Complaint filed on: 22.04.2014

                                                      Disposed on: 18.01.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.720/2014

DATED THIS THE 18^th JANUARY OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainants: -                            

1. Dr.K.Venkata Rao,

Aged 66 years

S/o E.Krishnamurthy

2. V.Varalakshmi

Aged 65 years

W/o K.Venkata Rao

Both residing permanently at “Om Sri Sai Ram”

#449, 24^th Main, 8^th Cross

HSR First sector, Agara

Bengaluru-560102

By Inperson

V/s

Opposite parties:-    

1. Kotak Mahindra Prime Limited (KMPL in short)

Branch at #20, 3^rd Floor,

Uniworth Plaza,

Sankey Road,

Palace Guttahalli

Bengaluru-560020

By Adv. Sri.B.S.Radhanandan

2. M/s Rupee Zone

655, Tristar Complex,

Avinashi Road

Coimbatore-641037

3. Secretary to the Southern Area Local Board,

Reserve Bank of India

Fort Glacis, 16, Rajaji Salai

Chennai-600001

Opposite parties No.2 & 3

• Ex parte

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainants No.1 & 2/husband & wife, have been alleging the unfair trade practices and deficiency and negligence of services against the Opposite parties and have claimed the reliefs of:

1. declaration that car loan application and agreement are invalid and illegal
2. declaration that the demand letter dated 05.05.2014 for the loan closure is illegal and invalid
3. declaration that EMI of Rs.18,075/- collected by the Opposite parties No.1 is arbitrary and excessive
4. getting refund of excess payments with interest at 18%
5. and payment of compensation of Rs.50,000/-

2. The case of the Complainants in brief is that by virtue of Ex-A5 loan application dated 01.09.2011, joint agreement Ex-A6 dated 09.09.2011, they availed the car loan of Rs.5 lakhs repayable in 36 EMIs with interest at 10.05% and purchased the car No. TN 37-AV-4500. They repaid the loan amount under protest amounting to Rs.5,78,400 as supported by Ex-A7 schedule as on 01.05.2014 and had to pay further EMIs amount. They had to pay only Rs.5,73,286/-. Being aggrieved by the act of the Opposite party No.2 and Coimbatore branch of Opposite party No.1 they had filed CC.90/2012 which came to be partly allowed as per Ex-A8 order copy by the District Consumer Forum, Coimbatore of Tamilnadu. The procedure adopted in taking application, complying the terms therein and calculation of EMIs are all against the RBI circulars. On 05.05.2014 they received message Ex-A9 from Coimbatore branch of Opposite party No.1 about the foreclosure details on the basis of Ex-A9 and it is the new cause of action for wrong demand and hence this forum has got jurisdiction to try their case. Collection of Rs.5,562/- process fee, not executing their agreement on table, collection Rs.18,075/- EMI wrongly and taking their signatures on blank forms are all nothing but committing of unfair trade practices.

3. The Opposite party No.1 has filed the version questioning the maintainability of this complaint contending that this forum has no jurisdiction to try this complaint as the loan transaction/negotiation took place at Coimbatore and not at Bengaluru. Ex-A9 document is not the demand letter and it was issued at the request of the Complainants, accommodating them to pay the amount through Bengaluru branch and does not amount to new cause of action. There is no unfair trade practice and deficiency in their services as alleged. The earlier complaint Ex-A8 was decided on merits, considering the same allegations and now the second complaint becomes not maintainable. The Complainants have committed contempt of court and hence it becomes liable to be dismissed with exorbitant and exemplary damages for filing this complaint with malicious intention by abusing the process of law. The Complainants being the residents of Pollachi of Tamilnadu entered in to agreement at Coimbatore branch and by furnishing false address at Bengaluru, this case is filed.

4. The Complainants have filed the re-joinder, again defending their averments denying the defence and even by arguing their case with number of reported decisions.

