PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER. 1. This appeal is preferred against the order dated 24/06/2008 passed by the District Consumer Forum, Chandrapur in CC No. 131/07 (new) { CC No. 54/2004 (old)}, by which the complaint has been partly allowed. 2. The case of the complainant as set out in the complaint in brief is that he purchased a mini truck on 27/11/2001 by making down payment of Rs.87,000/- to the opposite parties (for short O.P Nos. 1&2) and also by obtaining loan of Rs.3,37,000/- from O.P. No.2. The complainant expended Rs.21,507/- for registration of that vehicle and for its taxes. He also expended Rs.25,000/- for building of its body. The said loan with interest, total amounting to Rs.4,66,000/- was to be repaid in 47 monthly installments of Rs.9,900/- each and an agreement of hire purchase was executed in between both the parties. The complainant paid those installments as per statement attached with the complaint. He also paid by demand draft Rs.4,000/- on 16/09/2003, Rs.3,000/- on 29/09/2003 and Rs.3,500/- on 1/03/2004 i.e. total Rs. 10,500/- to the O.Ps. But they did not credit the said amounts to the aforesaid loan account of the complainant. They also did not furnish account statement to him though demanded. However, they seized said truck on 23/03/2004 without prior intimation, through their agent, forcibly. The installment for the month of March-2004 was due on 27/03/2004.The O.Ps. seized that vehicle prior to the said date though no installment was due from the complainant. The complainant paid Rs.20,500/- to the O.Ps. towards installments of the months of January and February- 2004. Prior to that also they had seized the said vehicle illegally in the month of March-2003 and had kept them for 16 days. They released the same after 16 days. However, they did not release the vehicle after its seizure on 23/03/2004, though the complainant vide letter dated 02/04/2004 requested them to release the same and to provide him statement of account. Thereafter, complainant served notice dated 13/04/2004 to the O.Ps., but of no use. They sold the vehicle without any notice to the complainant. Therefore, complainant claimed from them Rs.1,33,560/- with interest and compensation with cost as specified in the complaint. 3. The O.P. Nos. 1&2 filed their respective written version and resisted the complaint. They raised preliminary objection about jurisdiction of the District Consumer Forum. They admitted that the complainant obtained loan of Rs.3,37,000/- from O.P. No.2 for purchasing mini truck and that the said loan was repaid with interest total amounting to Rs.4,66,501/- and that the 47 monthly installments were granted, each of Rs.9,900/-. They admitted that complainant deposited Rs.87,000/- with them before obtaining the loan. They also admitted that hire purchase agreement was executed in between both the parties. They denied that complainant paid them vide demand drafts dated 16/09/2003, 01/03/2004 and 29/09/2003, Rs.4,000/-, Rs. 3,500/- and Rs. 3,000/- respectively. It is there case in brief that on the date of repossession of the vehicle, the complainant was in arrears of Rs.1,99,610/-, for which legal notice was issued to him. He did not comply with the said notice and hence the said vehicle was repossessed by them. They thus submitted that complaint may be dismissed. 4. The District Consumer Forum below after hearing Advocates of both parties and considering the evidence brought on record came to the conclusion that it has got jurisdiction to decide the complaint and that the O.Ps. did not credit to the loan account of the complainant, the amounts paid by him vide demand drafts on 16/09/2003 and 29/09/2003 and they also did not credit to his loan account Rs.25,000/- and Rs.10,000/- deposited by him on 02/11/2003 and 07/11/2002 respectively vide receipt Nos. 888916 and 373855. Thus the Forum below found that the seizure of the vehicle from the O.Ps. is unjust when there was no due from the complainant . It also found that the O.Ps. sold the vehicle and hence the complainant is entitled to Rs. 87,000/- paid by him to the O.Ps. before obtaining loan and Rs.25,000/- towards building of the body of the truck. The Forum below therefore directed the O.P. Nos. 1&2 to pay the said amounts to the complainant with the interest at the rate of 9% p.a. from 23/03/2004 till realization and also to pay him Rs.15,000/- towards mental harassment and also to pay him Rs.5,000/- towards cost of complaint. 