Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.21/25.01.2019
Shri Vishram Singh s/o Sh. Pargan Singh
R/o H. No. 2687, Gali No. 28, Tuglakabad Ext.
South Delhi-110019 …Complainant
Versus
Sh. Narinder Pal Singh, Proprietor/Authorized Signatory
M/s Cucu Auto Centre,
1826/51, Naiwala, Abdul Aziz Road, Karol Bagh,
New Delhi-110005 ...Opposite Party
Date of filing: 25.01.2019
Coram: Date of Order: 22 02.2024
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services, unfair trade practice besides threatening to him by the OP. The complainant took the loan against his vehicle, however, despite payment of the amount, the OP failed to issue no dues/objection certificate in respect of vehicle bearing registration no. DL1R-P-7472 (hereinafter referred ‘the vehicle’). That is why the complaint against OP for direction for no dues/objection certificate, for restrain order not to snatch the vehicle from the complainant, to provide appropriate document/agreement, compensation of Rs. 1 lakh, cost and expenses of litigation besides other appropriate relief.
1.2. The complaint has been opposed by the OP that there is no cause of action and complaint was filed to avoid repayment of loan liability, since the complainant failed to return the loan amount but complaint has been filed under the garb of deficiency of services or unfair trade practice. Moreover, as per clause-24 of the agreement, the matter is to be referred to the named Arbitrator, thus the Consumer Forum lacks jurisdiction on the subject matter of the complaint.
2.1. (Case of complainant) – Complainant Sh. Vishram Singh filed this complaint under the Consumer Protection Act, 1986 against Sh. Narender Pal Singh, proprietor/authorized signatory of M/s Cucu Auto Centre, who represented a non-banking financial institute, dealing with financial facility of hire purchase of TSR vehicle.
The paragraphs-3 to 7 of the complaint are regarding previous loan transactions from year 2006 onwards between the complainant and the OP, many documents filed with the complaint are also pertaining to these paragraphs. [In brief in 2006-07, the complainant was introduced to the OP by one Sh. Balak Ram Yadav and the complainant purchased an old auto-rickshaw DL1R-E6370 (briefly ‘TSR’) from OP for Rs. 1,45,000/- out of which amount of Rs. 45,000/-was down payment and remaining amount was financed by OP repayable in 24 EMIs of Rs. 6,000/- each, against which many blank papers were got signed from him, which were kept and in possession of the OP. The loan was cleared. Again, the complainant took loan of Rs. 1,80,000/- against the said TSR from OP; the loan was repayable in 24 EMIs of Rs. 8,400/- each against which many blank papers were got signed from the complainant, which were kept and in possession of the OP. However, there were some default of installment but loan was completed. The complainant was again in urgent need of money, he took another loan of Rs. 2 lakhs against the TSR; the loan was repayable in 36 months EMIs. Since there was adjustment of previous amount, the loan amount financed was of Rs. 3 lakhs and installment was of Rs. 11,000/- each, against which many blank papers were got signed from the complainant, the papers were kept and in possession of the OP. The OP failed to provide a single document of loan to the complainant]. The complainant discharged his loan liability towards the said TSR/ DL1RE6370 in 2014.
2.2. On 27.08.2014 the complainant purchased new vehicle/DL1R-P-7472. The complainant took, from the OP, finance of Rs. 2 lakhs, which was repayable in 24 EMIs of Rs.11,000/- each; the OP obtained signature of the complainant on various documents as usual, which are in possession of the OP and no document was provided to the complainant.
The complainant was paying EMIs regularly to OP against receipt/acknowledgement till 2016, when complainant could not make payment of EMIs in time due to financial crises but OP started charging higher rate of interest. In April 2018, the complainant was put under fear and forcible snatched the cash receipts issued to him and also compelled the complainant to take another loan/finance of Rs. 3,60,000/-, which was constrained to concede by the complainant; it was payable in 36 EMIs of Rs. 14,400/- each against which many blank papers were got signed from him, which are kept and in possession of the OP. The complainant was not provided copy of a single document. Moreover, the complainant was also threatened to pay amount by making wrong calculations, a sum of 28,000/- was charged excess, besides other amount, from the complainant under such pressure.
