Punjab

StateCommission

A/10/1784

Munish Gupta - Complainant(s)

Versus

Megma Leasing Ltd. - Opp.Party(s)

In person

07 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1784 of 2010

 

                                                          Date of Institution: 13.10.2010  

                                                          Date of Decision:   07.04.2015

 

Munish Gupta son of Sh.Naresh Gupta, Proprietor M/s Madhuban Steel Sales and R/o Ward No.9, Sangatpura, Kang Market, Mandi Gobindgarh, Tehsil Amloh District Fatehgarh Sahib.                                                                                                                                                                                                                …..Appellant/Complainant        

                                      Versus

 

1        Magma Leasing Ltd., Branch Office Cabin No.211, First & Second       Floor, Savitri Complex (Dada Motor) G.T. Road, Ludhiana, through its Branch Manager.

2        Magma Leasing Ltd., Registered Office 24, Park Street Koltaka,          through its General Manager.

 

                                                          …..Respondent/Opposite Parties

 

         

First Appeal against order dated 09.09.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

Present:-

 

          For the appellant              :         Sh. V.K Sharma, Advocate.

          For the respondent          :         Sh.Sandeep Suri, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against  the respondents of this appeal (the opposite parties in the complaint), challenging  order dated 09.09.2010 of District Forum Ludhiana, dismissing the complaint of the complainant. The instant appeal has been filed against the same by the complainant now appellant in this appeal.

2.      The complainant Munish Gupta has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he got financed one Maruti Car bearing registration no. PB-48-A-2927, vide loan agreement No.PG/0039/C/02/00010 dated 18.09.2003 for a sum of Rs.2,00,000/- in the name of firm M/s Madhuban Steel Sales. The complainant, being the proprietor of the firm, stood as guarantor in the said loan transaction and paid the first installment in cash and also gave 23 post dated cheques in advance for a sum of Rs.9,152/- each. The complainant has paid the entire loan amount of Rs.2 lac along with interest to the OPs by issuance of the post-dated cheques, which were duly collected by the OPs. The complainant approached the OPs for issuance of No Due Certificate so that entry of hypothecation could be deleted from the registration certificate of the vehicle.  OP No.1 stated that one cheque of the complainant was  misplaced and complainant paid the amount of misplaced cheque to the OP No.1 on 21.08.2006 and thereafter no amount remained payable from the complainant to OPs. The OP had not issued "No Due Certificate" to the complainant despite clearance of the loan amount by the complainant. The complainant served legal notice upon the OPs in this regard, but to no effect. The complainant received notice dated 06.03.2010 regarding the payment of the loan amount, as raised by the OPs in an unauthorized manner. The complainant has, thus, filed the complaint against the OPs praying that they be directed to issue the "No Due Certificate" to the complainant and also further prayed for compensation of Rs.50,000/- for mental harassment and Rs.10,000/- for deficient service and Rs.15,000/- as costs of litigation.

3.      Upon notice, OPs appeared and filed written reply raising preliminary objections that complainant has suppressed the material facts from the Forum and hence complaint merits dismissal on this score. That the territorial jurisdiction of the Forum is excluded as per the clause of the contract, which is binding on the parties and only Kolkata Forum is competent to entertain this complaint and jurisdiction has been mutually restricted by the parties to Kolkatta Consumer Forum only. The complainant has nowhere alleged in the complaint that OPs in any manner breached or violated any terms of the contract, as entered into between the parties. There has been an arbitration clause in agreement between the parties, hence the Consumer Forum is not competent to entertain this complaint. The complaint is alleged to be false and frivolous, being an abuse process of law only. The complainant was alleged not to be a consumer of the OPs and hence complaint was alleged to be not tenable. It was further averred that the vehicle was financed to M/s Madhuban Steel Sales for commercial purposes; hence, the consumer complaint is not maintainable. The complainant filed the previous complaint, which was dismissed as withdrawn without any permission to file the fresh complaint on the same cause of action and hence the instant subsequent complaint on the same cause of action is barred. The complaint was also resisted even on merits by the OPs. It was averred in the written reply by the OPs that loan was disbursed to the complainant upon his request, vide proposal No.PG/0039/C/02/000101 upon the agreed terms and conditions of the agreement for a sum of Rs.2 lac to be repaid on 24 installments of Rs.9152/- each. The loan was financed for commercial purposes, hence Consumer Forum is not competent at all to try the complaint. The complainant was never regular in depositing his installments and his every installment was quite late. It is evident from the statement of accounts that there has been delay of 371 days and average delay of 58.75 days in paying the loan amount by him. The timely payment is the essence of the agreement between the parties. The complainant has not paid the entire loan amount and presently the loan amount of Rs.74252/- is still outstanding from the complainant to OP on 14.06.2010.  The OPs controverted the other averments of the complaint and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of complainant Ex.CW-1/A, copies of legal notice Ex.C-1 and Ex.C-2. As against it, OPs tendered in evidence affidavit of Sanjeev Kumar Legal Executive Magma Fincrop Ltd Ex.R-A, copy of vehicle loan cum hypothecation agreement Ex.R-1, copy of statement of account Ex.R-2, copy of complaint Ex.R-3. On conclusion of evidence and arguments, the District Forum, Ludhiana  dismissed  the complaint of the complainant by virtue of order dated 09.09.2010 under challenge in this case. Dissatisfied with the order of the District Forum, Ludhiana, the instant appeal has been preferred against the same by the complainant now appellant.