5. Feeling aggrieved by that order, the O.P. Nos. 1&2 have preferred this appeal. Advocates of both parties filed their respective written notes of arguments. We have also heard them and perused the documents placed before us by them. Both Adv. submitted that the written notes of arguments filed by them may be treated as their oral argument. 6. The learned Advocate of the appellant in his written notes of argument submitted that in hire purchase agreement there is a condition that the Courts at Mumbai alone will have jurisdiction to decide the dispute between both the parties and therefore, the District Consumer Forum below erred in entertaining the complaint. He relied upon observations made in the following cases:- i. Shriram City Union Finance Corporation Ltd. Vs. Rama Mishra, (2002) 9 Supreme Court Cases 613. In that case it is held that parties can by an agreement choose one of such court for adjudication of their dispute and if there is such an express agreement, suit filed in different court would be invalid. ii. Arvind Kahalal Pashine and Anr. Vs. Tata Finance Ltd. Bombay, 2001(4) Mh.L.J. 211. In that case there was an agreement providing that venue of arbitration would be at Bombay and Courts at Bombay alone would have jurisdiction in this regard. Part of cause of action arose at Bombay. Therefore it is held that agreement is valid and binding on the parties. iii. Balaji Traders Amravati Vs. Indian Bank Amravati and Anr, 1996 (2) Mh.LJ. 561. It is held that material clause being one in contract agreement which excluded jurisdiction of all courts except one at Bombay and therefore Court at Amravati had no jurisdiction to try the suit. 7. On the other hand, the learned Advocate of the respondent in his written notes of argument submitted that the Forum below has rightly held on the basis of well settled law that it has got jurisdiction. He further submitted that the appellants did not serve notice prior to the sale of the vehicle by auction and they have also not made it clear as to whom that vehicle is sold and for what consideration it is sold and therefore the auction is illegal. He has drawn our attention to the payments made by the respondent herein to the appellants and submitted that the appeal may be dismissed. He relied upon observations made in the following cases. i. Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC). It is held by the Hon’ble Supreme Court that section 34 of Arbitration Act is not attracted to the proceeding before Consumer Forum as vide section 3 of the Consumer Protection Act additional remedy is provided under the said Act. ii. Cholamandalm DBS Finance Ltd. Vs. Kishore Jain, I (2008) CPJ 214 (NC). In that case it is held that Hon’ble National Commission that thought in hire purchase agreement, there is an arbitration clause, jurisdiction of Fora under Consumer Protection Act is not outstate as additional remedy is provided under the said Act. iii United India Insurance Co. Ltd. Vs. M/s. Pushpalaya Printers,I (2004) CPJ 22. (SC). It is held by Hon’ble Supreme Court that when two interpretations are possible, one beneficial to insured should be accepted. iv. Manager, Karanataka Bank Ltd. and Anr. Vs. Puttamade Gowda, II (2004) CPJ 59(NC). In that case, notice was dispatched on 16/03/1995, whereas auction was concluded on 15/03/1995 and therefore it is held that serious prejudice resulted regarding sale of ornaments and hence, it is held that breach of mandatory provision is proved. v. Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi, III (2007) CPJ 161 (NC). In that case vehicle was seized forcefully before expiry of the time and sold. No notice was given before repossession and sale of that vehicle. Procedure prescribed for repossession was not followed. It is held by Hon’ble National Commission that it is unjust to direct consumer to pay outstanding balance amount when vehicle was repossessed by force and sold without prior notice and therefore, O.P. was held liable to pay market value of the vehicle with interest at the rate of 9% p.a. 8. The learned Advocate of the respondent also submitted in his written notes of argument that the question of jurisdiction has been decided in earlier appeal No. A/04/2368 filed by the present respondent herein and now objection about jurisdiction cannot be again raised. He thus submitted that appeal may be dismissed. 9. It is seen that initially the District Consumer Forum below had passed final order on 27/10/2004 in the complaint and thereby it had dismissed the complaint giving liberty to the complainant to approach to competent Court for seeking relief. However, in appeal No. A/04/2368 preferred by the complainant against that order, this Commission held that the dispute involved in this matter is a consumer dispute and the original complainant is a consumer within the meaning section 2 (1) (d) of the Consumer Protection Act. Therefore, this Commission remanded the complaint by setting aside the said order dated 27/10/2004, for deciding the dispute on merit according to law. The said order dated 24/09/2007 was not challenged in revision before Hon’ble National Commission. Therefore it has become final. Hence, in second round of this appeal no plea can be raised against the jurisdiction of the Forum below. 10. Moreover, in the aforesaid cases which are relied upon by learned Advocate of respondent herein it is held by the Hon’ble National Commission as well as by the Hon’ble Supreme Court that despite of arbitration clause in the agreement, complaint before the Consumer Forum is maintainable as it is additional remedy provided under the Consumer Protection Act. We find that in view of the said well settled law, the Forum below committed no error in entertaining the complaint. Moreover, the aforesaid decision relied upon by the learned Advocate of the appellant on the point of jurisdiction are not applicable to the present case as the facts and circumstances of present case discussed above are totally different from those of said cases. 11. So far as the merit of the case is concerned, we find that the District Consumer Forum below has properly considered evidence brought on record. The complainant/respondent herein produced copies of demand draft which prove that he paid to the appellant Rs.4000/- and Rs.3000/- on 16/09/2003 and 29/09/2003. He also produced copies of counter slips of the concern bank in this regard. He also produced the copies of the receipts dated 22/11/2003 and 07/11/2002 which prove that he paid Rs. 25000/- and Rs. 10000/- on those dates to the appellant. The aforesaid amounts were not credited to the loan account of the original complainant/respondent herein. Moreover, no document was produced before the Forum below by the appellants showing that they had furnished account statement to the original complainant /respondent herein though he demanded the same from them. Thus non furnishing of account statement demanded by the original complainant/respondent herein, gives inference that the appellants wanted to suppress the fact of payments made as above by the original complainant/ respondent herein to them. 12. In our view, therefore the account statement of appellant can not be believed. It is also pertinent to note that the appellants sold the vehicle of the complainant by public auction. The appellants have not furnished any document showing when that vehicle was sold and for what consideration it is sold. It is also not shown by the appellant as to whether the sale proceeds of that vehicle are more or less than the actual amount if any due from the original complainant. In our view as no such account statement is produced showing the amount of sale proceeds and its adjustment in the loan account, an adverse inference can be drawn against the appellants. 13. We thus find that the Forum below has properly considered evidence brought on record in the light of the decisions referred to in the impugned order. We thus hold that the Forum below has rightly directed the appellants to pay to the original complainant Rs. 87,000/- with interest, which he paid to them as down payment at the time of purchasing the vehicle. 14. However, we find that the original complainant used that vehicle for earning from the date of purchase i.e. 27/11/2001 till it was sold by public auction by the appellant and thereby he earned the money. Therefore we find that complainant is not entitled to Rs.25,000/- from the appellants towards body-building of that truck. The Forum below has thus erred giving direction to the appellant to pay complainant Rs.25,000/- with interest. However, compensation of Rs.15,000/- towards mental harassment and cost of Rs.5,000/- awarded by the Forum below is just and proper. Thus the appeal deserves to be partly allowed. ORDER i. The appeal is partly allowed. ii. The direction given by the Forum below under clause No. 2 of the impugned order to the original opposite parties /appellants to pay Rs.25,000/- with interest at the rate of 9% p.a. from 23/03/2004 is hereby set aside. iii. Rest of the impugned order is maintained. iv. No order as to cost in appeal. v. Copy of the order be furnished to both parties free of cost. Dated:- 31/01/2014. | 