2.3 On 25.10.2018 the OP misbehaved with the complainant and also abused him during the presence of Mr. Mannu and Shri Ram, when threatening to snatch the vehicle from the complainant. The complainant paid that amount of Rs. 20,000/- on 18.11.2018 against cash receipt. Moreover, the complainant was also pressurized /ordered to pay Rs. 2 lakhs immediately without any reason and rhyme.
The OP had received handsome amount from the complainant. The OP failed to provide copy of hire purchase agreement, statement of account, calculations when requested but annoyed from the complainant and started abusing him. On 19.11.2018 not only the OP refused to provide the statement of account but also threatened to misuse the blank signed documents of complainant with him, he will ask amount from the complainant and to pick the vehicle from the road. The complainant has been under constant fear and apprehension that OP may execute his threats, whereas, the OP has no right to snatch the vehicle or to adopt other illegal means, despite the guidelines of apex court and other courts. The OP is taking advantage of illiteracy of complainant by making illegal higher interest rate charges to extort money, although the complainant is ready to pay lawful legal charges/amount as per fresh calculation, if so pending. Moreover, the complainant reserves his rights to get the hire purchase agreement null and void,, if it is so found; but agreement is against the public policy, law and the Indian Contract Act. The complaint reserves his right to initiate criminal action.
2.4 The complainant is sole and exclusive owner of vehicle DL1R-P-7472; he has been using to earn his livelihood. However, in case the OP succeeds in his illegal goals and designs then the complainant and his family will be on road. The modus operandi of the OP is to first to induce the people to have loan but then to deceive and cheat them, besides to take recovery order by filing petition under the Arbitration Law. The complainant also served the OP with legal notice 20.22.2018 but no reply. That is why the present complaint seeking direction to the OP to furnish his business licence, copy of HPA, statement of account, no dues/objection certificate and to restrain the OP from snatching of vehicle of complainant, besides compensation cost and expenses of litigation and other relief.
2.5 The complaint is accompanied with copies of various receipts (page no. 15-49, respect of earlier TSR), copy of RC of vehicle DL1R-P-7472 (page-56), receipts of payment in respect of DL1R-P-7472 from 15.04.2018 to 18.11.2018 (pages 50-55 of paper book), legal notice dated 20.11.2018 and complaint dated 15.12.2018 to police.
3.1 (Case of OP)- The OP does not dispute that Shri Balak Ram Yadav introduced the complainant and the complainant was extended loan but OP denies that he represented that M/s Cucu Auto Centre is non-banking financial concern. The complaint is also opposed that complaint is without cause of action since complaint got financed vehicle bearing registration no. DL1R-P-7472 and sum of Rs. 3,60,000/- was financed on 27.02.2018 which was repayable in 36 EMIs of Rs. 14,200/- each, however, out of which the complainant had paid a sum of Rs. 86,900/- upto November 2018. The complainant failed to pay the balance installments. The agreement was duly signed by the complainant and he agreed to terms and conditions of hire purchase agreement. Since the complainant admits the transaction as well as execution of loan agreement, thus complaint is mala- fide. The present Consumer Forum lacks the jurisdiction because the clause-24 of the agreement provides that matter shall be referred to Arbitrator Sh. Vikas Chhabra, Advocate in case of dispute.
