DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No: 09/18.01.2008 Decided on : 20.02.2009 Sh.Hardev Singh S/o Sh. Naranjan Singh , resident of Ward No.2, Jakhal Road, Bareta, Tehsil Budhlada, District Mansa. ..... Complainant. VERSUS Magma Leasing Limited, Branch Office Bathinda through its Branch Accountant, Near Teen Koni, G.T.Road, Bathinda. .....Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Zanny Kath, Advocate, counsel for the complainant. Sh.Rovin Kumar, Advocate, counsel for Opposite Party. Before: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. ORDER: Sh.P.S.Dhanoa, President. Sh. Hardev Singh son of Sh. Naranjan Singh, resident of Mansa, has filed this complaint, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against Magma Leasing Limited, Branch Office Bathinda through its Branch Accountant posted at Bathinda, for seeking the possession of the truck and for award of compensation, in the sum of Rs.50,000/-, for mental and physical harassment. As per averments in the complaint, the complainant got financed his Tata LPT 1612/NA truck bearing Registration No.RJ19G7199 from the opposite party. The truck of the complainant is the only source of Contd........2 : 2 : his livelihood. The amount of the loan, was to be refunded, by the complainant, in installments which were being paid by him regularly as per agreement with the opposite party. The opposite party, has taken into custody, the truck of the complainant, on 22.9.2007, from Bareta but they did not serve any notice upon him before taking the possession of his vehicle. The complainant, has refunded a sum of Rs.1,17,000/-, out of the total loan amount of Rs.1,80,000/- and is ready and willing to make the payment, even in lump sum, as such, there is deficiency in service on the part of the opposite party and because of taking over the custody of his truck, the complainant, has been subjected to mental and physical harassment and he has suffered financial loss. He has been making requests to the opposite party, to deliver the possession of his truck since 22.9.2007, but he has failed to do so. Hence this complaint. 2. On being put to notice, opposite party filed written version, resisting the complaint, by taking preliminary objections; that intricate questions of law and facts are involved in the case, as such, proper remedy for the complainant, is to approach the civil court; that the complaint is not maintainable, because relationship between the parties is that of lender and borrower; that no cause of action, has accrued to the complainant, for filing the instant complaint; that this Forum, has got no territorial jurisdiction to entertain and try the complaint; that the vehicle, has been financed by the opposite party, for commercial purpose; that the complainant, has suppressed the material facts from the knowledge of this Forum and there is no deficiency in service on the part of the opposite party, as such, the complaint deserves dismissal with compensatory costs. On merits, it is admitted that the truck of the complainant, bearing Registration No. RJ19G7199, has been financed by the opposite party and, has been taken into custody, because of fault by him in repayment of the amount of installment. The complainant has failed to pay the second installment due on 1.7.2006, which he has deposited with a delay of 14 days. Even the said Contd........3 : 3 : installment, has been deposited by him, in the sum of Rs.9800/-, instead of Rs.10,698/-. It is submitted that offer, has been made for making the payment of the remaining amount of installment by the complainant only to prejudice the mind of this Forum and he, has failed to regularize his loan account despite notice served upon him through registered post prior to the date on which his vehicle was taken into custody, as per the terms and conditions of the loan agreement. It is submitted, that complainant was required to refund the amount of loan, in the sum of Rs.2,35,384/-, including interest at contractual rate in 23 equal installments, but on the date of taking over custody of the vehicle, an amount of Rs.47,976/- was outstanding towards him, as such, there is no deficiency in service on their part and he has filed the present complaint, to pressurise the opposite party, not to press for the payment of the remaining amount of loan and interest accrued as per contractual rate. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 3. On being called upon, by this Forum, to do so, the counsel for the complainant, tendered in evidence, his affidavit Ext.C-1, and copies of documents Ext.C-2 and C-3 before he closed evidence. On the other hand, learned counsel for the opposite party has tendered, affidavit of Sh.Rajiv Jindal, Legal Officer, Ext.OP-1 and copies of documents Ext.OP-2 to OP-7 and closed evidence. 4. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance. 5. At the outset, learned counsel for the opposite party Sh.Robin Kumar,Advocate, has submitted that a person securing loan from a financer for purchase of a vehicle, is not a consumer, within the purview of its definition given in the Act, as such, he cannot file the complaint in the Consumer Forum, if his vehicle is repossessed and sold by the financer in Contd........4 : 4 : case of default in payment of installment of loan. In support of his contentions, learned counsel, has placed reliance upon 2006(III) CPJ NC 247 Ram Deshlahara versus Magma Leasing Limited wherein the complainant got financed his vehicle purchased by him from the opposite party and agreed to refund the amount of loan in 30 installments alongwith interest, but he committed default in repayment and the post dated cheque issued by him was dishonoured after which his vehicle was seized by the opposite party and subsequently sold. It was held by the Hon'ble National Commission, that there is no deficiency in service on the part of the opposite party and no substance in the contention of the complainant that no amount was due from him and seizure of his vehicle by the opposite party was also unauthorized. Learned counsel, has also relied upon 2007(2)CPR 155 Tata Motors Limited & Anr. versus Sant Bahadur Singh & Anr. wherein it has been held by the Hon'ble M.P. State Commission, that financer does not render any service to the owner of