Delhi

StateCommission

FA/874/2013

ASHPAK ALI - Complainant(s)

Versus

MAHINDRA & MAHINDRA FINANCE SERVICE LTD. - Opp.Party(s)

11 Jan 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:11.01.2018

 

First Appeal- 874/2013

(Arising out of the order dated 10.07.2013 passed in Complainant Case No. 73/2012 by the District Consumer Disputes Redressal Forum (North East), Nand Nagri, Delhi)

 

Shri Ashpak Ali,

S/o Shri Hakimuddin,

Village Asalatpur,

Farukhnagar,

P.S. Sahibabad,

Ghaziabad, UP.

…..Appellant

 

Versus

Mahindra & Mahindra Financial Services Ltd.,

4^th Floor, Mahindra Towers,

Dr. G.M. Bhosale Marg,

P.K. Kurne Chowk, Worli,

Mumbai-400018.

 

Mahindra & Mahindra Financial Services Ltd.,

226 & 228, Second Floor, Ansal Chambers-II,

Bhikaji Cama Palace,

New Delhi-110066.

 

Shri Chandan Dwivedi,

Authorized Representative,

M/s. Mahindra & Mahindra Financial Service Ltd,

Plot No.2, 2^nd Floor,

Sikka Plaza 2, LSC,

Mayur Vihar, Phase 1,

Delhi.

.….Respondent

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

 1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

Justice Veena Birbal, President

 

1.                This is an appeal wherein challenge is made to order dated 10.7.13 passed by the Consumer Disputes Redressal Forum (North East), Nand Nagri, Delhi (in short, the “District Forum”) in Complaint Case No.73/2012 whereby the aforesaid complaint has been dismissed.

2.                A complaint under Section 12 of the Act was filed by the appellant herein i.e. complainant before the District Forum alleging therein that in the month of October, 2007 the appellant/complainant had taken a vehicle loan of Rs.2,80,000/- from respondent/OP for purchase of vehicle No.UP 14 AN 6648 and the loan amount was payable in 48 EMI’s for Rs.7,995 each.  The appellant/complainant had alleged that he was always ready and prompt in redeeming the loan as per terms of contract and there was no dispute with regard to repayment of aforesaid amount to respondent/OP.  It was alleged that the respondent/OP in order to make illegal gains had always been raising dispute with regard to repayment of loan.  It was alleged that on 1.1.11, appellant/complainant had given a cheque of Rs.24,000/- bearing No.7579 towards repayment of loan but same was never presented by respondent/OP for encashment.  It was alleged that the respondent/OP despite having taken more than principal amount due from the appellant/complainant had sent a legal notice dated 12.2.09 whereby the loan agreement was terminated and a demand of Rs.2,29,526/- was made.  On receiving the said notice, the appellant/complainant met the officials of the respondent/OP and was informed that as per loan statement account, the net amount outstanding on appellant/complainant was Rs.1,09,800/- including future balance and the appellant/complainant had paid Rs.2,73,960/-.  It was alleged that same was orally informed.  Another legal notice was received by the appellant/complainant dated 10.3.10 asking him to pay Rs.1,69,564/- without considering his representation.  It was alleged that appellant/complainant wanted to settle the matter in full and final and requested respondent/OP to accept the balance payment.  However, the respondent/OP demanded Rs.2,29,526/- and the matter was not settled and rather the respondent/OP referred the matter to sole Arbitrator at Mumbai wherein without giving any notice to appellant/complainant, the Arbitrator had passed an award  dated 22.6.10 directing the appellant/complainant to pay Rs.1,74,967/- with interest and Rs.10,000/- as cost of arbitration proceedings.  It was also stated that the respondent/OP had obtained an order dated 05.10.2010 from the Court of Ld. DJ-III-cum 1/C ASJ (West), Delhi under Section 9 of the Arbitration and Conciliation Act whereby receiver was appointed for taking possession of the vehicle.  It was stated that pursuant to the aforesaid order, the vehicle was also repossessed by respondent/OP with police aid on 24.2.11.

4.                It was stated that on 24.2.11 appellant/complainant again approached respondent/OP for obtaining a loan statement account and for settlement of his account but nothing was done.  It was alleged that the respondent/OP had indulged in unfair trade practice and as such direction was sought from the District Forum directing the respondent/OP to return the possession of the vehicle in question and to pay Rs.2 lacs to the appellant/complainant for causing harassment to him and Rs.25,000/- towards litigation cost.