3.2. The complaint contains containing frivolous facts of execution of blank papers and there is no police by the complainant. However, this complainant is at fault, who failed to pay the loan amount and just 7 installments were paid to the OP but filed false complaint on 15.12.2018 after sending legal notice to harass the OP. Since the OP had financed the said vehicle DL1R-E-6370 to the complainant, loan agreement was duly signed, which was understood by the parties. It was February 2018, when complainant approached the OP and then after adjustment of previous loan, total loan of Rs. 3,60,000/- was financed and the complainant had just paid installment upto November 2018. It cannot be believed that the lender will pressurize the borrower to concede to the loan. The OP had not put any pressure with regard to any loan agreement nor excess charges of Rs. 28,000/- or the other allegations of threat are also false. There is no restrictive trade practice, unfair trade practice or deficiency of services or mental torture, harassment and agony to the complainant to make the OP accountable. The complaint deserves dismissal.
3.3 The reply is accompanied with copy of hire purchase agreement, statement of account.
4.1. (Replication of complainant) – The complainant filed rejoinder in detail by reproducing and reasserting the facts and features of the complaint with the denial of allegations of the written statement.
4.2. The OP took signature of complainant on blank paper to serve its own purpose. The provision of Arbitration law does not exclude the jurisdiction of Consumer Forum since Section-8 of the Arbitration Act does not take away additional remedy under the Consumer Protection Act being beneficial legislation. The complainant also denies other averments of OP in respect of hire purchase of agreement or of clause-24 of the agreement, since no document was furnished to him. The complaint is correct.
5.1. (Evidence)- The complainantCW1 led his evidence by filing his detailed affidavit of evidence on the pattern of complainant coupled with documentary filed in support of complainant. He also got examined CW2/Shri Ram Gopal and CW3/Ani Kumar Yadav to establish that they are also aggrieved persons since OP got executed blanks papers from them and from the complainant, besides OP does not to disclose the statement of account or its details or rate of interest on loan.
5.2. The OP has not led evidence for want of filing affidavit. It relevant to mention that although in the proceedings dated 16.03.2020 recorded by Ld. Predecessors, it is mentioned that OP filed affidavit and copy was provided to complainant, thus it was clarified from the parties and their counsels on 22,02,2024 there was no affidavit of evidence was filed on behalf of OP.
6.1 (Final hearing)-The parties were given opportunity for filing written arguments and oral submissions. The complainant filed the written arguments followed by oral submissions by Ms. Sweta Goswami, Advocate for complainant. However, the OP failed to file the written arguments despite opportunities inclusive of last opportunity and then opportunity was closed on 02.11.20223, but oral submission by Sh. Gagan Wadwa and Sh. Nitin Chaudhary, Advocate were appearing with Sh. Narender Pal Singh/OP.
6.2. It is material to mention that when the matter was pending for final arguments, it was informed to this Commission by and on behalf of OP that arbitration proceedings are pending against complainant then on inquiry name of Sh. Vikas Chhabra, Advocate, Sole Arbitrator was disclosed besides the status of proceedings was at the stage of service of notice upon the complainant herein vis a vis complainant was ignorant of such proceedings for want of receipt of notice. The complete address of seat of arbitration was not recollected on behalf of OP except being at Naraina, Delhi. Subsequently on 11.08.2023 the address of Naraina Vihar was furnished by OP. The complainant had searched that place and he could not found the Arbitrator Sh. Vikas Chhabra, Advocate/Sole Arbitrator at that address or progress of proceedings.
6.3. Further, the OP had also placed on record Form no.35 issued by Vikhyat Securities Pvt Ltd. and application under the subject of cancellation of HpA, both dated 10.9.2015. It was clarified that OP is franchise/agent of M/s Vikhyat Securities Pvrt Ltd.
Moreover, on last date of hearing of 22.2.2024, when certain clarification were sought, the complainant also filed vehicle particulars (generated on 8.4.2019) showing name of Vikhyat Securities Pvt Ltd, whom vehicle was hypothecated.
7.1 (Findings)- The case/contentions of both the sides are considered, keeping in view the material on record in the form of narration in evidence, documentary record, provisions of law of the Consumer Protection Act, 1986, the Hire Purchase Act, 1973, the Arbitration and Conciliation Act, 1996, Section 51 of the Motor Vehicle Act r/w rules 60 & 61 of Motor Vehicle Rules 1989 r/w Forms 34 & 35 there-under and precedent.