5.      We have heard learned counsel for the parties and have also examined the record of the case.      We have carefully perused the pleadings of both the parties on the record and the affidavits tendered in evidence by them and their respective pleas in this case. We also refer to other evidence on the record in this case to settle the controversy brewing between the parties in this case. The affidavit of the complainant Munish Gupta, in support of his case, is Ex.CW-1/A on the record. On the other hand, the counter affidavit filed by the OPs through Sh. Sanjeev Kumar Legal Executive Magma Fincrop Ltd Ex.R-1 is on the record. We have examined the agreement of loan Ex.R-1 on the record in this case. We have also examined the statement of account Ex.R-2 on the record in this case. It is recorded in the statement of account Ex.R-2 that amount of Rs. 71,255/- is due from the complainant to the OPs on 14.06.2010. Ex.R-3 is certified copy of Consumer Complaint No.756, instituted on 6.11.2009 between the parties, which was dismissed as withdrawn on the basis of the statement of the complainant. We find from the perusal of the order of the District Forum dated 04.05.2010 Ex.R-3, vide complaint No.756 against OPs on the same cause of action, which was dismissed as withdrawn by the complainant without seeking any permission of the District Forum to institute the fresh complaint on the same cause of action.

6.      Now we meet the arguments of the parties one by one in this case. First submission raised by the OPs now respondents in this case is that the jurisdiction has been mutually restricted by the parties to the Kolkatta Consumer Forum only by virtue of agreement Ex.R-1 entered into between the parties. The emphatic submission of the OPs is that when there is mutual agreement between the parties restricting the jurisdiction to Kolkatta District Forum, hence the District Forum at Ludhiana is not competent to entertain the complaint. We are not accepting the submission raised by the counsel for OPs on this point. The cause of action accrued in this case within the jurisdiction of the District Forum Ludhiana. The OP No.1 also carries on business within the territorial jurisdiction of District Forum of Ludhiana and there is statutory power conferred on the District Forum Ludhiana to entertain this complaint, especially when cause of action has accrued within its jurisdiction and OP No.1 also carried on the business for personal work and gain within the jurisdiction of the District Forum Ludhiana on this point. The OPs relied upon law laid down in case Arun Chadha Vs. M/s Soni Agencies & Ors  reported in 2007(4) Civil Court Cases Page 431 and case law Hazari Lal Vs.  Haryana Khadi & Village Industries Board and Another reported in 2007(4) Civil Court Cases Page 761 of Punjab & Haryana High Court and case law Mayar (H.K) Ltd & others Vs.  Owners & Parties, Vessel M.V Fortune Express & Ors reported in 2006(1) Page 610 (S.C)  on this point. We have examined the authorities cited before us by counsel for the OPs in this appeal. Undoubtedly, the parties can restrict their jurisdiction to one court as per the mutual agreement entered into between the parties, in view of Section 20 of the Code of Civil Procedure Code therein. This is a consumer complaint filed under the Consumer Protection Act and procedure prescribed therein in summary when statutory jurisdiction is conferred upon the complainant by this special Act to file the complaint and hence we are unable to buy  the submission of the OPs that this statutory jurisdiction can be taken away with the mutual consent of the parties. The provision of Special Act will prevail over the provision as provided in the Code of Civil Procedure. In the consumer complaint, the summary remedy is provided in the Consumer Protection Act, which is a Special Act, to achieve the speedy disposal of the consumer complaints. This is an additional remedy under Section 3 of the Consumer Protection Act and  hereunder.  Consequently, we do not accept the submission of the OPs that jurisdiction of the District Forum Ludhiana has to be taken away and only the jurisdiction of Kolkatta Forum has to be conferred, as mutually agreed by the parties, moreso, when  neither any part of cause of action has accrued within the jurisdiction of the Kolkatta District Forum nor the OP reside within the jurisdiction of the Kolkatta District  Forum. This submission of the OPs is, thus, not accepted by us. The OPs now respondents submitted that there is an arbitration clause between the parties and hence Consumer Forum is not competent to entertain the complaint. The matter has been settled by Hon'ble National Commission New Delhi in case titled as Udaipur Cement Works  Vs.  Punjab Water Supply & Sewerage Board reported in 1999(1) CLT Page 602/603 wherein, the National Commission has observed that mere existence of an arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief and under the Act, which is a special piece of legislation to protect the interests of the consumers notwithstanding the other laws in force. On the basis of  law laid down by the National Commission in this authority, the contention of the OPs is not accepted by us.

