Date of filing : 15.06.2012
Notice served on O.P.1: “Absent as no
such addressee
till the date of
final hearing”.
Notice served on O.P.2: 16.08.2012
Notice served on O.P.3: 07.09.2012
Notice served on O.P.4: 07.09.2012
Notice served on O.P.5: 07.09.2012
Order Date: 25.04.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I CHITTOOR
Present:- Sri M. Anand, B.A., LL.B., President
Sri N.S. Kumaraswamy, B.Sc., LL.B., Male Member
Friday, the (25th) Twenty Fifth day of April, Two thousand and fourteen
C.C.No. 35 / 2012
Between:
Sri.T.Mohan Naidu, S/o T.Peddabba Naidu, aged about
51 years, Hindu, Business, Residing at V.N.Kandriga
Village, Gudipala Post and Mandal, Chittoor District.
….. Complainant
And:
- M/s Tata Capital Ltd., Rep. by its Branch Manager,
D.No.20-453, Sri Balaji Complex,Opp. Raghava
Theatre, Chittoor Town & District.
- M/s. Tata Capital Ltd., Rep. by its Branch Manager,
1st Floor, Akhil Plaza, Opp. Current Office, Postal
Colony, Nellore District.
- M/s. Tata Capital Ltd., Rep. by its Branch Manager,
Renigunta Road, Tirupati, Chittoor District.
- M/s. Tata Capital Ltd., Rep. by its Branch Manager,
P.No.3 to 6, Auto Plaza, Opp.Times of Inida,
Road No.3, Banjarahills, Hyderabad – 500034
- M/s. Tata Capital Ltd., Rep. by its Branch Manager,
One forbs Dr.V.B.Gandhi Marg Fort, Mumbai,
Pincode- 400 001.
….. Opposite Parties
This complaint coming on before us for final hearing on 11.04.2014 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri C.K.Raghu counsel for the complainant and 1st Opposite party called absent till the date of final hearing and Sri V.R.Ramakrishna, counsel for the opposite party No. 2 to 5 and having stood over till this day for consideration, the Forum made the following:-
ORDER
DELIVERED BY Sri N.S. KUMARASWAMY, B.Sc., LL.B., MALE MEMBER
ON BEHALF OF BENCH
This is a complaint filed U/Sec.12 of C.P. Act, 1986 directing the opposite parties to issue NOC of the Hitachi Earth Mover of Tata Ex-Covator and also to return all the documents of the complainant including the cheques and to pay damages Rs.10,00,000/- towards negligence and deficiency of service with interest at 9% p.a. and to pay Rs.10,00,000/- towards physical and mental sufferings and for costs.
2) The brief averments of the complaint are that:- The complainant is an Ex-Servicemen. In order to make self-employment, he intended to purchase a new Hitachi Earth Mover of Tata Ex-Covator model Ex200. Accordingly the complainant purchased said vehicle on execution of Loan cum Hypothecation cum Guarantee Agreement with the 2nd Opposite party on 20.06.2008 for a sum of Rs.42,71,530/-. The complainant paid Rs.10,73,133/- towards advance of vehicle loan, apart from that of Rs.57,000/- also paid. The complainant alleged that Opposite parties 1 to 3 collected an amount of Rs.1,00,000/- excessively from him which was not accounted. He further contended that after receipts of amounts from him the remaining amount was financed by the Opposite parties. At the time of agreement the 1st Opposite party collected several signatures of him in a blank papers and also 36 blank signed cheques belongs to the Syndicate Bank, Chittoor. The complainant further alleged that without giving payment schedule the Opposite parties orally stated that the finance amount has to be paid in 36 monthly installments for a period of 3 years commencing from 03.09.2008 at the rate of Rs.1,14,000/- per month. The complainant also alleged that even though he paid installments regularly to the Opposite parties 1 to 3, giving troubles very frequently like inspection of vehicle, days together retain the vehicle. Vexed with the acts of Opposite parties, the complainant made a proposal of one time settlement of payment with the Opposite parties and accordingly after acceptance of proposal of premature termination of loan, complainant paid Rs.30,10,000/- towards full and final settlement of the loan account to the Opposite parties for issuing NOC and other related documents. The complainant further alleged that the Opposite parties did not return NOC and other documents even though they received full amount as per their premature settlement. The complainant stated that upon insisting the Opposite parties issued a letter dt:17.05.2010 wherein they confirmed that NOC will be issued within 60 days from the date of receipt of amount. As the Opposite parties did not furnish NOC and other documents inspite of several demands, the complainant got issued legal notice dt:02.04.2012 calling upon the Opposite parties to issue NOC along with payment of damages etc., in turn the Opposite parties replied on dt:10.04.2012 with all sorts of false allegations to escape from their liability. Hence the complainant is forced to file the present complaint against the Opposite parties for negligence and deficiency of service.
