Haryana

Ambala

CC/100/2021

Suresh Kumar - Complainant(s)

Versus

M/s Ashok Ley Land - Opp.Party(s)

Jasdeep Singh

02 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	100 of 2021
Date of Institution	:	23.02.2021
Date of decision	:	02.01.2024

Suresh Kumar S/o Shri Ram Lal aged 65 years resident of House No.225, B.C Bazar, behind Fire Brigade, Balmiki Basti, Ambala Cantt.

          ……. Complainant

Versus

1. M/s Ashok Ley land, through its authorized Signatory, No.1, Sardar Patel Road, Guindy, Chennai 600032, Tamil Nadu, India
2. M/s Ashok Ley land, PMG Motors having its showroom at village Saha Road Village Mangali, Ambala Cantt. through its Managing Director Vivek. (M.No 9034050107).
3. M/s Ashok Ley land, PMG Motors having its showroom at village Saha Road Village Mangali, Ambala Cantt through its agent Mukesh Kumar. (Μ.Νο 8199988231)
4. HBD Financial Services Limited, 1^st Floor, SCO No.22, Sector 7, Madhya Marg, Chandigarh 160019 through its Manager Loan Account No.12553224

                                                                                   ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Ramesh Chand Rana, Advocate, counsel for the complainant.

                   Shri R.K. Vig, Advocate, counsel for the OP No.1.

                   Shri Rajiv Sachdeva, Advocate counsel for the OPs No.2 and 3.

                   None for OP No.4.                           

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To handover the documents of vehicle in question along with the Starting Key, Number Plate, Fast Tag for one year in specified time;
2. To direct OP No 4, not to take possession of the vehicle till the finalization of the complaint.
3. To grant stay with regard to payment of installments of the vehicle because of the non-delivery of the documents due to fault of the OPs.
4. To pay compensation for unfair trade practice, deficiency in service, mental agony, harassment etc. to the tune of Rs 5,00,000/- .
5. To pay Rs.50,000/- as cost of litigation