the vehicle, as such, would not be a consumer, within the ambit of its definition given in the Act, because of which he cannot prosecute remedy before the Consumer Forum against the Financer for repossession of his vehicle in default of payment of installments of loan. 6. On the other hand, learned counsel for the complainant Sh. Zanny Kath, Advocate, has argued that the complainant is consumer, within its definition given in the Act and there is deficiency in service on the part of the opposite party, because he has seized and sold his vehicle without service of notice upon him, as such, complaint is maintainable before the Consumer Forum. Learned counsel has relied upon 2005(1) CPC 440 R.P.G.Itochu Finance Limited & Others versus Ramesh Chand and Anr. wherein appellants/Opposite parties seized the vehicle of the respondent/complainant after he paid 29 out of 30 installments of loan. It was held by the Hon'ble Delhi State Commission that appellant was rightly found guilty of deficiency in service by the Consumer Forum, as such, no Contd........5 : 5 : interference is warranted in the appeal. Learned counsel has further relied upon 2007(2) RCR Supreme Court 76 Manager, ICICI Bank Limited versus Parkash Kaur & Ors. wherein bank took the possession of the vehicle after the owner of the truck committed default in the repayment of the loan with the help of musclemen. It was held by the Hon'ble Apex Court that recovery of loan and seizure of vehicle can be done by the bank through legal means and they cannot employ goondas to take possession by force. 7. We do not find merit in the argument advanced by the learned counsel for the complainant in view of the proposition of law laid down in the authorities relied upon by the learned counsel for the opposite party. The ratio of judgment delivered in 2005(1) CPC 440 (Supra) cannot be preferred over the verdict delivered by the Hon'ble Supreme Court of India. There is no dispute as to the principle of law settled by the Hon'ble Apex Court in 2007(2) RCR Supreme Court 76 but that the verdict has been given in Criminal Appeal preferred by the bank against the order passed by the Hon'ble Allahabad High Court. There was no controversy in this regard regarding the maintainability of the complaint in the Consumer Forum. As such, ratio of judgment delivered in the said authority does not help the case of the complainant, so far as maintainability of the complaint for removal of the grievances against seizure and sale of his vehicle for default of payment of installments of loan, is concerned. 8. At the stage, learned counsel for the opposite party, has submitted that loan, has been advanced to the complainant, at Bathinda and opposite party has no branch office at Mansa, as such, this Forum, has also no territorial jurisdiction to entertain and try the complaint. Learned counsel also argued that intricate questions of law and facts are involved in this case, as such, it is proper if the parties are left to get their matter resolved from the civil court, because controversy cannot be adjudicated in summary manner by this Forum. Contd........6 : 6 : 9. On the other hand, learned counsel for the complainant, has submitted that vehicle of the complainant, has been taken into custody at Mansa and has drawn our attention to copies of documents placed on record by the opposite party showing that notice has been addressed to the complainant at his address at Bareta, District Mansa, for regularization of his account, as such, this Forum, has jurisdiction to entertain and try the complaint and cause of action has also accrued to him at Bareta, as such, complaint can be decided on merits by this Forum. At the same time, learned counsel has submitted that notice served by the opposite party before repossession of the vehicle has not been received by the complainant. 10. We find merit in the argument advanced by the learned counsel for the complainant. As per admitted facts the complainant, has secured loan from the opposite party, at Bareta in the sum of Rs.1,80,000/- which was to be refunded in installments at the same place. As per copy of the RC, Ext.OP-2, produced on record by the opposite party, the complainant is a resident of State of Rajasthan, as per his latest address given in the copy of the registered cover, but in the complaint, he has described himself to be a resident of Bareta, District Mansa. The opposite party, has also served him notice Ext.OP-5 before repossession of his vehicle on his address of Ward No.2, Mansa. Learned counsel for the complainant, has denied the receipt of that notice by the complainant. However the parties are also at issue regarding place of seizure of the vehicle of the complainant, by the opposite party. The plea of the complainant is that, his vehicle has been repossessed by the opposite party within the territorial jurisdiction of this Forum, but as per the case of the opposite party, it was seized by them at Faridkot. However, there is no cogent and convincing evidence to prove the place of seizure of the vehicle of the complainant by the opposite party, to enable this Forum to decide the controversy in summary manner. As such, in order to prove their Contd........7 : 7 : respective contentions, parties need to lead elaborate evidence. Therefore, in our considered opinion controversy can be resolved in just and proper manner only by the civil court after parties lead evidence to their satisfaction. 11. In the light of the our above discussion, we consider it prudent, not to make any observation, regarding merits of the controversy and leave the matter to be adjudicated, by the Civil Court, if approached by the complainant. The complainant may seek exclusion of time spent before this Forum, for the purpose of condonation of delay, as permissible, under Section 14 of the Indian Limitation Act, 1963. 12. For the aforesaid reasons, we dismiss the complaint and leave the complainant, to approach the Civil Court, if he so desires and advised. In the facts and circumstances of the case, parties shall bear their own costs. 13. The copies of the order be supplied to the parties free of charges under the rules, on the subject, and file be indexed and consigned to record. Pronounced: 20.10.2009 Sarat Chander, P.S.Dhanoa, Member. President.