3) The 1st Opposite party called absent till the date of orders reserved and no representation on behalf of the 1st Opposite party. The Opposite parties 2 to 5 filed objections denying all the allegations alleged in the complaint except that of the complainant purchased a new Hitachi Earth mover of Tata Ex-Covator from the 2nd Opposite party at Nellore under Loan cum Hypothecation cum Guarantee agreement after obtaining financial assistance from the 2nd Opposite party which was sanctioned on dt: 25.06.2008 but not on dt: 20.06.2008 as stated by the complainant.
4) Opposite parties further contended that the complainant purchased the said vehicle for commercial purpose as he is a dealer of Tires and Tubes for the vehicles of various companies and also he is having Granite Quarries and cutting and polishing business. The Opposite parties further denied the contention of complainant about the purchase of said vehicle for self-employment. Further the Opposite parties also denied that they are giving troubles to the complainant frequently by taking the vehicle back and kept it an idle. Opposite parties stated that the complainant is a chronic defaulter in payment of installments which was shown through Cardex-I and II (Ex.B3 & B4) in which contract details and particulars of payments entered for the purpose of establishing their case. As the complainant failed to pay the installments, the Opposite parties initiating procedure to reposses the vehicle after following due procedure. During that period the complainant came forward for a settlement proposal and requested for termination of loan account permenantly. The Opposite parties further stated that they have accepted the proposal of premature settlement as desired by the complainant subject to the condition of payment of Rs.34,60,439-75/- for termination of loan account. Since the complainant paid only Rs.30,10,000/- contrary to the premature settlement, the Opposite parties refused to issue NOC and other related documents. Consequent on that, the complainant filed a complaint before this Forum for deficiency of service on the part of Opposite parties by suppressing the facts of proposal and default in payment of balance amount. Further the Opposite parties stated that 2nd Opposite party issued a letter dt:17.05.2010 confirming that NOC will be issued within 60 days from the date of receipt of all pending arrears but the complainant filed the said letter with material alterations to get wrongful gain. But the 2nd Opposite party is ready to issue NOC subject to the clearance of arrears. Hence there is no deficiency of service on their part since the complainant did not pay the arrears of amounts as per the proposal made between them.
5) The Opposite parties further contended that this Forum has no territorial jurisdiction as the complainant entered into Loan cum Hypothecation cum guarantee agreement at Nellore Branch only on 25.06.2008. Subsequently certain payments were also made at Nellore Branch. Further no notice was served to 1st Opposite party as there was no Branch Office at Chittoor. Hence as per Sec.17 (2) of C.P.Act, the complainant has to file a case before District Consumer Forum, Nellore as the entire transactions made at Nellore.
6) Further the Opposite parties stated that the vehicle was purchased by the complainant for the purpose of commercial. Since it was purchased for commercial purpose, the complainant cannot be termed as a consumer. Apart from that as per agreement any disputes between the parties must be referred to Sole Arbitrator. As such the complaint is not maintainable on the grounds stated supra. Hence the complaint is liable tobe dismissed against the Opposite parties 2 to 5 as there is no territorial jurisdiction to file a case in this Forum as well as complainant is not a consumer.
7) The points for consideration would be:
- Whether this Forum has got territorial jurisdiction to entertain the complaint?
- Whether the complainant is a consumer or not as per Sec.2(1) (d) of the Act?
- Whether there is deficiency of service on the part of opposite parties 2 to 5 for not issuing NOC of the vehicle and also to return the documents including the cheques? If so, whether the complainant is entitled in respect of the reliefs as claimed for in the complaint?
- To what relief?
