JUSTICE SUDIP AHLUWALIA, MEMBER

          The present Revision Petition has been filed by Shriram Transport Finance Co. Ltd. (hereinafter referred to as “Petitioner/Financier”) against the impugned Order dated 23.11.2021 passed by the State Consumer Disputes Redressal Commission, Circuit Bench, Bikaner, Rajasthan in Appeal No. 120 of 2016 vide which the Appeal filed by the Petitioner herein was dismissed.

2.      Brief facts of the case as per the Complaint are that Sampatlal is owner of a truck bearing registration No. RJ-07-G-4798. The Complainant had purchased the truck by taking a loan from Tata Motors Finance Ltd. and got it refinanced from the Petitioner on 09.03.2007. The Petitioner took the custody of the truck at its place for the purpose of physical inspection and stated that the vehicle will be released when the Complainant gets the cheque for refinancing.  Upon payment of refinance by the Petitioner to the previous financier, Tata Motors Finance Ltd., issued No Objection Certificate (NOC) and changed the hypothecation details on the vehicle’s Registration Certificate (RC) to that of the Petitioner.  However, the Petitioner did not release the said vehicle even after presenting the RC and NOC. That even after refinance on 09.03.2007, the Petitioner has kept the truck in illegal custody and has been using it for its own gain. That even after contacting the Petitioner several times the vehicle was not released and later the Complainant was informed that he has to pay 11 months of due instalments of ₹1,15,000/- and additional parking charge of ₹27,000/-. It was agreed by the Petitioner and the Complainant in their agreement that the Complainant would have to begin paying the instalment amounts only after getting the vehicle and as such the aforesaid demand was illegal and against the agreement conditions. The Petitioner has been illegally benefitting to the tune of ₹20,000/- per month by using the vehicle.  This act of the Petitioner constitutes an unfair trade practice. The Complainant’s sole means of self-employment is the vehicle and because of Petitioner keeping the illegal custody of the vehicle, the Complainant has been rendered unemployed causing extreme financial hardships to him and his family.  At the time of refinance, the Petitioner took from the Complainant 12 signed blank cheques bearing No. 854784 to 854795 as security. The Complainant apprehends that the Petitioner may misuse these cheques and so prays that the cheques be returned to him.  The Complainant sent a letter to the Petitioner dated 15.01.2008 regarding the return of the aforesaid cheques and also sent a Legal Notice through his Advocate which was duly received by the Petitioner. The act of the Petitioner keeping the illegal custody of the vehicle and the blank cheques is a deficiency of service on their part.

3.   Aggrieved by the act of the Petitioner, the Complainant filed his Complaint before District Consumer Disputes Redressal Commission, Bikaner praying for return of the vehicle, 12 signed blank cheques, compensation of ₹3,60,000/- along with interest for using the vehicle illegally, and also claimed damages for mental agony and cost of litigation.

4.   The District Commission vide its Order dated 31.03.2015 partly allowed the Complaint and awarded to the Complainant the sum equivalent to Insured Declared Value (IDV) of the vehicle @9% interest from the date of Complaint (20.08.2008) till date of realization along with ₹31,000/- towards mental harassment.   The relevant extracts from the Order of the District Commission are set out as below (it may be noted that translation of the original order in vernacular into English by the Petitioner in its Petition would leave a lot to be desired) –

“ORDER

1. From the date 20.08.2008, 9 percent of the annual interest will also pay interest. If any amount by the OP, as the OP has been told, it has been deposited in the account of the Complainant, then this amount will be adjustable in the above amount due to the conscience.
2. An expense for the fulfilment of mental inability to the OP company’s company. 31000/- (just pay one thousand rupees. 18/84).
3. The above order of the above order will do the company in a month period
4. There will be interest payments due to 9 percent annual ordinary interest rate on date decision on the duration decision, but not to cry in the prescribed period.
5. The libel is canceled in relation to the remaining unobstrusive…”

5.      Aggrieved by the Order of the District Commission, the Petitioner filed Appeal before the State Commission. The State Commission dismissed the Appeal of the Petitioner vide Order dated 23.11.2021 and confirmed the Order of the District Commission.