7.2. The OP1 has reservation that since there is Arbitration clause in the agreement, therefore, the present DCDR Commission lacks the jurisdiction. On the other side, the complainant has reservation that there is no bar for proceedings under the Consumer Protection Act vis-à-vis the complainant was never informed of arbitration proceedings nor complainant found Arbitrator functioning at the address disclosed at final stage of this complaint nor any notice was received. The complainant was never served with any notice of the proceedings of Sole Arbitrator.
7.3 Since a question has been raised by OP, 'whether it bars the Jurisdiction of Consumer Commission/Fora, in case there is an arbitration clause in agreement to refer the dispute, if so arises, to Arbitrator and consumer complaint is liable to be dismissed'?
To answer this question, it needs discussion from the point of the Arbitration and Conciliation Act 1996 as well the Consumer Protection Act, whether erstwhile Act of 1986 or the current Act of 2019 apart from the law laid down in precedents. It is matter of discretion of parties to enter into arbitration agreement or to include arbitration clause in the agreement to resolve the dispute, if so arises, through Arbitrator. The Arbitral Tribunals are private Fora, which are chosen by the parties out of their volition to get determined their dispute, in place of public form of Civil Court and other tribunals. When, there is such agreement between the parties, matter is to be referred to Arbitrator by the judicial authority in terms of section 8 of the Arbitration and Conciliation Act 1996 in case civil suit is filed in the court. The Arbitrator has to follow the provision of the Arbitration and Conciliation Act 1996. Arbitrator gives its final findings as an Award. There is also remedy provided in the Act, 1996 itself if one party is feeling aggrieved from such Award, however, it is subject to fulfilling the conditions laid down. Section 34(2)(b) and sec.48(2) of the Arbitration and Conciliation Act 1996, makes it clear that arbitral award may be set aside if the court finds that subject matter of the dispute is not capable for settlement by the arbitration under the law for the time being in force or award is in conflict with the public policy in India.
By looking into Consumer Protection Act 1986, this Act does not specify non-arbitral matters. However, on the principle that adjudication of certain categories of proceedings are reserved by legislature exclusively for public fora as a matter of public policy, e.g. dispute relating to rights and liabilities which give rise to or arise out of criminal offences; matrimonial disputes relating to divorce, judicial separation, child custody, restitution of conjugal rights; guardianship matters; insolvency and winding up matters; testamentary matters (probate, letter of administration and succession certificate) and eviction of tenancy matters, which are governed by special statute, as held in Booz Allen and Hamilton Inc Vs SBI Home Finance Ltd 2011 5 SCC 532.
A similar situation had arisen in M/s Emaar MGF Land Ltd Vs Aftab Singh [decided on 10.12.2018 in Review petition (C) no.2629-2630 in civil appeal no. 23512-23513] wherein the revision petition was dismissed by holding that the arbitration clause in buyer's agreement is not a bar to resolve dispute by Commission, while relying upon the Act that provisions of Act are in addition to and not in derogation of other law in force (sec. 3 of Act 1986) and also on the basis of previous decisions inclusive of case Booz Allen and Hamilton Inc (supra). Sec. 100 of the Act 2019 is identical to section 3 of erstwhile Act 1986. Since, section 8 of the Arbitration and Conciliation Act 1996 was amended in 2015 and it was also discussed that it would also not affect the position because of amendment of 2015 in section 8(1) of the Arbitration and Conciliation Act 1996, that notwithstanding any decree or order of Supreme Court or other Court, the matter is to be referred to arbitration unless court finds prima facie that no valid arbitration agreement exists. To say, in Emaar MGF case, the reasons and objects of Bill of proposed amendment of 2015 in the Arbitration & Conciliation Act 1996, was also discussed to ascertain what impetus for proposed amendment was. It was discovered that in order to smooth and expedite the arbitration proceedings by least judicial intervention from the point of filing copy of agreement, section 8 was amended. It is never the move in objective of amendment to oust the jurisdiction of Consumer Commissions. Thus, the DCDR Commission/Fora has jurisdiction to determine the issue.
8.1 Now the other issues are being taken. At the outset the complainant has given facts, features and documents of earlier transactions [of TSR] between the complainant and the OP, however, the same is not the direct subject matter to be determined, since according to complainant’s own case, the subject matter is in respect vehicle DL1R-P-7472 and of loan amount given by the OP, no dues/objection certificate as well as threat to dispossess the complainant from his vehicle DL1R-P-7472. There is rival plea of both the sides on such issues. Therefore, by taking into account the totality of circumstances, the following conclusions are drawn:-
(i) The bundle of facts mentioned in the complaint does not depicts the date specifically either of previous transaction of TSR or of vehicle DL1RP7472, however, the six receipts proved by the complainant are from 15.04.2018 to 18.11.2018 are of total amount Rs. 86,900/-.
(ii) The OP has also filed hire purchase agreement dated 27.02.2018 and statement of account. However, the statement of account is on plain exercise book/register is not reflecting the name of OP whether the same is regularly maintained in the course of business. It is depicting six transactions from 15.04.2018 to 18.11.2018 of total amount of Rs. 86,900/- deposited by the complainant.
(iii) So far payment of Rs. 86,900/- is concerned, the facts narrated by the complainant and the record produced by the OP are reconciling each other.
(iv) The complainant alleges that various receipts/record were snatched by the OP from the complainant, however, the same remained un-substantiated for want of specific date, time, year, occasion and place.
(v) During the pending of complaint, the OP was asked for appropriate record, that was also filed, showing particulars of complainant with photograph, date of case 27.2.2018, vehicle no.DLIR-P-7472 and the same statement of account, which was filed with the written statement. The particulars does not mention name of OP or else.
However, Form-35 of cancellation of hire purchase/lease/hypothecation under Motor Vehicle Rules was issued by “Vikhyat Securities Private Limited” in respect of vehicle no. DL1R-P-7472. But the OP is proprietor of M/s Cucu Auto Centre, the HP Agreement filed is also between the complainant and the OP, even agreement does not mention that it was executed by M/s Cucu Auto Center for and on behalf of Vikhyat Securities Pvt. Ltd. The particulars of the vehicle mention name of Vikhyat Securities Pvt. Ltd. whom vehicle was hypothecated, who had issued Form No. 35 of 10.09.2015 with application for cancellation of HpA.
(vi). The complainant has proved registration certification of vehicle DL1R-P-7472 (page-56 of the paper book), the date of registration is 27.08.2014, registered upto 26.08.2029 and tax paid is upto 31.07.2024. There is no entry of hypothecation in registration certificate of the vehicle in the name of OP but name of Vikhyat Securities Pvt. Ltd. whom vehicle was hypothecated find mentioned in the particulars of vehicle.
(vii) There are two aspects with regard to repayment of EMI, on the one side complainant contends that a few EMIs were not paid due to financial constraints but on the other side there is another version that the receipt issued were filed. The complainant has not given exact details or facts as to what exactly amount was paid by him, except the amount of Rs. 86,900/- paid by him is corroborating from the record of OP that this amount was received on the same dates, for which receipts were filed on behalf of complainant.
(viii) Both the parties are referring provisions of hire purchase agreement. There was Notification no.FB183/72-L1 dt 30.08.1973 regarding publication of the Hire Purchase Act, 1973 for its enforceability. However, it was repealed by the Hire Purchase Repeal no.35 Act 2005 w.e.f. 23.06.2005, thus the hire purchase agreement is no more enforceable law.
