Complainant Rakesh Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the necessary directions may kindly be issued to the opposite parties to settle the loan account and to deduct the amount of Rs.9,10,070/- and also to deduct the amount of Rs.1,00,000/- being awarded by this Ld.Forum vide order dated 12.7.2016 from his loan account and to receive the remaining loan amount from him in installments and to issue No Due Certificate to him regarding the vehicle in question. Opposite parties be further directed to pay Rs.80,000/- as compensation on account of mental and physical harassment suffered by him alongwith litigation expenses, in the interest of justice.
2. The case of the complainants in brief is that he purchased TREX TLD-740S BACKHOE LOADER, FITTED WITH 1.00 CUM LDR BKT, 0.25CUM EX PKT, KIRLOSKAR ENGINE 76H.P WITH IND TYRES 7 STD FITMENTS, Model June 2013, bearing Machine No.3202/1320294, for the amount of Rs.20,00,000/- for earning livelihood for himself and for his family members by way of self employment and he has got financed the said Earth removal machine from the opposite parties for Rs.15,12,641/- out of Rs.20 lacs. He had started making payment of the installment of the financed amount to the opposite parties without any default. On 29.1.2015 at about 10 P.M. the Gunda elements of the opposite parties visited his house and has illegally and forcibly taken away the said vehicle and also caused injuries to him. Afterward, he started approaching the opposite parties for getting repossession of the vehicle in question and ultimately on 19.3.2015 he has made the payment of Rs.2,43,000/- to the opposite parties and the opposite parties has given the possession of the vehicle on 20.3.2015 and they have removed the original tyres of the Company. Shockingly, he found his machine in a busted condition. The opposite parties in connivance with each other have squeezed out all the lubricating hydraulic oil and new tyres of machine were replaced with old and burst tyres. The original battery of machine maker Exide was also replaced with old and dead country made battery. He immediately called the authorized officer/Incharge of the opposite party no.2 but he failed to give any cogent reply and fed him with a promise to look in the matter. Thereafter, he has filed Consumer Complaint bearing No.358 of 17.9.2015 and the same was partly allowed. He has next pleaded that at the time of finance of the vehicle in question by him from the opposite parties, the opposite parties had taken blank signed cheques from him as security cheques but earlier the opposite parties have falsely and fraudulently filled the said blank signed cheque and later on got dishonoured the same and filed false and frivolous complaint U/S 138 of the Negotiable Instrument Act against him. In the said complaint, he has put his appearance in the Court and got clear the picture before the Court, then he has got withdrawn the said complaint from the competent court. He has number of times approached to the opposite parties with the request to settle the Loan Account and deducted the amount of Rs.9,10,070/- and also to deduct the amount of Rs.1,00,000/- being awarded by this Ld.Fourm vide order dated 12.7.2016 and he is ready to pay the remaining amount of the opposite parties in installments but all in vain. The said act of opposite parties is unlawful and also amounts to unfair trade practice. Hence this complaint.
3. Notice of the complaint was served upon the opposite parties who appeared through their counsel and filed their written reply by taking the preliminary objections that complaint is not maintainable; the Hon’ble Forum has got no jurisdiction to entertain the present complaint; the complainant has failed to set out any deficiency in service or unfair trade practice on the part of the opposite party; the complainant has filed a false complaint by misstating the actual facts and has further mislead the Hon’ble Forum. The complainant had purchased one machine BACKHOE LOADER MODEL TLB-740S, Engine no.4H.32021320294 & Chassis no. TESC12AQ-05-D-7408023 and the same was financed with opposite party no.2 and the complainant failed to repay the installments of the vehicle in question as per the terms and conditions of the loan agreements and when the opposite party approached the complainant in respect of the defaulted amount, he surrendered his vehicle on 29.01.2015 and he stated that he will get the vehicle released after he pays the default amount at the time the vehicle was repossessed and inventory of items in the vehicle was prepared which was duly signed by the complainant and thereafter the vehicle was taken back by the complainant on 20.03.2015. It was further submitted that previous the complainant had filed similar false and frivolous complaint on the basis of the same facts in which this Ld.Forum has partly allowed his complaint and opposite parties were directed to pay Rs.1,00,000/- within 30 days from the receipt of orders, but the opposite parties preferred an appeal before the State Commission, Chandigarh vide No.A/630/2016 in which the Ld.Judge has pleased to grant stay order and next date of hearing was 11.07.2017 for arguments. The present complaint has been filed with same facts and as such the complaint of the complainant is barred under the provisions of resjudicata. On merits, the same objections and averments have been repeated while denying and rebutting all other allegations raised in the body of the complaint and prayed the complaint of the complainant is barred under the provisions of resjudicata.
4. Counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1 along with other documents Ex.C2 and Ex.C3 and closed his evidence.
5. Counsel for the opposite parties has tendered into evidence affidavit of Sh.Sukhveer Singh Ex.OP-1 closed the evidence on behalf of opposite parties.
6. We have thoroughly examined the available documentary evidence as produced on records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants in the back-drop of arguments as duly put forth by the respective learned counsels for the present contestants. We find that the present dispute has arisen on account of the OP financers’ seizure, repossession and release of the financed earth-moving vehicle and its subsequent settlement of loan-account amount measured against the levied costs charges and accrued interest etc seeking the specific and lone relief by way of directives to the opposite parties for one final settlement of accounts along with cost and compensation.
7. The complainant has somehow sufficiently succeeded in his attempt to prove his complaint-contented allegations vide the produced evidence through the documents exhibited here as: Ex.C1 to Ex.C3. We are also neither convinced nor in consonance with the defense pleadings and evidence as produced by the OP financer (as well as that not-produced: sanction & terms of prime loan etc); but we find that the subject matter of the complaint i.e., settlement of accounts along with the relief sought by way of declaratory directions to the OP financer (for settlement of loan related accounts) does not fall within the Consumer Act, its enacted delegated statutory authority/ jurisdictional purview to the consumer forum and thus we are not inclined to proceed ahead with our findings etc.
8. Finally, we find that the present complaint somehow lacks the statutory hue of consumer grievance/ adjudicatory merit and thus ORDER for its dismissal with no orders as to its costs. The complainant shall however be at liberty to seek any relief of his liking but in line with the legal remedy as available in law, per the available advice and choice.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
March 26, 2018 Member.
*MK*