6.      Aggrieved by the Order of the State Commission, the Petitioner filed the present Revision Petitioner raising the following issues-

a.  That the Respondent had surrendered the said vehicle on his own because he was not able to pay any single instalment and an undertaking dated 11.06.2008 regarding voluntarily surrendering the vehicle was given by him to the Petitioner which was not taken into consideration by the District Commission and the State Commission wrongly disregarded it;

b.That the District Commission wrongly held that the Petitioner had sold the vehicle despite the fact that no such information was mentioned in the pleadings of the Petitioner. The Petitioner also apprised the State Commission of the same but the State Commission still disregarded it. The said vehicle is still lying in the yard of the Petitioner, thus there is no income being accrued to the Petitioner from the vehicle. Due to non-payment of loan amount by the Complainant, it is the Petitioner who is suffering losses;

c. The District Commission awarded IDV amount along with 9% interest to the Respondent. However, the Respondent had never prayed for refund of the vehicle amount but had prayed for the alleged amount of profit of ₹3,60,000/- to be returned to him. The District Commission exceeded its jurisdiction by awarding the above amount and the State Commission wrongly upheld the said Order without addressing its illegality.

d. The dispute with the Respondent is regarding the settlement of account and is not related to deficiency of services. The dispute is purely commercial in nature and the arbitration clause in the agreement is the only method through which the dispute should be settled. The State Commission and District Commission overlooked the fact that the Complainant did not pay even a single instalment and that the Petitioner has still kept the vehicle in its possession, not auctioning it for the purpose of settlement of account with the Complainant;

e. The District Commission awarded an exorbitant amount to the Complainant arbitrarily and without any rational;

7.       The Ld. Counsel for Petitioner/Financier argued that the truck was never in possession by the Petitioner but it was only physically inspected and was then handed over to the Complainant.  Further, the Petitioner did not take any original documents from the Complainant; That the Complainant made decent profits from the said truck but didn’t pay even a single instalment, and when the Petitioner started to pursue the Complainant for its pending dues, the Complainant himself stated that he is not able to pay the outstanding dues and thus surrendered the vehicle by furnishing an undertaking dated 11.06.2008; That in the said undertaking, the Complainant stated the Petitioner may auction the said vehicle after three months if he is not able to pay the outstanding amounts. Although, the vehicle was never auctioned and is still lying in the yard of the Petitioner; That the Complainant instituted the proceedings with an ulterior motive by falsely alleging that the vehicle was never released and that he was asked for parking charges; That the Petitioner duly appeared before the State and District Commissions and explained that the vehicle was surrendered by the Complainant himself vide an undertaking, but surprisingly the District Commission wrongly observed that the signature on the undertaking did not match the signature on the vakalatnama and therefore disregarded it without taking opinion of any expert; That on the basis of the application submitted to the RTO for hypothecation, the District Commission inferred that the said vehicle was with Petitioner upto 25.08.2007 and that it was upon the Petitioner to prove that the vehicle was handed over after that date; That the State Commission and the District Commission wrongly held that the vehicle was sold even though no such information was included in the Petitioner’s pleadings; That the State Commission wrongly upheld the Order of the District Commission without providing any proper reasoning.

8.      Heard the Ld. Counsel of both parties and perused the material available on record.

9.      Both the Ld. Fora below had decided in favour of the Respondent/Complainant as they both found the version of the Petitioner/Opposite Party to be contrary to the material on record.  It was the case of the Petitioner that delivery of the vehicle in question was voluntarily made over to it by the Complainant on 11.06.2008, and to support this contention, the Petitioner had led into evidence from its side the Undertaking purportedly given by the Complainant in this regard.  But the Ld. District Forum did not accept such document as it was of the opinion that the Complainant’s alleged signature upon the same did not match with that in the Vakalatnama on record. The Petitioner now contends that the Ld. District Forum in such a situation ought to have taken the opinion of any Expert to verify the genuineness of the signature.  But this submission is altogether untenable because, once the signature on the disputed document had been denied on behalf of the Complainant, the burden of proof automatically shifted upon the Petitioner to do the needful for proving that such signature was actually genuine.

10.    Thereafter, the Ld. State Commission rightly observed that even assuming for academic sake that the signature was genuine, still the own Inventory List drawn up by the Petitioner dated 09.08.2007 directly falsified the story of voluntary surrender of the vehicle by the Complainant on 11.06.2008, since such Inventory List showed that custody of the vehicle had already taken by the Petitioner Company by way of repossession on 09.08.2007 itself, at 2.15 p.m., from the premises of “Kanchan Plastics”.

11.    A copy of the said Inventory List has been filed on behalf of the Respondent/Complainant, which clearly goes to show that such repossession of the vehicle had already been taken by the Petitioner Company on 09.08.2007 as already noted above.  Understandably, the Petitioner has not filed the copy of the alleged Undertaking of voluntary surrender imputed to the Complainant along with this Revision Petition, which both the Ld. Fora had found to be not reliable.  This Commission therefore sees no ground whatsoever to interfere with the concurrent decisions of both the Ld. Fora below.

12.    The Revision Petition is, therefore, dismissed, and additional Litigation Costs of ₹ 10,000/– are now awarded to the Complainant.

13.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.