Or

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.            Brief facts of the case are that the complainant had served in Haryana Police as Class-IV employee and retired on 31.12.2015 and residing at H.No 225, B.C Bazar, Behind Fire Brigade, Balmiki Basti, Ambala Cantt. The complainant was hardworking and dedicated to his life plans to work after he attains retirement. He was approached by the OPs being a dealer of Ashok Ley land in August 2020 for purchasing commercial vehicle make DOST PLUS for an amount of Rs. 6,45,000/- with the down payment of Rs 40,000/- excluding the registration and insurance charges. Due to the shortage of funds at that time the complainant dropped the plan to purchase the vehicle. In the month of September, 2020 the OPs again approached the complainant and tried to convince him to purchase the vehicle by stating that they will provide best offers and will help him to purchase the vehicle within his budget. OPs No.2 and 3 managed to convince the complainant and asked the complainant to pay only Rs.60,000/- as down payment, insurance and registration charges for the purchase of the vehicle. The OPs in connivance with each other provided the facility of finance of the said vehicle from OP No.4 and confirmed the complainant that no extra money needs to be paid by him. At the time of handing over the possession of the vehicle the OPs issued a temporary No certificate of the vehicle on 01.10.2020. After all the work was done and when it was the time to hand over the documents of the vehicle, OPs No.2 and 3 called the complainant and again demanded Rs 22,000/- for the Registration Certificate and other documents, which they have already claimed from the complainant. The complainant finding no way as he has already given his hard earn money of Rs 60,000/- to OPs No 2 and 3, agreed to the demand of the OPs. But due to financial difficulty, the complainant refused to give money on the same day and handover the postdated cheque dated 05.02.2021. The complainant told that the payment mentioned in the cheque will be made/cleared in four equal installments and as such, OP's No 2 and 3 promised to release the Registration Certificate and other documents within one month from the date of delivery of the vehicle. Further, the OP's 2 and 3 also promised to give Toll-Tax Tag-free for one year. In November 2020 after one month of delivery of the vehicle the OP's No 2 and 3 again contacted the complainant and called him to come to the office and on reaching there OP's asked for Rs.10,000/- in cash for the registration of the vehicle. This clearly showed that the OP's No 1 to 3 did not apply for the registration certificate of the vehicle as well as the other documents till November 2020 due to the reason best known to them. The complainant, however, managed to pay his first instalment and is still willing to pay other instalments of the vehicle but just because of the default of the OPs in not handing over the documents of the vehicle, the complainant is not able to get work and earn money to pay the other instalments. OP No 4 is continuously threatening the complainant that it will take the possession of the vehicle for the non- payment of the instalment. Finding no way the complainant issued a legal notice  upon the OPs on 09.11.2020 after which they applied for the registration of the vehicle on 13.11.2020 as the complainant received the text message on his phone no. regarding registration No HR-37E-1688 but the OPs have not issued any documents to the complainant.  Now the OPs in connivance with each other are pressuring the complainant through OP No. 4 to pay the instalment, which is not feasible because in the absence of documents of the vehicle, he is unable to use the said vehicle.  Earlier also, similar complaint was file before this Commission numbered as CC/88/2021 and same was withdrawn with liberty to file the new one on 23.2.21. Hence this complaint.
3.           Upon notice, the OP No.1 appeared and filed written version wherein numerous preliminary objections were taken to the effect that the present complaint  is false, frivolous, vexatious, and has been filed with ulterior motive; this complaint is not maintainable; the complainant is not a consumer; this Commission is not vested with jurisdiction to decide this complaint etc. On merits, it has been stated that the entire transaction of complainant has taken place between OP No. 2 and 3 without any involvement of OP No.1, yet as per information gathered by OP No.1, the complainant had defaulted in making the complete payment of the vehicle in question and as such as per the understanding arrived at the time of the sale of the vehicle in question, the documents of the vehicle in question have been withheld by OPs No. 2 and 3. The complainant has made payments of Rs. 10,000/- and Rs. 50,000/-. An amount of Rs. 6,04,600/- was received by OPs No. 2 and 3 from Finance Company (M/s HBD Financial Services) of the complainant and as such Rs. 6,64,600/- in total was received from the complainant by OPs No. 2 and 3. It is also gathered that the vehicle in question was sold for Rs. 6,75,000/-, the charges of temporary No. of vehicle was charged as Rs. 500/- and the registration of vehicle charges (body + vehicle) were Rs 19,750 making the payable amount as Rs. 6,95,250/-. Thus the complainant had paid an amount of Rs. 30650/- in short and later issued a Cheque dated 02.12.2020 of Rs. 22,000/- against said liability and he also promised to pay the balance amount of Rs. 8650/- next month. However the said cheque issued by complainant was dishonored and the complainant did not pay amount of cheque or the balance amount of Rs. 8650/- and as such as per understanding of OP No. 1 the complainant was not liable to receive the documents without paying the balance/due amount. The complainant thus cannot be allowed to take benefit of his own wrongs. OP No.1 cannot be dragged in the present dispute of financial transaction of complainant with OPs No. 2 and 3 as the relation of OP No.1 (Manufacturer of the vehicle) with OPs No. 2 and 3 (Dealer of the Vehicle) is on principal to principal basis.Rest of the averments were denied by the OP No.1 and prayer has been made to dismiss this complaint with exemplary costs.