          5. Both the Complainants jointly, in the single affidavit, filed their affidavit evidence and later the Complainant No.1 has offered additional affidavit to mark and say about all their produced documents marked as Ex-A1 to Ex-A21. The authorized signatory of Opposite party No.1 filed his affidavit evidence and relied on Ex-B1 to Ex-B8 documents. Written arguments and revised written arguments were filed by the Complainants. Opposite party No.1 has filed the written arguments. Arguments of the Complainants and counsel for the Opposite party No.1 were heard at length.

          6. The consumer disputes that arise for consideration are as follows:

1. Whether the complaint is not maintainable on the points of territorial jurisdiction and limitation and also as alleged by the Opposite party No.1 ?
2. Whether the Complainants establish the alleged unfair trade practice, deficiency and negligence against the Opposite parties in connection with their car loan transactions from 01.09.2011 till the date of this complaint ?
3. To what order the parties are entitled ?

7. Answers to the above consumer disputes are as under:

1) Affirmative

2) Does not survive for consideration

3) As per final order – for the following      

REASONS

          8. The undisputed facts reveal that the Complainant No.1 is the husband of Complainant No.2 and working as Professor in engineering college. Both the Complainants No.1 & 2 submitted Ex-B1/Ex-A5 and Ex-B2 loan application forms both dated 05.09.2011 to the Coimbatore branch of Opposite party No.1 and availed the vehicle loan of Rs.5 lakhs to purchase Toyoto Corolla car no. TN 37-AV-4500 shown in Ex-A14 R.C.copy by executing the loan agreement Ex-B3/Ex-A6 and Ex-A7 annexed schedule about the payments of EMI dated 09.09.2011. The said loan was sanctioned and released as per Ex-A4 in favour of earlier financier T.S.Mahalingam and Sons.

          9. It is also undisputed that they had filed CC.90/2012 and got the order dated 22.04.2013 in the District Consumer Forum Coimbatore against the Opposite party No.2 and Coimbatore branch of Opposite party No.1 as per the order copy Ex-A8. It was based on the complaint as per Ex-B8 and version of Coimbatore branch as per Ex-B7/A18, case papers Ex-A19 to Ex-A21. The said order as per Ex-A8 was allowed partly, which made the Opposite party No.2 to pay Rs.25,000/- towards compensation with litigation charges of Rs.1,000/-. It was in response to his prayer for refund of Rs.68,121/- collected without receipts, and for  compensation of Rs.10,000/- towards deficiency, negligence and unfair trade practice of the Opposite parties and Rs.50,000/- for not delivering the original RC book to them, with permission to repay the balance loan amount in lump sum with minimum interest.

          10. Consumer Dispute No.1: It is also undisputed that treating Ex-A9 e-mail message dated 05.05.2014 as fresh cause of action they filed this complaint against Opposite party No.2, Opposite party No.1 Bengaluru branch, impleading  the Opposite party No.3/RBI office also. In connection with the Opposite party No.3 they produced only Ex-A3, the copy of the guidelines dated 12.11.2010.

          11. Section 24A of CP Act provides 2 years time from the date of cause of action to file the complaint, as observed in 2008 (4) CPJ 200. In this case the Ex-A9 shows that Coimbatore branch of Opposite party No.1 through e-mail dated 05.05.2014 in response to his (Complainant No.1) request as per Ex-A11 dated 28.04.2014 informed that since per day interest gets calculated, the amount keeps changing on the daily basis, he has to confirm the exact amount and then only he can make payments at their Bengaluru branch and has shown Rs.69,629.82 as outstanding on that day, with prepayment interest (5.21% on principal outstanding + service tax) Rs.4076.02, revenue for broken period 136.84, overdue interest 53.48 and thereby showing the total amount payable by him as Rs.73,893.16 with the reminder that next EMI date becomes 01.06.2014.  It is also informed through Ex-A9 that in case of foreclosure by him, he has to send the request letter, copies of R.C. book and PAN card to the Bengaluru branch.

