BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.
Consumer Complaint No.88 of 2018.
Date of instt.:24.4.2018.
Date of Decision:19.12.2019.
Amjad Khan, aged 28 years s/o Rashid Ahmad, r/o H.No.190, Buria Chowk, Bharat Sewak Nagar Colony, Jagadhri, District Yamuna Nagar.
…….Complainant. Versus
- Prop. Mahindra & Mahindra Tractors, M/s Jaswant Singh and Sons, Pipli Road, Kurukshetra.
- Mahinder Singh C/o M/s Jaswant Singh and Sons, Sama market, near Power House, Radaur Road, Ladwa, District Kurukshetra.
- L&T Finance Co. Ltd., registered office at L&T House, N.M. Marg Ballard Estate, Mumbai-400001, through its M.D.
….…Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Smt. Neelam Kashyap, President.
Ms. Neelam, Member.
Shri Issam Singh Sagwal, Member.
Present: Shri Rahul Punia, Advocate for the complainant.
Shri G.S. Ratgal, Advocate for the opposite parties No.1& 2.
Opposite Party No.3 ex-parte.
ORDER
This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Amjad Khan against Mahindra & Mahindra & another, the opposite parties.
2. The brief facts of the complaint are that in September 2015, the complainant purchased one tractor Mahindra -575 Bhoomi Putra bearing Chassis No.NKBB06464, Engine No.NKBB-06464 from the OP No.1 through its sale agent OP No.2 by paying down payment of Rs.1,55,000/- to OP No.2 and also paid Rs.25,000/- for insurance and registration certificate of said tractor and the sale letters and bills were taken by OP No.2 for that purpose. However, a long amounting Rs.4,00,000/- has also been sanctioned by OP No.2 through OP No.3 and for that purpose, OP No.2 took blank cheque and also signed some papers and stamp papers from him. That he was regularly paying the installments of loan amount upto 30.10.2017, but now he received a letter of the arbitration proceeding vide which he is directed to pay Rs.4,21,181/- alongwith interest from 19.10.2016. That the OPs No.1 & 2 had not handed over the registration certificate and other concerned documents relating of said tractor, due to which, he was suffering hardship in plying the tractor and same was standing at his house. That he served a legal notice upon the OPs through his counsel, but even then, they had not paid any heed to his genuine request. The above said act and conduct on the part of the OPs amounts to deficiency in services and unfair trade practice. Hence, this complaint.
3. Upon notice, the opposite parties No.1 & 2 appeared and filed written statement raising preliminary objections regarding maintainability; locus-standi; cause of action; jurisdiction; time barred and that the complaint is bad under resjudicata. One more case was also filed in Civil Court at Jagadhri on the same grounds and against the same parties. The complainant has not come with clean hands and has concealed the true & material facts from this Hon’ble Forum. The true & material facts are that the complainant purchased the said tractor make 575 DI for a sum of Rs.5,90,000/- against Bill No.5985 dated 23.9.2015 in which he paid down payment/margin money Rs.1,55,000/- and Rs.4,00,000/- was taken as a loan from OP No.3 and a sum of Rs.35,000/- was outstanding against the complainant and is still pending. As such, the complaint is liable to be dismissed. On merits, it is submitted that a civil suit bearing No.CS/727/2018, CNR No.HRYN02-001066-2018 titled as Amjad Khan Vs. Mahindra & Mahindra etc. was also pending regarding the same matter and against the same parties. There is no deficiency on the part of the OPs No.1 & 2 and prayed for dismissal the present complaint with costs against them.
Upon notice, none appeared on behalf of the OP No.3 before this Forum, therefore, he was proceeded against ex-parte vide order dated 31.5.2018.
4. The complainant tendered affidavit Ex.CW1/A alongwith documents Annexure C-1 to Annexure C-9. On the other hand, learned counsel for OPs No.1 & 2 tendered affidavit Ex.RW1/A alongwith document Ex.R-1.
