SRI BIJOY KUMAR DAS,PRESIDENT:-
Non issuance of NOC/NDC in favour of the complainant against financed vehicle are the allegations arrayed against the Opp. Parties.
2. Complaint, in brief reveals that, Complainant had filed a consumer complaint against the Ops before this Forum bearing C.C.Case No.40/2009. This Forum while disposed the C.C.Case on ex-parte passed an order on dtd 27.08.2012 and directed the Ops to refund an excess amount of Rs.62,043/- within three(3)months from the date of the order. On non-compliance of the order in C.C.Case No.40/2009 complainant filed a Execution proceeding before this Forum bearing E.A.Case No.3/2013. It is stated that during pendency of the execution proceeding, Ops on compliance of the order of the C.C.Case paid Rs.70,030/- which includes the interest. It is revealed from the complaint that during pendency of execution proceeding No.3/13, and after receiving the ordered amount complainant filed a petition before this Forum with prayer to issue direction to Ops to issue No due certificate in favour of the complainant, this Forum vide order dated 27.01.15 after hearing the parties directed the Ops to issue NDC in favour of the complainant. The Ops preferred a Revision before the Hon’ble State CDR Commission,Cuttack,Odisha bearing R..P. No.45/2015 challenging the order of this Forum dtd.27.01.2015. The Hon’ble State Commission set-aside the order of this Forum dtd.27.01.2015 in R.P.Case No.45/2015 on the ground that there was no prayer of issue of NDC in C.C.Case No.40/2009. Subsequently, complainant-Petitioner filed an another petition in the Execution proceeding by amending the prayer of the Execution Application to release NDC in favour of the Petitioner, this Forum on dtd.07.03.2017 passed an order in E.A.No.3/13 directed the Ops to release NDC in favour of Petitioner which was challenged by the Ops before Hon’ble State Commission bearing R.P. No.28/18 and after hearing the parties setaside the order of this Forum dtd. 07.03.2017 and closed the E.A.Case No.3/13. It is the further case of the complainant that after passing of order on dtd.27.01.2012 in C.C.Case No.40/2009 shall be final U/S-24 of the C.P.Act and the Ops are legally bound to issue NDC and to refund Rs.1,00,750/- which has been taken from the complainant as an excess amount and the Ops be directed to pay an amount of Rs.30,000/- which includes compensation for mental agony and cost of litigation. The cause of action of the instant case arose on dtd.20.06.2018, when the Hon’ble State Commission set aside the order of this Forum and closed the E.A.Case No.3/13 and also on dtd.20.08.18 when the complainant made a representation to the Ops for refund of Rs.1,01,750/- and issue NDC to the complainant, but which is not complied by the Ops.
3. On receipt of Notice OP No.1 & 2 Tata Motors Finance Ltd. appeared through their Ld. Counsel and filed joint written version alongwith Annextures to counter the allegations. The OP-Finance company challenging the maintainability of the complaint raised the legal points related to principle of Resjudicata, doctrine of estoppel and Sec.24(A) of C.P.Act barred the complainant to file any complaint. On facts of the dispute, Ops averred that, complainant is a defaulter and has to pay Rs.64,969/- as loan dues. The other facts of the written version of Ops from the initiation of the C.C.Case No.40/2009 to closure of the E.A.Case No.3/13 by order dtd.20.06.18 of the Honble State CDR Commission in R.P.Case No.28/18 are similar as reflected in the complaint, which needs no elaboration. It is categorically averred by the OP-Finance Company that the issue of NOC in favour of the complainant as directed by this Forum has set-aside twice by the Hon’ble State Commission also by adding that loan outstanding are pending on the complainant no NOC can be issued in his favour. It is further case of the OP-Finance Company that there is no cause of action to file the complaint and the complaint is to be dismissed with cost.
