., before Hon’ble Punjab & Haryana High Court, on the same substantial facts as involved in the present complaint before this Forum.  The complainant should have claimed this relief, if any, regarding compensation in the said Writ Petition itself. Section 11 of Code of Civil Procedure provides:-

    “Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

 

    Explanation IV- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

 

The present complaint filed by the complainant is not maintainable on the principle of constructive res judicata. 

 

d]  The complainant took the loan of Rs.20,49,161/- for purchase of Commercial Vehicle, but did not pay the loan amount in terms of loan agreement.  The complainant cannot take benefit of his own lapse & laches.  

 

5]       Keeping in view the above facts, the application filed by the Opposite Parties dated 30.8.2018 is allowed and the complaint cases No.272/2018 & Compliant case No.447/2018, are hereby dismissed.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

17^th September, 2018                                                             Sd/-    

 (RAJAN DEWAN)

PRESIDENT

                                                                                               

Sd/-

                                                                     (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER