Complaint No: 191 of 2019.
Date of Institution: 10.06.2019.
Date of order: 01.03.2024.
Sobha Singh aged about 55 years Son of Sh. Surat Singh, resident of Village Rangar Pindi, Post Office Behrampur, Police Station Behrampur, Tehsil and District Gurdaspur. Aadhaar Card No. 6318 2191 2707.
…........Complainant.
VERSUS
1. M/s. Shriram Transport Finance Company Ltd., Registered Office at 101-105, 1st Floor, B Wing, Shiv Chamers, Sector – 11, C.B.D. Belapur, Navi Mumbai – 400614, through its Managing Director.
2. M/s. Shriram Transport Finance Company Ltd., Branch Office at 1st Floor, Plot No. 8/20, Improvement Trust Colony, Scheme No. 1, Batala Road, Near Honda Agency, Gurdaspur, through its Branch Manager.
….Opposite parties.
Complaint Under Section 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.B.S. Dhakala, Advocate.
For the Opposite Parties: Sh.Vinod Harchand, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sobha Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against M/s. Shri Ram Transport Finance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is registered owner of the Truck make TATA LPT 2518 bearing Registration No.PB-06-N-2298, Model 2011. The complainant purchased the above mentioned vehicle exclusively for earning his and his family members livelihood and maintenance. It is pleaded that in the month of June 2017, the complainant applied for vehicle loan on his above mentioned vehicle from the opposite parties of amounting to Rs.11,00,000/- vide loan agreement No. GURDS0706290004. At the time of advancement of loan the matter was amicably settled between the complainant and the opposite parties that the said loan amount will be repayable in 60 monthly installments of Rs.26,000/- per month each. The opposite parties had also received blank signed cheques from the complainant and had obtained his signatures on certain blank papers / documents for the purpose of documentation in respect of said loan. The complainant had been making payments of monthly installments to the opposite parties regularly from time to time and Rs.11,54,858/- had already been paid upto dated 25.05.2019 to the opposite parties by the complainant in the shape of monthly installments. It is further pleaded that on dated 18.05.2019, some officials of the opposite parties namely Avtar Singh and Sonu alongwith other Gundas or uncivilized persons in connivance with the opposite parties snatched the above detailed vehicle of the complainant alongwith relevant documents and forcefully obtained some signatures of the complainant on some blank papers in the area of District Pathankot. This act on the part of the opposite parties is illegal, null and void, and against the rules and natural justice. It is further pleaded that thereafter the complainant immediately approached the office of the opposite parties and demanded the explanation for unwarranted and uncalled act of their employees regarding snatching of vehicle in question. The officials of the opposite parties told to the complainant that the regular monthly installments of the complainant have been defaulted and there is outstanding amount of Rs.97,559/- in the loan account of the complainant and due to that reasons the opposite parties have snatched the vehicle in question from the complainant. It is further pleaded that the complainant offered to the opposite parties to clear his outstanding loan amount and requested to release the vehicle in question as it is the only source of earning and livelihood of the complainant, but the opposite parties flatly refused to release the vehicle in question and told to the complainant that they did not want to continue any dealing with the complainant anymore and if the complainant wants to get back the vehicle in question from them, then he had to pay whole remaining loan amount to the opposite parties which is very excess amount as alleged by them i.e. Rs.11,00,000/-. It is pertinent to mentioned here that the complainant has already paid monthly installments of amounting to Rs.11,54,858/- upto dated 25.05.2019 and still ready to return genuine outstanding amount in monthly installments. It is further pleaded that on the very next day i.e. on dated 19.05.2019 the complainant again visited the office of the opposite part No. 2 for making the outstanding installments of loan amount, but the opposite party again demanded Rs.11,00,000/- in one time, which was not possible for the complainant to pay this huge amount in one installment. Then, the complainant reported the matter to the area Police Station where the vehicle was snatched by the opposite parties i.e. to the Station House Officer of Police Station Sadar Pathankot on dated 19.05.2019 regarding illegal act and conduct of the opposite parties and the application of the complainant was marked to ASI Rajesh Kumar by S.H.O. vide endorsement and dispatched No. 361/PS Sdr Ptk for investigation and he called the employees of the opposite parties so many time, but till date the opposite parties have not joined the investigation. It is further pleaded that now the opposite parties has sent a Notice without any date to the complainant, which was received by the complainant on dated 28.05.2019 and vide the said notice, the opposite parties are threatening to alienate the vehicle in question against the will and wishes of the complainant. On the other hand, the complainant is requesting to the opposite parties to get the outstanding default loan amount from him and release the vehicle, but the opposite parties are not paying any heed to the genuine requests of the complainant and are adamant on their earlier illegal demand. So, there is a clear cut deficiency on the part of the opposite parties and the complainant is entitled to take back his vehicle from the opposite parties. It is further pleaded that thereafter the complainant served a Legal Notice to the opposite parties requesting them to deliver the vehicle in question to him on the same terms and conditions as it was at the time of taking into possession the vehicle in question by the opposite parties illegally and forcibly and to continue the previous loan on the same terms and condition by taking default installments amount of Rs.97,559.57/- from the complainant, but of no use. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to deliver the vehicle in question to the complainant on the same terms and conditions as it was at the time of taking into possession by the opposite parties illegally and forcibly and further directions may also be issued to the opposite parties to continue the previous loan on the same terms and condition by taking default installments amount of Rs.97,559.57/- from the complainant and the complainant may also be awarded compensation to the tune of Rs.1,00,000/- for the mental torture, physical harassment and financial loss caused by the opposite parties by snatching the vehicle illegally, forcibly and without any order of the Hon'ble Court and by not delivering possession of vehicle in question to the complainant despite repeated requests made by the complainant and the opposite parties may also be directed to pay Rs.20,000/- to the complainant for litigation expenses which the complainant has incurred due to the illegal act and conduct of the opposite parties. The complainant may kindly be granted any other relief to which he is legally and equitably entitled to as per the facts and circumstances of the case. This may be done for the sake of brevity and justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable in the present form and the complainant has not come to the Ld. Commission with clean hands and also the complainant has concealed the true and material facts in the present complaint from the Ld. Commission. It is pleaded that the complainant has filed the present complaint in order to harass the officials of the answering OP’s and drag them into unwanted litigation. This Ld. Commission has got not jurisdiction to try and entertain the present complaint as there is an agreement of Arbitration between the parties, to raise all the disputes, issues and differences between the parties, before the arbitrate and this Ld. Commission has got not jurisdiction to try and entertain the present complaint as the vehicle in question has been purchased by the complainant for commercial purpose and earning profits only. It is further pleaded that the fact of the matter is that the complainant is plying the vehicle in question for commercial purpose and earning profits only. Further that, the complainant was sanctioned a loan amount of Rs.11,00,000/- on dated 30.06.2017 vide the said loan cum Hypothecation agreement, agreed to be returned by the complainant in 60 monthly equal installments. It is further pleaded that the complainant has defaulted in the payment of due loan installments and an amount of Rs.12,14,402/- is due against the complainant upto dated 09.08.2019. It is further pleaded that the complainant had himself surrendered the vehicle in question to the answering OP’s and duly signed the vehicle inventory and clerking sheet to sell the same in open auction as he has shown his in ability to clear the remaining due loan installments. It is further pleaded that the complainant had deposited only Rs.6,56,858/- upto dated 09.08.2019 and an amount of Rs.12,14,402/- is still due against the complainant upto dated 09.08.2019. It is further pleaded that the complainant is not entitled for any compensation or any alleged amount from the answering opposite parties as falsely alleged in this present complaint and there is no any kind of deficiency in service on the part of the answering opposite parties and the present complaint of the complainant is liable to be dismissed.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Sobha Singh, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-7.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Satish Kumar, (Retainer Advocate and Special Power of Attorney of M/s. Shri Ram Transport Finance Co. Ltd., Gurdaspur) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-8 alongwith reply.
6. Rejoinder filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant had obtained vehicle loan from the opposite parties in June, 2017 and the said loan was repayable in 60 installments of Rs.26,000/- per month each. It is further argued that complainant had made payment of Rs.11,54,858/- upto 25.05.2019. The officials of the opposite parties forcibly snatched the vehicle alongwith documents and obtained the signatures of the complainant on blank papers. It is further argued that that complainant had many times approached the opposite parties that he is ready to deposit the outstanding amount of Rs.97,559/- but the opposite parties have refused to accept the amount. Complainant had also reported the matter to the police but nothing has come out. In the end counsel for the complainant has argued that opposite parties be directed to deliver the vehicle in question to the complainant and be issued directions to continue the previous loan on the same terms and conditions by taking default installments of Rs.97559.57 from the complainant.
9. On the other hand counsel for the opposite parties has argued that upto 09.08.2019 complainant had deposited only Rs.6,56,858/- and amount of Rs.12,14,402/- is still pending against the complainant. It is further argued that complainant had himself surrendered the vehicle and as such the present complaint being false is liable to be dismissed. It is further argued that during the pendency of present complaint arbitration award has been passed on 25.11.2020 and as such this commission has no jurisdiction to entertain the present complaint.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his affidavit Ex.C1, copy of statement of account Ex.C2, copy of route permit Ex.C3, copy of police complaint Ex.C4, copy of auction notice Ex.C5, legal notice Ex.C6 and post receipt Ex.C7 whereas opposite parties have placed on record affidavit of Satish Kumar Retainer Advocate and Special Power of Attorney Ex.OP-1, copy of power of attorney Ex.OP-2, copy of hypothecation agreement Ex.OP-3, statement of account Ex.OP-4, copy of vehicle inventory Ex.OP-5, copy of notice Ex.OP-6, copies of postal receipts Ex.OP-7 and Ex.OP-8.
12. It is admitted fact that complainant had availed loan of Rs.11,00,000/- from the opposite parties on 30.06.2017 vide hypothecation agreement and the said loan was to be returned in 60 monthly equal installments. It is further admitted fact that vehicle has been repossessed by the opposite parties. The only disputed issue for adjudication before this Commission is whether the repossession of the vehicle is unjustified and complainant is entitled to receive back vehicle alongwith compensation alongwith compensation.
13. Perusal of statement of account Ex.OP-4 shows that complainant had deposited last installment of Rs.26,000/- on 05.08.2019 and total due payment payable by the complainant is Rs.9,37,851/-. The vehicle has been repossessed by the opposite parties vide Ex.OP-5 which is duly signed by the complainant alongwith the inventory which shows that complainant was not able to repay the loan amount and had voluntarily handed over the vehicle to the opposite parties. Although, it is the plea of the complainant that complainant had lodged police complaint Ex.C4 on 19.05.2019 alleging snatching of the vehicle but perusal of file shows that as to what action was taken by the police has not been mentioned by the complainant. Since the complainant has himself failed to pay the due amount to the opposite parties as per hypothecation agreement, as such complainant was required to deposit to deposit due installments with the opposite parties. Perusal of file shows that opposite party has placed on record copy of award of the arbitrator which is being marked as Ex AZ which has been passed on 25.11.2020 but the complainant has concealed the said facts from this commission. But since the award has been passed in the matter and although the said award is exparte but the complainant has got the option to get the said exparte proceedings set aside but instead of doing so, the complainant has filed the present complaint and further persuing the matter with this commssion without any cause of action and by concealment of facts, which is not permissible under law.
14. We have also placed reliance upon the Judgment of Honáble supreme court of India in SLP © 18339 titled as M/s TATA Finance Ltd vs Raju Dutta & others where in it has been held as under :-
"It may be mentioned here that as per the agreement entered into between the parties, it was stipulated that in the case of dispute between the parties, the matter could be referred to an Arbitrator. It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred. It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the Consumer Fora, this will lead to contradictory judgments as has been done in this case. The order passed by the Fora below in this case is not legally tenable. The Fora below have wrongly arrogated to themselves the power, which these Fora did not possess. In case, the petitioner has got any objection against the Arbitrator, he should challenge the award before the higher Court, as per Law. The question whether the complainant was served in this case, whether the award passed by the Arbitrator is correct or not, all these questions do not come in the ambit of power of the Consumer Commission. …” Mr. Bedi further submitted that Special Leave Petition (Civil) No.33307 of 2015 titled as “Gulzar Ali v. M/s. Magma Fincorp Ltd.” filed against the aforesaid decision of the National Commission was dismissed by this Court on 02.11.2015. If according to respondent no.1, he was not served with any notices and the proceedings in arbitration had gone ahead ex parte, it was open to him to avail of the remedies available under the Arbitration Law but the proceedings in arbitration could not directly or indirectly be commented upon or challenged before the Consumer Forum".
15. From the above discussion and case law cited above we are of the view that present complaint is not maintainable before this commission in view of the fact that matter in hand has already been decided by Sole Arbitrator, vide its Award dated 25.11.2020. As such the present complaint is dismissed. No order as to costs.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March. 01, 2024 Member.
*YP*