4. Heard the Ld. Counsels appeared for the parties, perused the documents, Annexures and written notes on argument filed into present dispute, the admitted facts of the case are that complainant filed a consumer complaint bearing No. C.C.Case No.40/2009 before this Forum against the present Ops claiming compensation and the complaint was allowed by this Forum by passing an order on dtd.27.08.2012 directed the OP-Finance Company to refund Rs.62,043/- and the ordered amount was paid to the complainant-Petitioner by the Ops during pendency of the execution proceeding bearing No.E.A. 3/13. It is also admitted fact that during pendency of the execution proceeding and after receiving the ordered amount complainant-Petitioner filed a petition seeking direction of this Forum to Ops to release the NOC/NDC in favour of the Petitioner and same is allowed by this Forum vide order dtd.27.01.2015 after hearing the parties. The Ops preferred a Revision challenging the order of this Forum dt. 27.01.2015 before Honbl’e State Commission bearing R.P.Case No. 45/2015. On order dt. 21.08.2015 Honbl’e State C.D.R. Commission setaside the order of this Forum dt. 27.01.2015 on the grounds that there was no prayer for release of NOC/NDC on the original complaint. Subsequently, the complainant-petitioner filed an amended petition adducing the prayer for release of NOC/NDC in the E.A.Case No.3/13 and after hearing to the parties and this Forum allowed the amended Execution Application and by order dt. 07.03.2017 of this Forum directed the Ops to release NOC/NDC in favour of the complainant-petitioner. The order dt. 07.03.17 of this Forum in E.A.Case No. 3/13 is challenged by Ops by way of Revision bearing No.28/18 before Honbl’e State C.D.R. Commission and the order of this Forum dt. 07.03.2017 was setaside and E.A. Case No.3/13 is closed on the order of the Honbl’e Stated Commission in the R.P.Case No. 28/18 dt. 20.06.2018. It is further admitted fact that neither the complainant has preferred any revision before the higher commissions on closure of the E.A.Case No.3/13 nor the Ops have preferred any appeal before the appropriate commission challenging the order of this Forum in C.C.Case No.40/2009.
In the case in hand, it is clear that there is no claim in connection to payments/dues as raised by the parties in their respective complaint and written version. The C.C.Case No. 40/2009 decided by this Forum on 27.08.2012 observed accordingly, we here quote the relevant portion of the order “xxxxxxxxx the ops are not entitled to get any amount from the complainant in respect of the sanctioned loan xxxxxxxxxx”. Simultaneously, as per the own admission of the complainant, he has received an amount of Rs. 70,030/- as per the order of the C.C.Case No.40/2009 during the pendency of the E.A. case No.3/13. Now, this Forum is of the opinion that either of the side on the present litigation is entitled to get any amount from the other side as claimed.
The next question to be decided by this Forum as raised by the Op-finance Company relating to non-maintainability of the complaint on grounds of principle of resjudicata, doctrine of estoppel and Sec.24(A) of C.P.Act, in our opinion and considering the position of law in principle of resjudicata which debars a Court from exercising its Jurisdiction to determine the lis if it has attainded finality between the parties where as the doctrine of estoppels is invoked against the party. If such an issue is decided against him, he would be estoppels from raising the same in the latter proceeding. The principle of resjudicata and doctrine of estoppels will not be applicable to the instant case as this Forum is not going to retrial or re-examine the facts on dispute filed earlier before this Forum C.C.Case No. 40/2009. In addition to plea of estoppels, as raised by the Ops, we are of the opinion that the order of this Forum in E.A. Case No.3/13 directing the Ops to issue NOC/NDC in favour of the complainant was setaside twice by the Honbl’e State C.D.R. Commission on different technical grounds, which is no resemblance with the present complaint and not substantiate the defence pleas of the Ops as averred rather the order of the Honbl’e State CDR Commission in both the revisions are related to interpretation of law. So also the provisions of section 24(a) of C.P.Act as agitated by the Ops, the points are not applicable to the instant dispute as the present complaint is filed with a fresh cause of action, which arises after closure of the E.A.Case No.3/13 and on representation of complainant by Regd. Post on 24.08.18( as revealed from the attested photocopy filed by the complainant) to issue NOC/NDC in his favour, which is not complied by the Ops till filing of the present complaint on 15.11.2018. The Ops have not averred a single sentence on existence of the representation made by complainant, we rely on the representation made by the complainant, when the same is filed with proper attestation alongwith the Postal Regd. Slip.
If for the shake of argument for a moment, it is believed that the position of law as averred by the Ops are applicable to the present complaint, then what is the consequency of the complainant who purchased a vehicle and clear his loan dues shall seat silently without obtaining NOC/NDC or opting for any legal option? Hence, the defence pleas of the Ops on factual aspect of the case and on position of law is not appreciated by this Forum and it is felt that, after clear of the loan dues and without possessing the NOC/NDC complainant is definitely suffering a lot and this Forum held that the Ops by not issuing the NOC/NDC has acted negligently, which is not an appropriate ‘service’ provided to its customer. The compensation claimed by the complainant is without any proper evidence, so we reject this plea of complainant.
Having observations reflected above, it is directed that, Op-finance Company shall issue the No objection Certificate/ NO Due Certificate in favour of the complainant within one month from date of this order failing which action be initiated against the Ops as per the Provisions of C.P.Act,1986.
Complaint is allowed in part on contest against the Ops without any cost.
Pronounced in the open Court, this 18th day of September-2019.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