4.           Upon notice, OPs No.2 and 3 appeared and filed written version wherein numerous preliminary objections were taken to the effect  that the present complaint is based on frivolous facts and has been formulated on wrong facts and misleading facts and devoid of any merits;  the present complaint is not maintainable before this Commission as DOST PLUS LS HIGHDECK BS VI 2020 is commercial Vehicle and dispute is of commercial nature; the complainant has tried to misuse the power of this Commission which cannot be permitted at any cost; the present complaint is not maintainable; the complainant has not come to this Commission with clean hands and has suppressed the true and material facts; the  complainant has failed to disclose true facts before this Commission that he has already filed civil suit against the OPs No.2 and 3 which is pending before the Hon'ble Court of Ms. Nidhi Beniwal, C.J. (Junior Division), Ambala and the complainant can't seek the same relief in two different lis etc. On merits, it has been stated that   OP No. 2 is the managing partner of M/S PMG Motors and M/S PMG Motors is authorized dealer of OP No. 1 i.e. M/S Ashok Leyland. On 29-9-2020 the complainant approached the O.Ps to purchase the Ashok Leyland Dost Plus LS Highdeck BS-VI 2020. The said vehicle cost was Rs. 6,75,000/-, vide Invoice No. PMG/2020-21/28 dated 29-9-2020. Besides vehicle cost other cost i.e. RC and Body is Rs. 19750/- (5000+14750), Temporary Number is Rs.500/- and as such sub total is Rs.7,16,404/-. Complainant has taken loan from OP No. 4 and purchased the said vehicle . M/s PMG Motors received Rs.604600/- from M/S HDB Financial Service, and complainant had already paid Rs. 10,000/- at the time of booking, part payment of said vehicle Rs. 50,000/- on 21-9-2020 and balance payment of said vehicle Rs. 30650/- is still pending. Thereafter, the complainant issued post dated cheque of S.B.I. dated 02-12-2020 for Rs. 22000/- in favour of M/S PMG Motors to discharge the part of the above said liability and also assured that the said Cheque would be honoured on its presentation to bank and further promised to pay Rs. 8650/- i.e. balance amount, in cash on next month but the said cheque got dishonoured with the remarks "Funds Insufficient" vide Memo dated 14-01-2021. Complaint u/s 138 of N.I. Act is pending against the complainant in this regard. OPs No.2 and 3 are ready to handover the R.C. subject to clearance of the balance amount. OPs No.2 and 3 have already got registered the vehicle and there is neither Toll Free Pass scheme nor any assurance from the OP's. Further the complainant has concealed the true and material facts from the Commission that he already filed civil suit no. Cs/1746/2020 against OP no. 2 and 3 which is pending before Ms. Nidhi Beniwal, Civil judge, (junior Division), Ambala for 30-7- 2021. Rest of the averments were denied by the OPs No.2 and 3 and prayer has been made to dismiss this complaint with heavy costs.
5.           Upon notice, OP No.4 appeared and filed written version wherein numerous preliminary objections were taken to the effect that the complaint is not maintainable; the complainant has not approached this Commission with clean hands and has hidden correct facts; the complainant has no locus standi to file the present complaint;  the present complaint is bad for joinder, non joinder & mis joinder etc. On merits, it has been stated that  the complainant has approached OP No.4 for loan of Commercial vehicle in question and accordingly a written agreement was executed between the parties and an amount of Rs. 6,33,254/- was disbursed to the complainant vide loan no. 12553224 on 30.09.2020 repayable in 60 monthly Installment of Rs.16,307/- to be paid till 04.10.2025. Pursuant to the loan disbursement, the complainant has defaulted the installments of the loan amount. OP No.4 contacted the complainant many times and requested him to pay the defaulted amount, but the complainant did not adhere to the genuine request. As such, OP No.4 recalled the entire loan amount and a loan recall notice was duly sent to the complainant. As per the accounts maintained by OP No.4  in due course of business till 17.05.2022 an amount of Rs. 300,017/- is due towards the complainant. The complainant has suppressed the material fact about the other suit filed by him qua the same cause of action and between the same parties. In fact, the complainant has earlier filled a civil suit vide CS No. 439 of 2021 and the said suit is pending before the court of Sh. Vivek Yadav LD CJ Sr. Divn Ambala which was pending for 24.05.2022. The present dispute between the parties has already been referred to the arbitration tribunal as per the arbitration agreement in shape of arbitration clause in the loan agreement and OP No.4 has filed the claim statement before the Arbitrator. The claim statement filed before the Arbitrator has been decided and an Arbitration Award has already been passed in Favor of the OP No.4  on 21.12.2021 and the present complaint has been filed in the month of April 2022. As such, as per the law laid down by  the National Commission in Magma Fincorp Ltd Vs Gulzar ali NCDRC (New Delhi) 2016(2) C.P.J 231: RCR (Civil) and Instalment Supply Ltd. Versus Kangra Ex-service man Transport 2006(3) CPR 339 NC, now this complaint is not maintainable and liable to be dismissed on this ground alone. Furthermore, a bare perusal of the complaint clearly reveals that the claim and allegations of the complainant are against the manufacturer of the vehicle in question. However, if this Commission allows the complaint of the complainant against  OP No.1, in that eventuality the claim is to be paid to OP No.4 being the Hypothecate owner of the vehicle. Rest of the averments were denied by the OP No.4 and prayer has been made to dismiss this complaint with costs.
