Chandigarh

DF-I

CC/775/2015

Lakhvir Singh - Complainant(s)

Versus

Mahindra & Mahindra Financial Services Limited - Opp.Party(s)

Parminder Singh Rai Adv.

19 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

 

                               

Consumer Complaint No.	:	CC/775/2015
Date of Institution	:	19/11/2015
Date of Decision	:	19/01/2017

 

 

Lakhvir Singh son of Lachman Singh resident of H.No.26 Village Madanpura, Phase -2, Tehsil and District SAS Nagar, Mohali.

…..Complainant

V E R S U S

Mahindra & Mahindra Financial Services Limited, A company incorporated under the Companies Act, 1956 having its office at Gateway Building, Apollo Bunder, Mumbai – 400001 and regional office at SCO No.34-35, Sector 34-A, Chandigarh through Jai Narain, Litigation Officer cum – duly authorised representative of the company.

……Opposite Party

 

CORAM :	S.S. PANESAR	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                                       

ARGUED BY	:	Sh. Parminder Singh Rai, Counsel for complainant
	:	Sh. Varun Bhardwaj, Counsel for OP

 

Per S.S. Panesar, President

1.         The facts, in brief, are that the complainant purchased a Maruti Alto LX in the year 2006 from Berkeley Automobiles Private Limited, Chandigarh bearing registration No.PB-65-E-6767 on down payment of Rs.30,000/- approximately.  The actual cost of the car was Rs.2,72,412/-. Thereafter he entered into an agreement with the OP for finance of the car and loan amounting to Rs.2,57,230/- was financed by the OP on 29.9.2006.  The total agreement value which had to be paid by the complainant was Rs.3,49,080/- and the first installment of Rs.5,818/- was paid by him on 29.9.2006. The said agreement was to mature on 28.9.2011 in 60 installments of Rs.5,818/- each. In the year 2010, due to some personal difficulties, the complainant felt that he could not bear the burden of instalments which were to be paid by him. With mutual understanding between the complainant and the OP, a settlement took place.  Accordingly on 29.7.2010 the representatives of the OP came to the business place of the complainant where all the formalities regarding settlement of loan account were completed and he paid Rs.1,25,000/- to the OP.  The OP issued a clearance certificate as well as receipt for the said amount. The complainant being not so educationally qualified, felt satisfied after settlement of the loan amount.  However, in the month of March, 2014, the complainant received summons from the court of learned Additional District Judge, SAS Nagar, Mohali and came to know that the OP is claiming amount of Rs.92,399/-. The complainant further came to know about the arbitration proceedings which were held at his back and the award dated 20.5.2013 for the compliance of which the OP filed an execution application which was ultimately withdrawn by it. According to the complainant, the bailiff in pursuance of the warrants approached him a number of times which caused irreparable loss to his dignity and respect and he had to engage a counsel without any just cause and cogent reason.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OP, the complainant has filed the instant complaint.  
2.         OP in its written statement has admitted the factual matrix.  It has been averred that the complainant came to its office and paid a sum of Rs.1,25,000/- for which a receipt was issued.  It has been denied that a clearance certificate was issued in favour of the complainant.  As on 29.7.2010 a sum of Rs.67,272/-was due towards the complainant which he failed to pay despite repeated requests.  Left with no alternative the OP filed claim before the arbitrator at Mumbai, but, the complainant failed to appear before him despite notices and ultimately he was proceeded exparte. Ultimately the award dated 20.5.2013 was passed intimation regarding which was also sent by the arbitrator to the complainant on 22.6.2013. However, the complainant, despite receipt of the award, failed to pay the amount and the OP filed an execution application which was withdrawn for want of supply of list of property by the decree holder.  Pleading that there is no deficiency in service or unfair trade practice on its part, OP prayed for dismissal of the complaint.
3.         Rejoinder was filed by the complainant denying all the averments in the written statement of the OP.
4.         The parties led evidence in support of their contentions. 
5.         We have gone through the record, including the written arguments of the complainant, and heard the arguments addressed by the learned Counsel for the parties.
6.         The learned counsel for the complainant has vehemently contended that the facts of the complaint are more or less admitted by the OP.  It is admitted that the complainant purchased a car bearing registration No.PB-65E-6767 in the year 2006 for a sum of Rs.2,72,412/- on down payment of Rs.30,000/- to Berkeley Automobiles Pvt. Ltd., Chandigarh. The OP financed a loan to the tune of Rs.2,57,230/- on 29.9.2006. The total amount of Rs.3,49,080/- was settled to be paid by the complainant to the OP in 60 equal installments of Rs.5,818/- uptil 28.9.2011. The complainant in the year 2010 entered into one time settlement with the OP and paid Rs.1,25,000/- in all vide Annexure C-1, which was full and final.  No doubt the execution of receipt Annexure C-1 as well as payment of Rs.1,25,000/- is an admitted fact, but, the OP has the courage to deny that full and final settlement was made.  Once execution of receipt (Annexure C-1) is admitted, the OP cannot wriggle out from the contents of the receipt, which reads as under :-

“Settlement of agg No.504238 in the name of Lakhvir Singh ALTOLX is done on the full & final amount of Rs.1.25 lakhs (One Lakh Twenty Five Thousand only).”

Since it was full and final settlement, therefore, the OP could not claim that any amount on account of car loan was due and payable.  Rather the OP played smart and obtained an arbitration award dated 20.5.2013 for an amount of Rs.67,272/- behind the back of the complainant, copy whereof is Annexure C-4.  On the basis of the alleged award, the OP preferred an execution application for recovery of Rs.92,399/-.  The OP had absolutely no right or authority to file any such execution application.  On receipt of the notice from the court of Additional District Judge, Mohali, the complainant did appear and contested the execution, however, the OP withdrew the execution application on 6.12.2014 on the basis of the statement of counsel for the OP/DH in that case, copy whereof is Annexure C-5. The complainant had to suffer mental agony and harassment, due to the deficient services of the OP. It is, therefore, requested that the complaint may be allowed in terms of relief claimed vide instant complaint.

7.         However, from the appreciation of facts and circumstances of the case, no consumer dispute is made out. When the complainant availed loan facility from the OP in the year 2006, relationship of debtor/creditor was created inter se the parties. However, even status of debtor/creditor was also snapped when the complainant made the payment of settled amount of loan to the tune of Rs.1,25,000/- to the OP vide receipt Annexure C-1.  If after the settlement of the loan, the OP went out for arbitration proceedings or filed execution application for getting the impugned award executed, no relationship of consumer/ service provider came into existence as envisaged under Section 2 of the Consumer Protection Act, 1986. The complainant admittedly appeared before the court of learned Additional District Judge, Mohali in execution proceedings which have already been disposed of on the basis of the statement of counsel for the opposite party vide order dated 6.12.2014, copy of which is at Annexure C-5.  No deficiency in service is attributable to the OP so far as relationship of debtor/creditor is concerned, which already came to an end on 29.7.2010.
8.         From the aforesaid discussion, it becomes amply clear that the dispute raised vide the instant complaint does not fall under the term “consumer dispute”, as such, jurisdiction of this Forum cannot be invoked. The complainant could very well avail the forum of civil court for grant of damages under Section 73 & 74 of the Indian Contract Act, 1872 on account of mental agony or physical pain occasioned to him or on account of wrongful act or conduct of the OP. But, the complaint, as prayed, is not maintainable before this Forum.  As such, the complaint fails and is ordered to be dismissed with no order as to costs.  
9.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
19/01/2017	[Suresh Kumar Sardana]	[Surjeet Kaur]	[S.S. Panesar]
hg	Member	Member	President