Haryana

Yamunanagar

CC/705/2010

Manoj Kumar S/o raj Kumar - Complainant(s)

Versus

Mahindra & Mahindra Financial Ltd. - Opp.Party(s)

J.S.Chahal OP No.3

17 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                           Complaint  No.  705  of 2010.

                                                                                                           Date of institution: 29.7.2010.

                                                                                                           Date of decision:  17.6.2015.

 

Manoj Kumar son of Shri Raj Kumar, resident of village Khadri, Tehsil Chhachhrauli, District Yamuna Nagar.        

                                                                                                                                                     …Complainant.

                                                    Versus

1. Mahindra & Mahindra Financial Services Limited, Sector-26-D, SCO-3, Ist Floor, Madhya Marg, Chandigarh-160019, through its Manager.  
2. Mahindra & Mahindra financial Services Ltd. , Cross Road No.1, Sudarshan Towers, above the Rajasthan Bank Ltd. Ambala Cantt. Distt. Ambala through its Manager.   
3. Manager, Punjab & Sind Bank, Jagadhri Saraswati Vidhya Mandir, District Yamuna Nagar.                                                                                                                                                                                                                   …Opposite parties.   

CORAM:          SH. ASHOK KUMAR GARG, PRESIDENT

                         SH. S.C.SHARMA, MEMBER.

           

Present: Sh. J.S.Chahal, Advocate, counsel for complainant.   

              OPs No.1 & 2 already ex-parte.

              Sh. J.S.Anand, Advocate, counsel for OP No.3.    

 

ORDER

 

1.                     Complainant has filed the present complaint under section 12 of the Consumer Protection Act for claiming Rs. 1,85,000/- on account of refunding excess money charged by the OP No.1 from which the complainant has got financed his vehicle Mahindra Scorpio and further to refund the interest amount of two years, which was to be deducted from the installments with the agreed rate of interest from December 2009 till actual payment and further to pay a compensation of Rs. 50,000/- on account of mental harassment and agony and Rs. 5000/- as cost of proceedings.

2.                     Brief facts of the complaint are that complainant on 23.6.2007 had purchased the vehicle make Mahindra Scorpio bearing Engine No. 64M73625, chassis No. 72A60948 (herein after referred as ‘the said vehicle’) from Swami Automobile Pvt. Ltd. Bhatta Chowk, Ropar (Punjab) for a sum of Rs. 6,90,000/- on 23.6.2007, out of this price, he had paid a sum of Rs. 1,90,000/- to the said automobiles company in cash vide their receipt No. 477 dated 22.6.2007 and the remaining amount of Rs. 5,00,000/- was financed by the OP No.1 Mahindra & Mahindra Finance Service Ltd. Chandigarh. The complainant has further stated that the said financed loan amount of Rs. 5,00,000/- was to be paid by the complainant in 48 monthly installments of Rs. 12,000/- each, which includes interest also. He has further stated that a total sum of Rs. 51500/- in cash and Rs. 56,000/- through cheques were collected by the OP No.1 through his authorized representative from the village of complainant i..e village Khadri, Tehsil Chhachhrauli. He  has further stated that above said cheques were of Punjab & Sind Bank, Saraswati Vidya Mandir, branch Jagadhri, District Yamuna Nagar bearing account No. SB-3211. The complainant has further stated that the abovesaid vehicle “was stolen at Ponta Sahib, District Sirmaur, (Himachal Pradesh)” and in this regard an FIR No.  37 dated 1.4.2008 was lodged in the police station Ponta Sahib.

3.                     The complainant has further alleged that the abovesaid vehicle of the complainant was insured with the Bajaj Allianz General Insurance Company Ltd., as such a sum of Rs. 6,54,000/- was sanctioned to be paid to the complainant by the abovesaid Bajaj Allianz General Insurance Company against the theft of vehicle. It has been further alleged that the said amount of Rs. 6,54,000/- has been directly sent to the OP No.1 through cheque by the Bajaj Allianz General Insurance Company Ltd., in this way the OP No.1 has received total amount of Rs. 7,61,500/- i.e. Rs. 1,07,500/- from the complainant and Rs. 6,54,000/- from the abovesaid Bajaj Allianz General Insurance Company Ltd.  In other words the OP No.1 has received an excess amount of Rs. 1,85,000/- because as per agreement the loan amount of Rs. 5,00,000/- was to be received by the OP No.1 from the complainant in 48 installments of Rs. 12000/- each i.e. (12000x48= 5,76,000/-) which comes to Rs. 5,76,000/-. It is further alleged that the OP No.1 has received the claim amount from the insurance company two years earlier from its repayment schedule, so the interest of the two years is still to be deducted from the said loan amount. In this manner, the OP No.1 is liable to return a total sum of Rs. 1,85,000/- plus two years interest which was to be deducted from the installments with the agreed rate of interest from December 2009 till the actual payments. It has been further stated that the complainant has made so many requests to the OP No.1 to refund the abovesaid amount but the OP No.1 refused to do so. The complainant also sent a registered notice dated 11.5.2010 to the OPs No.1 & 2 in this regard which proved futile. It has also been disclosed by the complainant that he had earlier filed a complaint before this Forum in respect of this amount which was got withdrawn by the complainant due to some technical defect on 3.5.2010 with permission to file the complaint afresh. Lastly prayed that OPs No.1 & 2 may kindly be directed to refund the amount received in excess with interest as stated above and also prayer for granting compensation of Rs. 50,000/- on account of mental, harassment and agony and Rs. 5000/- as cost of proceedings.

4.                     Upon notice OPs No.1 & 2 failed to appear despite service and were proceeded ex-parte vide order dated 4.10.2010. However, OPs No.1 & 2 moved an application for setting aside the ex-parte order on 27.4.2011 and the same was dismissed vide order dated 26.7.2012 by this Forum with the liberty to join the proceedings at this stage with further liberty to file affidavit, documents etc. but despite that OPs No.1 & 2 failed to file any affidavit and documents and remained ex-parte as it is.

5.                     OP No.3 appeared and filed written statement taking some preliminary objections regarding maintainability, no deficiency in service and the complaint is bad for mis-joinder of the parties as the OP No.3 is not necessary party. On merit, it has been alleged that no cause of action arises in favour of the complainant against the OP No.3 who has been impleaded just to create the jurisdiction of this Forum whereas OP No.3 has no concern whatsoever with the affairs of this complaint. It has been further alleged that as and when any cheque was received in the account of the complainant, the answering OP cleared the same and lastly prayed that there is no deficiency or negligence in service on their part.  Even, no allegation of any type has been levelled in the complaint by the complainant against the answering OP and prayed for dismissal of complaint with costs

6.                     To prove the case, complainant tendered into evidence his affidavit as Annexure CX and documents such as Annexure C-1 Photo copy of cash receipt of Rs. 1,90,000/- dated 22.6.2007, Annexure C-2 Photo copy of FIR bearing No. 137 dated 1.4.2008 under section 379 IPC registered in P.S. Ponta Sahib, District Sirmaur, Annexure C-3 Photo copy of No Objection Certificate for removing hypothecation issued by OP No.2, Annexure C-4 Photo copy of Form No.35 issued by OPs No.1 & 2. Annexure C-5 Photo copy of retail invoice issued by Swami Automobile Private Ltd, Ropar dated 23.6.2007, Annexure C-6 to C-10 Account Statement of Punjab & Sind Bank, Yamuna Nagar, Annexure C-11 legal notice, Annexure C-12 & C-13 Postal receipts and closed his evidence.  

7.                     On the other hand, OP No.3 failed to produce any documents and evidence of OP No.3 was closed by court order dated 13.3.2015.

8.                            We have heard learned counsel for both the parties and have gone through the pleadings as well as documents carefully and minutely placed on the file. Counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for opposite party No.3 reiterated the averments made in their reply and prayed for its dismissal.

9.                     Counsel for the complainant argued that OPs No.1 had collected the payment of Rs. 51500/- in cash and Rs. 56,000/- through various cheques through its authorized representative from his village Khadri, Tehsil Chhachhrauli and the said cheques were drawn at Punjab & Sind Bank, Saraswati Vidhya Mandir, Jagadhri, District Yamuna Nagar (OP No.3) and further argued that complainant is resident of village Khadri, Tehsil Chhachhrauli, District Yamuna Nagar, hence this Forum has territorial jurisdiction but we are not convinced with this arguments advanced by counsel for the complainant.   In the present complaint, the complainant has sought relief to refund the excess amount from OP No.1 only as his abovesaid vehicle was financed by OP No.1 at Chandigarh.

10.                   Counsel for the OP No.3 argued that complainant has impleaded the OP No.3 as party in his complaint just to create territorial jurisdiction whereas the OP No.3 has no concern whatsoever with the affairs of this complaint. In this regard reliance is placed upon provisions of Consumer Protection Act 1986, Under Rule 11(2) which reads as under:-

            A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1. The opposite party or each of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or[ carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [ carry on business or have a branch office] or personally work for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part, arises.

11.                   In the present case, complainant seeks remedies against OP No.1 only for refunding the excess amount with interest amount of two years, which was to be deducted  from the installments with the agreed rate of interest from December 2009 till actual payment and no other allegations or any deficiency in service or otherwise has been levelled against the OP No.3. Hence, from going through the whole case file, we are of the considered view that no cause of action wholly or part of cause of action has arisen at Yamuna Nagar in favour of complainant and this Forum has no territorial Jurisdiction to entertain and try the present complaint.                    

12.                   Consequently, in views of the above discussed factual as well as legal position, we are of the considered view that this complaint is not maintainable before this Forum. Hence, the same is hereby dismissed for want of jurisdiction. However, the complainant is at liberty to approach appropriate court/Forum, if so advised. In that eventuality the period spent before this Forum shall not be counted towards the period of limitation for approaching appropriate Forum/Court. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583. The complainant can have all the original documents, if any, relied upon in this case and the office is also directed to hand over the same, if any, attached with the complaint after retaining copy of the same. A copy of this order be supplied to both the parties free of costs as per rules.  File be consigned to the record room after due compliance. 

Announced in open court. 17.6.2015.

                                                                                    (ASHOK KUMAR GARG)

                                                                                      PRESIDENT

 

                                               

                                                                                      (S.C.SHARMA   )

                                                                                        MEMBER