12. Ex-A9 do not show any cause of action. The cause of action means the bundle of facts. The fact that has been given raise to action against the Opposite party. The cause of action is to be identified on the basis of the reliefs claimed to know the right and infringement of that right between the parties. Through Ex-A9, the Complainants have not obtained any right nor the branches of Opposite party No.1 have not infringed any such alleged right. It cannot be stated that through Ex-A9 the right was accrued in favour of the Complainants so as to question the main documents namely Ex-B1 & B2/loan applications, Ex-B3/Ex-A7 loan agreements which are all executed in September 2011 or to question the EMI amount as per annexures to loan agreements, which were already paid since then. It was the letter taken by Complainants after disposal of CC.90/2012 intimating his wish of foreclosing of his car loan account. There is no cause of action as alleged by the Complainants. In the absence of fresh cause of action the limitation period which started from October 2011 about the contents of the loan agreement ends with in 2 years.  But this second complaint is filed on 22.04.2014 and thereby barred by law of limitation.

          13. The car loan applications and agreement of September 2011 and other main documents of the car loan transactions were already dealt in Ex-A8 judgment of Consumer Court, Coimbatore on 22.04.2013. The said documents numbered as A3, A9 namely car loan applications and loan agreement in earlier case are again marked as Ex-A5 & Ex-A6 in this case. The Opposite party has also furnished the copies of version of its Coimbatore branch/Ex-B7 and the earlier complaint Ex-B8 to contend that same set of documents relating to same car loan transactions has already been agitated earlier by the Complainants seeking refund of Rs.6,812/- collected on various accounts with total compensation amount of Rs.10,000/- + Rs.50,000/-.

          14. The perusal of the pleadings of both the earlier case and the present case of the Complainants disclose that the Complainants instead of filing the complaint to offer grounds for final decision upon the subjects in dispute and to prevent further litigation, have tried to multiply the litigation on one or the other alleged left out points. It may be because of partial decree order held in their favour. The earlier case was not the case disposed for non-prosecution or default without considering the pleadings therein. It is not the case of the Complainants that the alleged dispute in the present case is the subsequent development after the disposal of the first case. Hence this second complaint cannot be entertained as observed in 2000(3) SCC 242 wherein the first complaint came to be dismissed in default and was not restored. The facts and circumstances of this case show, as contended by the Opposite party No.1, that the Complainants in order to fill up their earlier alleged omitted rights filed this complaint which is legally not maintainable and becomes abuse of process of law as observed in 2013 (3) CPJ 304 NOC which reads as here under:

                   The commission observed that if there was defect in the first complaint, amendment application should have been moved or permission could have been sought or request could have been made to have liberty to file fresh complaint. It was not possible to give permission to fill-up lacuna at this stage.

                   7. It is very clear from the above facts that the orders passed by the Fora a below suffer from a major irregularity as they have dealt with the second complaint which was legally not maintainable. In view of these circumstances, there is no need to go into the other aspects of the case and the present complaint deserves to be dismissed on this ground alone. 

15. The order Ex-A8 dated 22.04.2013 did not consider the prayer no.4 therein and thereby the Complainants had to pay the remaining EMIs, in the absence of preferring appeal thereon. The said prayer no.4 of Ex-A8 final order again became the subject matter and main prayer in this case, which cannot be allowed to reagitate in this Consumer Forum. Instead of making payments in EMI, it appears the Complainants wrote the letter/e-mail to the Coimbatore branch of Opposite party No.1 about their liability to discharge with another privilege of discharging it through Opposite party No.1 branch. This enquiry and permission will not change the jurisdiction as observed in 2010(1) CPJ 83 which reads as here under:

Mere receipt of request for change of address is not sufficient to make policy applicable to changed premises till then no risk assumed in respect of new location.

16. The Complainants relying on Ex-A9 have contended that new cause of action arises at Bengaluru, on the illegal and wrongful demand by the Opposite party No.1 towards pre closure of the car loan account. They have relied on their request letter which made Opposite party to respond as per Ex-A9 to say that because of the said transaction, cause of action arose partly at Bengaluru. As observed in IV (2009) CPJ (40) SC, the expression “branch office” in sec.17(2) would mean the branch office where the cause of action arisen and filing of the complaint anywhere in India on the ground that branch office is situated therein will lead to absurd consequences. The alleged cause of action or part of it did not arise at Bengaluru. Hence Ex-A10/the order in FA 502/2014 of National Commission passed in his favour cannot be made applicable to this case, as the part of cause of action held at Trivandrum was considered as the extended jurisdictional place. In the instant case no cause of action arose and as per his letter Ex-A11, mere wish to visit Bengaluru office to foreclose the car loan account and reply as per Ex-A9 thereon, do not extend the jurisdiction to Bengaluru. In Ex-A8 the District Consumer Forum, Coimbatore had dealt about the prayer no.4 of the Complainants, that they may be permitted to repay the car loan balance in single instalment with the minimum interest rate applicable elsewhere, without imposing any additional charges for foreclosure.