8) On behalf of the complainant, Chief Affidavits of PWs.1 to 3 filed and marked Ex.A1 to A8 documents and on the other hand the opposite parties 2 to 5 filed evidence on Affidavit as RW-1 and marked Ex.B1 to B9 documents. Both parties filed their written arguments.
9) Heard the arguments on behalf of counsel for the complainant and also counsel for the Opposite parties 2 to 5.
10)Point No.1: It is an admitted fact that complainant obtained Loan and purchased Hitachi Earth Mover of Tata Ex Covator after entering into the Loan cum Hypothecation cum Guarantee Agreement with the 2nd Opposite party and certain payments made to the 2nd Opposite party at Nellore Branch.
11) The Opposite parties 2 to 5 raised an objection that District Consumer Forum-I Chittoor, has no jurisdiction to try the present case since there was no branch office of 1st Opposite party at Chittoor and no transactions made between the complainant and 1st Opposite party at the time of execution of Loan cum Hypothecation cum Guarantee Agreement and also no repayments as per schedule. The entire transaction made by the complainant with the 2nd Opposite party at Nellore Branch.
12) In reply the complainant advanced arguments alleging that he has issued legal notice on 02.04.2012 to all the Opposite parties including 1st Opposite party who has Branch office at Chittoor and the Opposite parties replied in this legal notice dt.10.04.2012, did not choose to dispute the existence the office of 1st Opposite party at Chittoor and further Cause of Action arose at Chittoor since entire transactions took place at 1st Opposite Party office including repayment amounts. Further alleged that the letter dt.17.05.2010 given by the Opposite parties carries the fax number at Chittoor town which also discloses that Cause of Action arose at Chittoor and since the Cause of Action arose at Chittoor, the District Consumer Forum-I, Chittoor is having Territorial Jurisdiction to try the instant case.
13) The Opposite parties 2 to 5 relied upon decision reported in 2010 CTJ, Page 2 SC (CP) between Sony Surgicals Vs. National Insurance Company Limited., wherein it was held that:
“The Learned counsel for the appellant submitted that the respondent-Insurance Company has a Branch Office at Chandigarh and hence under the amended Section 17(2) the complaint would have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended section 17(2)(b) of the Act, which does not lead to absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if cause of action has arised in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Guwahati or anywhere in India where a Branch Office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequence and lead to bench hunting. In our opinion, the expression “Branch Office” in the amended Section 17(2) would mean of the Branch Office, Where the Cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act, but such departure is sometimes necessary (as it is in this case) to avoid absurdity (vide G.P.Singh’s Principles of Statutory Interpretation Ninth Edition 2004 page 79). In the present case, since the cause of action arose at Ambala, the State Consumer Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint”. In view of the above decision, it is very clear that the complainant has to file the complaint where the cause of action arose. As per Sec.11 of Consumer Protection Act, 1986 the complainant has to file the complaint only where the opposite party is residing or carry on business: or the cause of action, wholly or in part arises. |
14) The above case is clearly applicable in the instant case. On perusal of the records and the complaint, disclosed that this Forum issued registered notices to Opposite party No.1 at Chittoor which was returned as undelivered with an endorsement as “No such addressee” in Chittoor town, and thereafter publication was made in the local paper for his appearance on 19.12.2012 and on the said date, the 1st Opposite party called absent, till the date of orders reserved and no representation on behalf of 1st Opposite party. Hence it is very clear that 1st Opposite party has no Branch Office at Chittoor and for the purpose of jurisdiction, 1st Opposite party added as a party to the proceedings which is nothing but Bench Hunting as per decision of Hon’ble Apex Court. The complainant except self-serving statement, no cogent evidence placed before this Forum as to the correspondence made through 1st Opposite party at Chittoor as per agreement. Further it is also revealed that the 2nd Opposite party has advanced the loan amount to the complainant on execution of loan cum hypothecation cum guarantee agreement at Nellore as per Ex.B2 which encloses Annexure-I (Ex.B7) wherein Ex.B7 contains “place of agreement held at Nellore on dt:23.07.2008” and the 2nd Opposite party carried on business at Nellore and at Nellore a separate District Forum has been established. Therefore, the complainant has to file the complaint against the Opposite parties 2 to 5 at Nellore only but not at Chittoor District Forum-I. Further the Opposite parties also raised an objection that there is a clause “If any disputes between the parties with regard to transactions must be referred to sole arbitrator as per agreement”. In this context it has been clearly established in Sec.3 of C.P.Act 1986 intended to provide an additional remedy to a party inspite of availability of an alternative remedy under the Arbitration Act. If a party chooses to file a complaint before Consumer Fora, he cannot be denied such a remedy from where territorial jurisdiction lies. In the instant case the territorial jurisdiction lies at District Forum, Nellore in which place the said case has to be filed.