5. We have heard the learned counsel of the parties and carefully gone through the case file.
6. At the outset, the learned counsel for the OPs No.1 & 2 has raised the objection that the complainant has already filed a civil suit for permanent injunction against all the OPs regarding the same cause of action, which is still pending for adjudication, so the present complaint is liable to be dismissed on the same ground. Heard.
7. In the present case, it is admitted by the complainant himself that he has filed a Civil Suit bearing No.CS/727/2018 titled as Amjad Khan Vs. Mahindra & Mahindra etc. before the Ld. Civil Court at Jagadhri. In this regard, the complainant produced copy of that civil suit alongwith its Zimney orders on the case file as Annexure C-7 to Annexure C-9 respectively. We have perused the prayer para of the aforesaid civil suit Annexure C-7, wherein, the complainant prayed for, which is reproduced as under:-
“Suit for Permanent Injunction restraining the defendants from recovering any illegal amount from the plaintiff in any manner by way of raising threats to the plaintiff or by adopting coercive method of snatching/ re-possessing the tractors of plaintiff with consequential relief of Mandatory Injunction directing the defendants to handover the R.C., insurance policy and N.O.C. of Tractor, make Mahindra 575 Bhoomi Putra, Chassis No.NKBB06464, Engine No.NKBB06464”.
So, from the perusal of above-said Civil Suit/its prayer clause, it is evident that the matter on the same cause of action against the same parties, is pending before the learned Civil Court, Jagadhri. Thus, this Forum has no power to give any conflicting findings in the present case, as the matter is already subjudice in the Civil Court on the same cause of action. Our view is supported by the case law titled Parkash Chand Sahu Versus M/s Kisan Tractor & Anr, Revision Petition No.2237/2011, d.o.d. 08.7.2011, wherein, the Hon’ble National Commission has held that “We have heard learned counsel for the petitioner. This revision petition filed against the concurrent findings of the District Consumer Forum and the State Commission. The petitioner filed complaint alleging that there was deficiency in service and that the respondents sold a defective tractor to the petitioner. On merits, after considering the relevant material adducted by the parties, the District Consumer Forum, Vidisha held that the petitioner had purchased a old tractor and that the documentary evidence indicated that there was no sufficient evidence against the respondent no.2. It appears that the main contentions issue is whether the petitioner had purchased a new tractor from the respondent no.2 or that the transaction regarding old tractor was entered with the respondent no.2. The District Consumer Forum held that such complex issue could be decided by the Civil Court. The District Consumer Forum also found that the issue was pending before the Civil Court at Vidhsha and in view of such circumstances, the complaint was dismissed. Once it is found that the same issue was pending before the Civil Court, the District Consumer Forum restrained itself from giving any finding, inasmuch as it could have been in conflict with the finding of the Civil Court. The appeal preferred by the petitioner was dismissed on the ground that the petitioner had not approached the Fora with clean hands. 3. Considering the concurrent findings, we do not think this is a fit case to exercise the revisional jurisdiction of this Commission. At the same time we may clarity that the observation of the State Commission that the agreement completely demolished the theory of the petitioner having purchased a new tractor in the price of old tractor may not be considered as final and it is subject the theory of the petitioner having purchased a new tractor in the price of old tractor may not be considered as final and it is subject to the finding of the Civil Court. The revision petitioner is relegated to the Civil Court. The revision petition is dismissed with no cost”.
8. Keeping in view the ratio of the law laid down by the Hon’ble National Commission in the case referred to above; facts and circumstances of the present case as well as without going into the merits of the present case, we are of the considered view that two separate proceedings on the same cause of action cannot run together, hence, the present complaint is hereby dismissed with no order as to costs. 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, after due compliance.
Announced in open Forum:
Dt.:19.12.2019. (Neelam Kashyap)
President.
(Issam Singh Sagwal), (Neelam)
Member Member.
