Haryana

Ambala

CC/331/2017

Dharamvir - Complainant(s)

Versus

Samrithi Hyundai - Opp.Party(s)

Bhupinder Singh Garg

30 Aug 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

       Complaint Case No : 331 of 2017

        Date of Institution    : 25.09.2017

          Date of Decision       : 30.08.2018

 

Dharamvir son of Shri Lajbir Singh resident of House No.1251, Rajputana Road, Shehzapur Tehsil Naraingarh District Ambala.

……Complainant.

 

Versus

 

1. Samrithi Hyundai, village Tepla, Ambala Jagadhari Road, District Ambala through its Manager.
2. Magma Finance Corporation Ltd, Magma House No.24 Park Street, Kolkata through its Finance Secretary.
3. Magma Finance Corporation Ltd. near Vijay Rattan Chowk, Ambala Cantt. through its Branch Manager.

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:       SH.D.N.ARORA,PRESIDENT.

                        SH.PUSHPENDER KUMAR,MEMBER.

                       

Present:          Sh. B.S.Garg, Adv. for complainant.

                        Sh.Vishal Mittal, Adv. for OP No.1.                                                                                  Sh.Punjeet Sirpaul, Adv. for OP Nos. 2 & 3.

 

ORDER

 

                        The complainant has filed the present complaint against the OPs with the averments that on 11.06.2015 he had purchased one Xcent S/D/ white for Rs.6,59,169/-  by making cash payment. Out of the said amount Rs.5 lac were paid by the father-in-law of the son of complainant and the delivery of the vehicle was given in the evening on 11.06.2015. The complainant had also purchased another vehicle on the same date i.e. Xcent CRDI-S for Rs.7,23,549/- which was got financed from OP Nos. 2 & 3 and employee of Op No.1 obtained his signatures on several printed papers with assurance to collect the vehicle after a week. Thereafter, the complainant visited OP No.1 number of times for obtaining the sale letter etc. so that the vehicle could be registered but OP No.1 forcibly received Rs.62000/- vide receipt dated 03.06.2016 and only then handed-over the papers thereof after obtaining signatures of the son of the complainant  on written papers.  The complainant visited the Registration authority but it demanded Rs.1 lac for registration of the vehicle including penalty amount.  Now, it came to notice of complainant that OPs inconnivance with each have shown loan of Rs.7,23,849/- on some other vehicle Xcent CRDI-S-BSIV which was never delivered to the complainant. The Op Nos. 2 & 3 have falsely shown the vehicle financed by them after hatching a conspiracy with each other. There is also deficiency in service on their part. The complainant requested the Op No.1 to deliver the vehicle but it put off the matter on one pretext or the other.  He also requested the Op Nos. 2 & 3 not to recover any amount but they are adamant and totally refused to accede to the genuine requests of complainant and even has obtained the arbitration award against the complainant.  In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C9.

2.                                 On notice Ops appeared and filed their separate replies. Op No.1 in its reply has submitted that there is no deficiency in service on the part of OP No.1 as only one car was purchased after getting the same financed from OP Nos. 2 & 3. The complainant had sold his Dezire car to other person and OP No.1 had to pay loan to Indus Ind Bank since it was on loan with the said bank which he failed to pay and only Rs.8,000/- were earned on said sale as whole amount was deposited in loan account of Op No.1. No cash payment was made by complainant as alleged for purchase of car and as and when the complainant purchases the car from OP No.1 it got financed every occasion.  The model of the car, chasis number and engine number are the same and the story of second car is fake. The loan amount was disbursed and there is no question of any cash payment.  Objections about concealment of material facts, locus standi and maintainability etc. have been taken. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

3.                                 OP Nos.2 & 3 in their joint reply have submitted that the complainant is willful defaulter from the very beginning and never paid the installments in time and therefore, an amount of Rs.7,71203/- was pending on 04.01.2018 and the present complaint has been filed just to grab the loan amount.  The complainant on another vehicle X CRDI-S BSIV while was also agreed to be purchased for Rs.723849/- which was got financed by Op Nos. 2 & 3. The employee of Op No.3 did not obtain any signatures of the complainant on printed as well as blank papers. The delivery of Xcent S/D while was delivered to the complainant on 11.06.2015. The delivery of the second vehicle Xcent CRDI has not been delivered to the complainant till date.  After grate struggle  the OP No.1 received a sum of Rs.62000/- forcibly vide receipt dated 03.06.2016  and only than requisite documents were handedover to the son of the complainant. No criminal conspiracy has been hatched by showing the loan on non-existing vehicle. Objections about jurisdiction of this Forum, concealment of material facts and maintainability etc. have been taken. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RX and documents Annexure R1 to Annexure R11.

4.                                 We have heard learned counsel for the parties and gone through the case file very carefully.

5.                                 Before proceeding further it is desirable to go through the fact that the award in the present dispute has already been passed by the arbitrator. This fact has been mentioned by the complainant in para No.7 of the complaint.  On this point learned counsel for the OPs drew the attention of this Forum towards the award dated 08.06.2016 Annexure R3. It is established that the award has been passed and there is nothing on the case file to show that the complainant has challenged the award dated 08.06.2016.  The legal position is not disputed. The award already made through the arbitration proceedings is binding between the parties. The arbitrator had passed the award dated 08.06.2016 before the filing of the present complaint which was filed on 25.09.2017. As per this award dated 08.06.2016 Annexure R3 the arbitration proceedings were initiated in the year 2016 i.e. much before the filing of the present complaint. Surprisingly, the complainant did not challenge the Arbitrator Award. Instead he filed the present consumer complaint before this Forum. When an award in the arbitration proceedings had already been passed, before filing of the consumer complaint, under these circumstances the consumer complaint filed against the OPs is not maintainable at all. On this point reliance can be taken from the case law titled as Jitender Kumar DEO Vs. Magma Finance Corporation decided by Hon’ble National Commission on 25.03.2014 in RP No.2735 of 2013.  There is no need to discuss other point.

                                                Keeping in view the above facts and circumstances we are of the considered view that the present complaint is not maintainable before this Forum, therefore, same is hereby dismissed leaving the parties to bear their own costs. Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced on: 30.08.2018                                                            (D.N.ARORA)

                                                                                                  PRESIDENT

                                                                                               

 

                                                                                    (PUSHPENDER KUMAR)

                                                                                                MEMBER