15) Therefore on considering the said facts and circumstances as stated supra, the complaint filed by the complainant before this Forum is not maintainable as this Forum has no jurisdiction to entertain the same. Accordingly this point is answered.
16)Point No.2:-The Opposite parties 2 to 5 also raised an objection that the complainant is an Ex-Servicemen from Indian Army, getting pension apart from that he is doing several businesses such as Dealer in Tires & Tubes for the vehicles of various companies and also having Granite Quarries and Polishing Export Business. To meet the business needs he purchased Hitachi Earth Mover of Tata Ex-Covator with the financial assistance of 2nd Opposite party under loan cum hypothecation cum guarantee agreement for commercial purpose but not for self-employment. Hence the complainant is not a consumer, since his vehicle was purchased for commercial purpose which was mentioned in Annexure-I (Ex.B7) and the said Annexure-I was signed by both parties.
17) On the other hand, the complainant advanced arguments to the above objections stating that the vehicle was purchased for his individual purpose and said the objection is not at all maintainable under Law as the question of purchase of vehicle is not an issue in the present case and the point for consideration is only with regard to whether the Opposite parties under took to handover the NOC and other documents to the complainant within 60 days or not and whether there is deficiency in service or not?
18) We have examined the entire material and given thoughtful consideration for arguments advanced before us for the question whether the complainant is a consumer or not? as per Sec.2 (1) (d) of Consumer Protection Act, 1986.
19) It is very clear in the definition of “Consumer” under section 2(1)(d) of C.P.Act, 1986 i) “buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
ii) hires or avails of any services for a consideration which has been paid or promised, or partly paid or promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
Explanation: for the purpose of this clause, “Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
20) In this aspect, the Hon’ble Supreme Court have observed in their order passed in Laxmi Engineering Works Vs. PSG Industrial Institute, as reported in II (1995) CPJ 1 (SC) =1995 AIR SC 1428, that a person who purchases an auto rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by any person could not be a consumer”.
21) Further the counsel for Opposite parties also relied on the decision passed in Western India State Motors Vs. Sobhag Mal Meena & Others reported in F.A.No.12/89 decided on 08.11.1989 by the National Consumer Dispute Redressal Commission, New Delhi wherein the Hon’ble Members observed “Under Sec.2 (1) (d)- Consumer – Plying Taxi- plying of taxi for hire is clearly a commercial purpose and the purchase of vehicle made specifically for being used as a taxi is a purchase made for commercial purpose. Complainant before the State Commission was not a consumer and the State Commission should have rejected the petition on that short ground”.
22) In the present case, the above decisions are clearly applicable. Admittedly the complainant had purchased Hitachi Earth Mover of Tata Ex -Covator with the financial assistance of 2nd Opposite party under Loan cum Hypothecation cum Guarantee agreement. On verification of loan cum hypothecation cum guarantee agreement which encloses with Annexure-I (Ex.B7) wherein serial no.3, disclosed in “details of purchase asset”, it was found that, complainant mentioned as, the said purchase was for “Commercial purpose”. He has not been able to show how he can qualify to come under the definition of consumer under the Act, when he has not given any clarification about the use of operation of the said Tata Ex Covator. Nowhere the complainant pleaded in the pleadings that the said vehicle is used for the purpose of earning his livelihood by means of self-employment. No rebuttal evidence placed by the complainant for the objections raised by the Opposite parties. Hence, it is clearly established through loan cum hypothecation cum guarantee agreement Annexure-I (Ex.B7) which was signed by both parties that the said Hitachi earth mover of Tata Ex-covator was purchased for commercial purpose. Apart from that Opposite parties placed bonafide proof through Central Sales Tax Registration Certificate (Ex.B8) and Value Added Tax Registration Certificate (Ex.B9) that the complainant is a businessman. The complaint therefore deserves to be dismissed on the said ground alone that the complainant does not fall within the definition of “Consumer” as per C.P. Act, 1986. Accordingly point no.2 is answered.
