Complainant Gurnam Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the necessary directions may kindly be issued to the opposite parties to issue No Due Certificate regarding the Chotta Hathi bearing Temporary No.2610 and also to return the excess amount alongwith interest @ 18% per annum from the date of due till its realization alongwith compensation for illegal harassment and also mental agony or any other relief may be granted to him as this Hon’ble Forum deem fit, in the interest of justice.
2. The case of the complainants in brief is that he is unemployed and due to this he purchased Chhota Hathi Magic amounting to Rs.3,45,000/- for earning his livelihood and for self employment on 22.12.2014 through opposite parties from the agency situated on Tibri Road. He paid Rs.50,000/- at the time of purchase and remaining amount i.e. Rs.2,95,000/- was financed by the opposite parties and at the time of purchase of Chhota Hathi, temporary registration No.2610 was allotted to him and bills of the same were kept by the opposite parties with the pretext that they want to prepare the RC and original bill is necessary for the same and assured that they will hand over the Registration certificate to him, whenever the same will issued by the District Transport Officer, Gurdapsur but they have not issued Registration Certificate to him till date. He continues paying the installment of the abovesaid vehicle and the opposite parties issued the receipts regarding the same to him and he never defaulted in payment of installment of the financed amount. He has next pleaded that in the month of August, 2015, the opposite parties forcibly took the Chotta Hathi which was standing at his house and in his absence. He paid the amount of Rs.1,00,000/- to the opposite parties through regular installment and opposite parties illegally snatched the Chotta Hathi from him and sold the same without his consent. In the month of December, 2015 he approached to the opposite party no.2 and requested to return the Chotta Hathi but they said that Chhota Hathi was sold by the opposite parties and amount due against him regarding loan has been adjusted in the loan account and now there is no any due amount against him. Even his Chotta Hathi has been sold to the highest price then the due loan amount and also assured to return some excess amount to him and will also issue No Due Certificate. Thereafter, he approached the opposite party no.2 so many times and requested them to return the excess amount and also issued No Due Certificate against the loan account, but the opposite party no.2 is putting the matter with one pretext or the other and has not issued the No Due Certificate and excess amount uptill now. The act of the opposite parties not to issue No Due Certificate to him and also not to return the excess amount to him is illegal, null and void. Hence this complaint.
3. Notice of the complaint was served upon the opposite parties who appeared through their counsels and filed their written reply by taking the preliminary objections that complaint is not maintainable; the complainant has not disclosed the true and material facts at the time of filing the present complaint and concealed the vital facts; this Ld.Forum has got no jurisdiction to try and entertain the present complaint and the complaint of the complainant is barred under limitation. On merits, it was admitted that complainant purchased Chhota Hathi Magic, however complainant purchased the abovesaid Chhota Hathi for amounting to Rs.3,71,709/- vide higher purchase agreement dated 05.12.2014, which will be repaid in 48 equal installments of Rs.10,830/- each without any default and as such in 48 installments, the complainant has to pay Rs.5,19,840/- upto 30.11.2018. The complainant is habitual defaulter in making the due installments. Thereafter the complainant approached to the opposite parties and peacefully handed over the above said Chhota Hathi to the opposite parties on 9.10.2015 and requested to sell the Chhota Hathi in an open auction and adjust the sale price in the loan installment and then as per the request made by the complainant, the opposite parties sold the Chhota Hathi in an open auction to the highest bidder in the presence of the complainant. The sale price of the Chotta Hathi was Rs.1,87,000/- which was sold on 26.11.2015 and after adjustment an amount of Rs.2,19,210/- was still due against the complainant to be repaid against the abovesaid loan amount. Thereafter the opposite parties referred the case to the Ld.Sole Arbitrator at Kolkata as per clause of agreement No.22. The opposite parties have also sent proper notice to the complainant before referring the matter before the Ld.Sole Arbitrator and the Ld.Sole Arbitrator also sent notice to the complainant through registered post regarding the arbitration proceedings, but the complainant failed to appear before the Ld. Sole Arbitrator and opposite parties were afforded opportunity to lead their evidence before the Ld.Sole Arbitrator and on 18.8.2016, the Ld.Sole Arbitrator passed an award against the complainant. The copy of the award is also sent o the complainant on 20.9.2016, but the complainant is delaying the payment of due loan installments on one pretext or the other. All other averments made in the compliant have been denied and lastly the complaint has been prayed to be dismissed with exemplary costs.
- Complainant had tendered into evidence his own affidavit Ex.C1 along with other documents Mark A and Mark B and closed his evidence.
- Counsel for the opposite parties had tendered into evidence affidavit of Sh.Sukhveer Singh Ex.OP-1 along with document Ex.OP-2 and closed the evidence.
6. We have carefully examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while (at the same time) taking the due judicial-notice of the non production of some documents that were otherwise vital for the current proceedings to place/ base the resultant award under the adjudicatory Act. We observe that the present dispute/complaint has arisen as a result of the alleged unsatisfactory services rendered to the complainant at the hands of the opposite party financers who were otherwise (vide the express and implied Finance Contract-Deal) duly liable to provide transparent and efficient basic services to their customers/consumers.
7. However, we find that the present complainant has failed to cogently prove his complaint-contented allegations by producing sufficient and satisfactory evidentiary/documentary evidence. The complainant here has alleged non-delivery of legal documents to him to the finance-sanction, finance-contract, financed vehicle but has failed to prove these on records along with the alleged forcible repossession of the financed vehicle. In the absence of supporting evidence the affidavit (Ex.C1) alone cannot prove its deposed allegations that shall amount to bald statements, only. The complainant could not even prove the claimed repayment through the payment receipts exhibited as Mark A & Mark B, as produced on proceeding-record.
8. On, the other hand the opposite party financers have deposed vide the Affidavit (Ex.OP-1) its fierce rebuttals to complaint pleadings besides pleading presence of the one acknowledged arbitration-clause in the hire-purchase agreement (Ex.OP4) and its due invocation with its pronounced adverse award (Ex.OP2) dated 18.08.2016 favoring the OP financers and that shall statutorily bar the present adjudication under the herein applicable Consumer Protection Act,1986; since the complainant has filed the present complaint on 10.01.2017 i.e., much later in point of time to invocation and award pronouncement under the mutually consented upon Arbitration & Conciliation Act, 1996. Thus, we are of the considered opinion that the present complaint shall not be statutorily maintainable, here.
9. In the light of all above, we are not inclined to proceed further with the statutory adjudication of the instant complaint and thus ORDER for its dismissal while allowing liberty to the complainant to avail himself of any other legal remedy of his own choice and advice, as provided in law through procedure as established in law. The litigating parties shall however bear their own costs, here.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
MAY 18, 2018 Member.
*MK*