17. Mere expression intention of making payments towards their liabilities through any convenient places or method does not take away the power of deciding the jurisdiction, as against the ingredients of section 11 of CP Act. The Complainants have not established any transactions which amounts cause of action towards the loan agreement and applications at Bengaluru, atleast to say any part of cause of action arose at Bengaluru. Hence this Consumer forum gets no jurisdiction to try the dispute of this complaint.

18. The Complainants have made allegations that the Opposite parties have not filled up the application and the agreement nor executed the agreement on table in presence of both the parties therein. All these allegations made after the disposal of the first complaint are out of the scope of this Forum on various grounds also as stated in the above paras. The Complainant no.1 who advanced his arguments at length, personally relying on his revised written arguments, number of authorities had all the opportunity to urge in the proceedings of the first complaint itself and now he cannot reopen the determined disputes to avoid his liability or to go against the law by misconstruing the provisions.

19. His contentions that the new cause of action arose through letter 05.05.2014 at Bengaluru, some of the observations in the first complaint are based on misrepresentation, the further observations there in gives inference of collusion of both the Opposite parties cannot be accepted and have no force either in law or on facts.

20. The Complainant No.1 has the same documents marked with different exhibits in both the cases and contends that this Forum has full of discredited facts to go against the Opposite parties for not complying the RBI directions and he repaid the amount under protest. Those contentions show that as observed in the above referred decisions 2013 (3) CPJ 304 NOC has tried his level best to fill up the alleged lacuna at this stage without furnishing iota of evidence for alleged protest payment and hence the said contention also become untenable. His arguments that the proceedings of Coimbatore Consumer forum in earlier case is wrong at the very face of the records, facts & law, show that his intention is to get the trial of the same facts for the second time after they were decided on merits and such attempts cannot be entertained by court of law. The protest payment was not the ground in earlier case but became invented ground in this case.  He has tried to find fault with the process of earlier judgment without preferring appeal and such attempts definitely amounts to abuse and misuse of process of law. Considering his prayer no.4 in the earlier case and main prayer no.3 of this case as different, as contended by the Complainants also becomes untenable, as the same set of loan documents of 2011 become the subject matter of trial. Merely because there are reported judgments that court can decide and set aside the decree if it was vitiated by fraud cannot be made applicable to this case based on further untenable arguments of the Complainants. This Forum has no such power to question the earlier judgment.

21. There is no reason to enquire in to his present or past addresses when the cause of action as established is only at Coimbatore. The Complainants though had sought relief about the calculation of EMI amount on the loan agreement of September 2011 has exceeded their limits of finding fault with the earlier judgment and argued to get the order to discard the said judgment partially which is not in their favour. It shows that the Complainants have not come to the Forum with clean hands and not with bonafide reasons. Hence the Consumer Dispute No.1 is answered in affirmative.

22. Consumer Dispute No.2: In view of the observations and findings of Consumer Dispute No.1, the Consumer Dispute No.2 does not survive for consideration.

23. Consumer Dispute No.3: In view of the finding of the Consumer Dispute No.1 & 2 the Complainants deserve to get not only the dismissal order but because of such efforts which amounts to abuse of process of law they have to pay the cost for unnecessarily filing this second case. Accordingly they deserve to get the following:

 ORDER

          The Complaint of the Complainants is here by dismissed with costs of Rs.15,000/- payable to contesting Opposite party No.1.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 18th day of January 2017).

Documents marked on behalf of Complainants:

Documents produced on behalf of Opposite party No.1