When Hire Purchase Act 1973 is not enforceable law, therefore, the hire purchase agreement will not be enforceable, besides how the vehicle TSR DL1R-P-7472 could be construed to be under hire to the complainant, when complainant is its registered owner of the vehicle.
(ix) While assessing the record, the circumstances are speaking a lot that the OP has not led evidence nor filed the written arguments, the OP has not disclosed firstly about the Arbitration proceedings and later-on it was apprised that Arbitration proceedings are being conducting by Sh. Vikas Chhabra Sole Arbitrator but seat of Arbitrator was not known. Subsequently, the address of venue of proceedings were mentioned which was recorded in the proceedings dated 11.08.2023 at C-Block (UG-10), Commercial Complex, Narania Vihar, Delhi. The complainant contended that he did not find the Arbitrator at that place by visiting there. Further, the OP has introduced Form No. 35 dated 10.09.2015 issued by M/s Vikhyat Securities Pvt. Ltd. for cancellation of HPA, a third party has been projected by the OP, which was never mentioned in the written statement or otherwise in the proceedings.
(x) The circumstances are suggesting, which also remained unchallenged that there is threat to the complainant of snatching his vehicle by the OP, despite it belongs to the complainant and OP has no charge thereon. There is no proof by OP that it is franchise of M/s Vikhyat Securities Pvt. Ltd nor any power of attorney is proved in favour of OP. The receipts of Rs.86,900/- in favour of complainant were issued by OP in its individual own capacity.
(xi) One more aspect is emerging that OP had informed about pending of arbitration proceeding, but it is not brought on record as to who had initiated that process whether by OP or M/s Vikhyat Securities Pvt. Ltd?
8.2 The detailed analysis, discussions and assessment of facts and features of the case, it stand proved that the hire purchase agreement and statement of account is produced by the OP. To that extent, the complaint is satisfied.
The complainant could not prove as to what amount [other than Rs. 86,900/-] was paid by him to the OP, therefore, request for 'no dues/objection certificate' is declined.
8.3 Since the complainant is registered owner of the vehicle and OP could not prove that the vehicle is under hypothecation of OP; the OP/M/s Cucu Automobile has no right, lien and charge on the said vehicle no. DL1R-P-7472, besides the Hire Purchase Act 1973 is a repealed Law vis a vis there is un-rebutted testimony of threat given by OP to snatch the vehicle from complainant, therefore, the OP has no right to intervene with the possession of said vehicle DL1R-P-7472 or to snatch it from the complainant or from his authorized person. To that extent the complaint has been proved.
8.4 The complainant has also claimed compensation of Rs. 1 lakh in lieu of mental torture, agony, harassment and loss of time besides costs and expenses. The complainant has also served the OP with legal notice dated 20.11.2018 prior to filing the complaint, the said notice along-with postal receipt has also been proved, the notice was sent at the same very address, which is mentioned in the complaint by complainant as well as by OP in his supporting affidavit of written statement. Thus, the circumstances proved are showing that complainant suffered harassment and mental agony at the end of OP, therefore, the complainant is held entitled for compensation of Rs.5,000/- and cost of Rs. 3,000/- in his favour and against the OP.
9. So the complaint is partly allowed in favour of complainant and against the OP while restraining the OP from taking possessing of vehicle bearing registration no. DL1R-P-7472 from the complainant or his authorized representatives in any manner. Further, OP is also directed to pay to complainant compensation of Rs.5,000/- and cost of Rs. 3,000/- within 45 days from the date of this order. The complainant has option it may deposit the amount in the Registry of this Commission in the name of complainant within 45 days from date of this Order. In case, the OP does not pay (or in alternate deposit) the amount within 45 days, then compensation will be enhanced to Rs.10,000/-.With these terms, the complaint is disposed off.
10. Announced on this 7th day of March, 2024 [फाल्गुन 17, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Inder Jeet Singh]
President
[ijs33]
[Shahina]
Member (Female)