6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-18 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Dharmender Negi, TCSM, LCV Service/After Sales and Authorized Representative of OP No.1-Company-M/s Ashok Leyland Limited as Annexure OP-1/A alongwith documents as Annexure OP-1/1 and closed the evidence on behalf of the OP No.1. Learned counsel for the OP No.2 tendered affidavit of Vivek Sharma, Partner/Authorized signatory of M/s PMG Motors, Village Manglai, District Ambala as Annexure OP-2/A alongwith documents as Annexure OP-2/1 to OP-2/3 and closed the evidence on behalf of the OPs No.2 and 3. Learned counsel for the OP No.4 tendered affidavit of Rakesh Kumar, GPA Holder cum Legal Manager of OP No.4-Company-M/s HDB Financial Services Limited as Annexure OP-4/A alongwith documents as Annexure OP-4/1 to OP-4/6 and closed the evidence on behalf of the OP No.4.
7.           We have heard the learned counsel for the complainant and the learned counsel for the OPs No.1 to 3 and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that by neither supplying the documents pertaining to the vehicle in question by the OPs No.1 to 3, which resulted into its non-registration till date and on the other hand, the act of OP No.4 forcing the complainant to handover the vehicle in question because of non-payment of installments because the complainant could not ply the vehicle,  the OPs are deficient in providing service and indulged into unfair trade practice.
9.           On the other hand, learned counsel for the OP No.1 while reiterating all the objections taken in the written version and also the pleas taken therein, submitted that since the matter is admittedly subjudice before the Civil Court as such the present case is not maintainable before this Commission. He further submitted that   because the documents of the vehicle in question have been withheld by OPs No.2 and 3 therefore OP No.1 cannot be held responsible for that.
10.           On the other hand, learned counsel for OPs No.2 and 3 also while reiterating all the objections taken in the written version and also the pleas taken  therein,  also submitted that since the matter is admittedly subjudice before the Civil Court as such the present case is not maintainable before this Commission. He further submitted that since balance payment of Rs.30,650/-, of the said vehicle is still pending as such documents of the vehicle in question cannot be handed over to the complainant. He further submitted that even the cheque submitted by the complainant to discharge his liability stood dishonoured on account of insufficient funds in his account. 
11.           Before going into the merits of this case, the moot question which falls for consideration is, as to whether, the present complaint is maintainable before this Commission or not. It may be stated here that in the present case, it has not been disputed by the complainant that NACT/120 of 2021 titled as M/s PMG Motors Vs Suresh Kumar in the Court of Sh.Ajay Kumar, Judicial Magistrate, 1^st Class, Ambala and also Cs/1746/2020 tilted as Suresh Kumar Vs Mukesh Kumar in the Court of Civil Judge (Junior Division) Ambala, in respect of the dispute in question, which has been filed by the complainant himself against the OPs are pending adjudication.  Even Cs/1746/2020 tilted as Suresh Kumar Vs Mukesh Kumar in the Court of Civil Judge (Junior Division) Ambala, has been previously heard before that Court on 15.01.2021 also, meaning thereby that  this civil case is pending adjudication even prior of filing of this consumer complaint before this Commission on 23.02.2021.  Similar  reliefs i.e. delivery of registration certificate of the vehicle in question; fast tag for one year; number plate; starting key of vehicle; original documents or duplicate papers of vehicle; compensation; permanent injunction restraining HDB Finance etc. which have also been sought in this consumer  complaint, have been sought by the complainant in these civil cases. If that is so, we have no hesitation to hold that this Commission has no jurisdiction to entertain and decide this complaint, proceedings before which are summary in nature, and, especially, when  two civil court cases are pending adjudication on the same subject matter. This Commission also did not vest with jurisdiction to entertain the present complaint because two parallel remedies  simultaneously in the matter cannot be permitted. Our these findings locate support from the law laid down by the Hon’ble National Commission Dr.Dinesh Vs. Swastic Builders and Ors. (2002) 1 CPJ 60 wherein it was held that when a civil suit is pending on the same subject matter, jurisdiction of consumer commission are barred, as jurisdiction of civil courts is more comprehensive.  Similar view was taken by the Hon’ble National Commission in Special Machines, Karnal v. Punjab National Bank & Ors., as reported in I (1991) CPJ 78 and also by the Hon’ble State Commission, Madhya Pradesh in Danish Grih Niram Sahakari Samiti Vs. Anurag Seth, (2006) 4 CPJ 393.
12.           For the reasons recorded above, this complaint stands dismissed with no order as to cost, being not maintainable before this Commission. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 02.01.2024.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President