5.                The aforesaid complaint was contested by the respondent/OP by filing written statement wherein it was stated that it is an admitted case of appellant/complainant himself that he committed defaults in repayment of loan facility availed by him as such he was not entitle for any relief.  The respondent/OP also admitted having filed the arbitration proceedings against appellant/complainant and obtaining the order under Section 9 of the Arbitration and Conciliation Act as was alleged in the complaint.  It was also alleged that the vehicle in question was sold at the best available price.  It was alleged that since the appellant/complainant was not paying the instalments regularly and there was outstanding dues as such the necessary proceedings were initiated against him          

6.                Both the parties filed evidence by way of affidavits before the District Forum. 

7.                Ld. District Forum on the basis of statement filed by appellant/complainant on 14.3.13 held that since appellant/complainant himself had stated that he had to pay the outstanding amount of Rs.93,790/-, it did not lie in his mouth that he had paid entire amount along with interest.  Accordingly the complaint was dismissed.

8.                Aggrieved with the aforesaid order, present appeal is filed.     

9.                Ld. Counsel for the appellant/complainant has contended that the evidence by way of affidavit of respondent/OP ought not have been taken on record by the Ld. District Forum.  It is contended that the copy of the same was not supplied to appellant/complainant.  It is contended that impugned order was passed on the basis of false affidavit of Shri Chandan Dewivedi, an official of respondent/OP.  It is contended that the Ld. District Forum has arbitrarily passed the impugned order as such the same is liable to be set aside.  

9.                No one appeared on behalf of respondent/OP to contest the present appeal.  Ld. Counsel for respondent/OP had appeared only on 30.4.14 & 22.9.14 and thereafter none appeared for respondent/OP despite the appeal being listed for hearing on number of dates.  Accordingly, we have heard Counsel for the appellant/complainant and perused the material on record including District Forum record.

10.              Perusal of District Forum record shows that evidence by way of affidavit of respondent/OP was taken on record by the Ld. District Forum vide its order dated 29.4.13.  By that time, Counsel for appellant/complainant had already left as such copy of the same was given to the appellant/complainant on next date i.e. on 9.5.13.  Appellant/complainant is wrong in contending that the copy of evidence was not supplied to him.  Thereafter the matter was adjourned for 3-4 days.  No such objection was taken before the District Forum by the appellant/complainant for not having received the copy of evidence of respondent/OP.  Further the Ld. District Forum has disposed of the complaint by relying on the statement of account placed on record by the appellant/complainant that still he had to pay loan amount to the respondent/OP.  The relevant portion of the finding is as under:

“We do not agree with the submission made on behalf of the complainant.  In his statement filed on 14.03.13 the complainant himself has stated that the net amount payable to the opposite party by the complainant is Rs.1,09,790/- minus Rs.16,000/- which comes to Rs.93,790/-.  Thus, when the case of the complainant himself on 14.03.13 is that he was to pay an amount of Rs.93,790/- as the date of filing of the complaint, then how could it lie in his mouth to say that he had paid the entire loan amount along with the interest to the opposite party and that the opposite party had mischievously got possession of the vehicle in question and sold the vehicle in question for some ulterior motives.

 

Therefore, in our judgement, since as per the case of the complainant himself he was in arrears of loan amount on the date of filing of the complaint no cause of action arose in his favour to file the present complaint against the opposite party.”

 

11.              The findings given by the District Forum are based on the material on record.  There is nothing on record that the complaint has been disposed of in arbitrary manner as has been alleged. The appellant/complainant himself has admitted in the complaint that the statement of loan account was showing a balance of Rs.1,09,800/- and he had requested the bank to settle the loan.  Further prior to filing of the complaint case before the District Forum, the dispute between the parties pertaining to loan account had already been referred to Arbitration as is submitted by appellant/complainant and the award was passed on 22.6.10.  The said award has not been challenged by the appellant/complainant and has attained finality.  Further the vehicle was also seized by the respondent/OP on getting the order from the Court of DJ-III-cum 1/C ASJ (West), Delhi as has been noted above.  The said order was not challenged by the appellant/complainant.  In the facts and circumstances of the case, we find no illegality in the impugned order.

12.              Appeal stands dismissed.

 

 

 

 

13.              A copy of the order be sent to the parties as well as to Ld. District Forum for necessary information. Record of the District Forum be also sent back forth.  Thereafter, file be consigned to record room.

         

 

 (Justice Veena Birbal)​

President

 

 

 

(Salma Noor)

Member