23) In this aspect, it is very significant to make a note herein that lack of territorial jurisdiction and also not attracting the provisions of section 2 (1)(d) of C.P. Act, 1986 extinguished the claim of complainant. There is no convincing explanation to rebuttal the evidence of Opposite parties 2 to 5.
24) In view of discussions and decision taken at our end from the points 1 and 2, no need to proceed further to go into the merits of the case of point no.3. Hence, the complainant is not entitled for any relief as prayed for in the complaint and is liable to be dismissed.
Point No.4:- Accordingly the complaint is dismissed and that there shall be no
Order as to costs.
Typed to dictation to the Stenographer, transcribed by her and pronounced by us in the open Forum this the 25th day of April, two thousand and fourteen.
Sd/- Sd/-
Male Member President
APPENDIX OF EVIDENCE
ON BEHALF OF THE COMPLAINANT
ORAL EVIDENCE/AFFIDAVITS:
PW-1:- Chief Affidavit of the complainant Sri.T.Mohan Naidu
PW-2:- Evidence on Affidavit of Sri. M.Gunasankar Naidu,S/o M.Kuppaiah Naidu,
R/at Battuvallavooru Village, Gudipala Post & Mandal, Chittoor District.
PW-3:- Evidence on Affidavit of Sri.T.Yoganadha Naidu, S/o T.Sreenivasulu
Naidu, R/at V.N.Kandriga Village, Gudipala Post & Mandal, Chittoor
District.
DOCUMENTS:
Ex.A1:- Dt: 12.06.2008 – Proforma Invoice issued by Opposite party.
Ex.A2:- Dt: 05.06.2008, 23.06.2008 & 30.06.2008 – Syndicate Bank Pay-In slips
for the amounts paid to the Opposite parties Rs.9,89,377, Rs.83,756,
Rs.57,000/-.
Ex.A3:- Dt: 25.06.2008 – Transport charges receipt paid by Complainant
Ex.A4:- Dt: 08.04.2010 – Two D.D’s for Rs.16,60,000/- and Rs.13,50,000/- paid
By the complainant to Opposite parties.
Ex.A5:- Dt: 17.05.2010 – Letter issued by Opposite parties to complainant stating
NOC will be issued within 60 days.
Ex.A6:- Dt: 12.04.2010 – Letter issued by Opposite parties to complainant about
Receipt of amount towards overdue settlement.
Ex.A7:- Dt: 02.04.2012 – Office copy of Legal Notice with postal receipt issued by complainant to Opposite parties.
Ex.A8:- Dt: 10.04.2012 – Reply notice issued by opposite parties to Complainant.
APPENDIX OF EVIDENCE
ON BEHALF OF THE OPPOSITE PARTIES
ORAL EVIDENCE/AFFIDAVITS:
RW-1:- Chief Affidavit of Y.Shyam Prasad, S/o Venkataramana, Authorized
Person, working as Legal Remedial Executive, Office at Hyderabad.
DOCUMENTS:
Ex.B1:- Dt: 12.08.2011 – Copy of Authorisation.
Ex.B2:- True copy of Loan cum Hypothecation cum Guarantee Agreement.
Ex.B3:- Dt: 11.10.2012 – Cardex-I
Ex.B4:- Dt: 11.10.2012 – Cardex-II
Ex.B5:- Dt: 10.04.2012 – Reply notice.
Ex.B6:- Dt: 17.05.2012 – True copy of Letter to the complainant.
Ex.B7:- Dt: 23.07.2008 – True copy of Loan Agreement Annexure-I.
Ex.B8:- Dt: 31.05.2008 – True copy of Central Sales Tax Registration Certificate
issued to Sri.M/s Tirumala Mohan Naidu.
Ex.B9:- Dt: 31.05.2008 – True copy of VAT Registration Certificate issued to
Sri.M/s Tirumala Mohan Naidu.
Sd/- Sd/-
Male Member President
Copies to:
1. The Complainant.
2. The Opposite Party 2 to 5.