7.      We find that complainant previously filed the consumer complaint against the OPs on the same cause of action. The complainant withdrew the previous complaint without seeking the permission of the District Forum concerned to file fresh complaint on the same cause of action. This fact is evident from perusal of the order of the District Forum Ex.R-3 dated 04.05.2010 in Consumer Complaint No.756 dated 6.11.09 between the same parties. Subsequently, the complainant brought the fresh complaint No.226 of 2010 without any permission of the District Forum Ludhiana to file the fresh complaint, on the same cause of action. We find that the instant complaint is, thus, barred as subsequent complaint cannot be filed by the complainant when the previous complaint has been withdrawn by the complainant without any permission by the District Forum to the consumer to file the complaint on the same cause of action. Second complaint is not maintainable unless and until the consumer forum has granted the specific liberty to file the fresh complaint on the same cause of action to the consumer. The instant complaint being second complaint on the same cause of action is, thus, not maintainable in our considered view.

8.      Even otherwise on merits, we find that dispute between the parties pertains to this fact whether the complainant has collected the loan amount or it is still un-cleared in this case. The complainant swore affidavit Ex.CW-1/A to the effect that he has cleared loan amount of Rs.2 lac. On the other hand, submission of the OPs as well as in  the affidavit of the Sanjeev Kumar Legal Executive Magma  of OPs Ex.R-A is that the complainant has not made timely payments to the OPs and committed default and amount of Rs.74,252/- is still due from the complainant to the OPs. Our attention has been drawn to the statement of account Ex.R-2 on the record showing that balance amount of Rs.71,255.17 is still due from the complainant to OPs on 14.06.2010. We find that there is basic dispute between the lender and borrower regarding the payment of the loan amount. The complainant has stated that he has cleared the loan amount, whereas the version of the OPs is that complainant is still in arrears thereof. The point cannot be decided in minutia by us without recording voluminous evidence to this effect on the record. Each entry of the statement of account is required to be corroborated or contradicted by means of independent evidence on the record. We find that when there  is relationship of lender and borrower between the parties, and the appropriate Forum to settle the dispute is Civil Court. In Mandal Plastic Industries Vs. Bihar State Financial Corporation 1998(2) CPR 254, it has been held that relationship between the OP and complainant is that of lender and borrower and complaint is liable to be dismissed on this point. Consequently, we find that as per the statement of account Ex.R-2, complainant is still shown to be in default of OPs in payments of the loan amount. The complex facts are involved in this case, which cannot be adjudicated in a summary manner without taking voluminous evidence on the record by us. The District Forum correctly observed that the complaint of the complainant is without any force and hence dismissed it. The complainant is at liberty to agitate his remedy before competent civil court in this case for redressal.

9.      In view of our above discussion, the appeal is without any merit and same is hereby dismissed.      

10.    Arguments in this appeal were heard on 01.04.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                              (VINOD KUMAR GUPTA)

                                                                            MEMBER

 

April 7  2015.                                                                 

(ravi)