Haryana

Yamunanagar

CC/170/2013

Puran Chand S/o Braham Singh - Complainant(s)

Versus

Shiv Motor - Opp.Party(s)

K.K.Gupta

04 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                   Complaint No. 170 of 2013                                                                    

                                                                   Date of institution: 01.03.2013

                                                                   Date of decision: 04.08.2017.

 

  Puran Chand aged about 50 years, son of Shri Braham Singh, resident of Lakshmi Nagar, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

 

                                                                                                                       …Complainant.

                                      Versus

1. Shiv Motor, Kanhaiya Sahib Chowk, Jagadhri Road, Yamuna  Nagar, Dealer APE Three Wheelers, through Chaman Lal.

 

2. M/s  Mahindra and Mahindra Financial Services Limited C/o Sudarshan Tower. Above The bank of Rajasthan, IInd Floor, Cross Road No.1, Ambala Cantt.-133001 through its Manager.

 

3. M/s Mahindra & Mahindra Financial Services Ltd. having its regd. office at 2^nd Floor Sadhana, House Behind Mahindra Tower, 570 PB Marg, Worli, Mumbai-400018 through its MD.

                          …. Respondents.

                  

BEFORE     SH. DHARAMPAL, PRESIDENT

                   SH. S.C.SHARMA, MEMBER.

                   SMT. VEENA RANI SHEOKAND, MEMBER.    

 

Present:       Sh. KK Gupta, Advocate, counsel for complainant.   

                   None for OP No. 1.

                   Sh. Balraj Rana, Advocate, counsel for OP No. 2 and 3. 

 

ORDER     (DHARAMPAL  PRESIDENT)

 

1.                Complainant Puran Chand has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date (respondent hereinafter will be referred as OPs). 

2.                Brief facts of the complaint, as alleged by the complainant, are that the complainant had purchased one three wheeler from OP No.1 and the same was got financed by OP No.1 from the OP No.2 and 3, after paying Rs.35000/- by the complainant as margin money, vide loan agreement No.530352 dated 11.11.2006. The loan amount was to be repaid in 20 equal monthly installments to the tune of Rs.4160/- each. It is alleged that due to some unavoidable circumstances, the complainant was unable to deposit the installment after, October 2008 as his daughter was ill and suffering from depression and the complainant was busy for her treatment. It is contended that the muscleman of the OPs forcibly lifted the three wheeler and several requests were made with the OPs for return of the three wheeler, but the OPs told that they have sold the same to recover the outstanding amount, the act of the OPs is illegal and not fair. It is averted that the OPs sent illegal notice dated 22.08.2012 to the complainant demanding an amount of Rs.52206/-  and prayed for acceptance of the complaint and directing the OPs to hand over the three wheeler of the complainant, not to misuse the blank cheques of complainant in their possession and to return 10 blank cheques. They may further be directed to pay compensation to the tune of Rs.40,000/-  for causing mental agony and harassment etc.

3.                Upon notice, OP No.1 appeared and filed its written statement taking some preliminary objections such as complaint is not maintainable against the answering OP as no cause of action arise against the answering OP and on merit rest contents of the complaint were denied being relating to OP No.2 and 3 and prayed for dismissal of the complaint qua the OP No.1.

4.                OP no.2 and 3 appeared and filed their written statement taking some preliminary objections such as present complaint is not maintainable as the complainant has suppressed the material facts from this Forum.  The true facts are that the complainant has availed the loan from the company and the complainant is bound by the agreement and as per agreement the complainant is bound to repay the loan in monthly installments but the complainant did not turn out to be a good borrower, he committed regular and intentional default and did never obey his commitment of timely payments. The complainant himself surrendered the vehicle as the complainant made a request that he is unable to pay the installments and thereafter the company sent  a pre sale notice and requested the complainant to deposit the amount but in spite receiving the notice, the complainant did not pay the loan amount and thereafter OPs sold the vehicle and gave a short fall notice because after selling the vehicle, the OPs suffered a loss of Rs.63003/- and after receiving the short fall notice the complainant issued a cheque of Rs.63003/- drawn on Canara Bank Jagadhri which was dishonoured vide memo No.dated 22.02.2009. It is further alleged that the matter relates to year 2008 and it is unbelievable that a person whose vehicle was forcible taken kept mum for such a long time and never made a complaint to any authority or any court. The present complaint is time barred because the matter belongs to the year 2008 and complainant has filed this complaint in the year 2013 after a gap of five (05) years. It is alleged that this forum was no territorial jurisdiction as per agreement and on merit it is stated that the three wheeler was got financed by the OP No.2 and 3 vide loan agreement no.530352 dated 11.11.2006 to be repaid in 36 installments of Rs.4160/- each. It is alleged that the complainant has failed to deposit the remaining installments and himself surrendered the vehicle in question to the complainant. It is also denied that the OPs have sent a notice dated 22.08.2012 to the complainant for demanding amount of Rs.52026/-. Remaining contents of the complaint are denied by the OPs and prayed for dismissal of the complaint.

5.                The learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A along with documents such as receipts of payment as Annexure C-1 to C-8 and notice issued by OP No.3 dated 08.10.2008 as Annexure C-9 and closed the evidence on behalf of complainant.

6.                OP no.1 have failed to adduce any evidence and the evidence of OP No. 1 was closed by Court order vide order dated 07.04.2016.

7.                On the other hand, learned counsel for the OP No.2 and 3 tendered into evidence affidavit of Shri Ravinder Pruthi, Power of Attorney holder of Mahindra & Mahindra as Annexure RW2/A along with documents such as statement of account as Annexure R2/1,
Contract Settlement sheet as Annexure R2/2, loan agreement as Annexure R2/3, Schedule -1 as Annexure R2/4 and closed the evidence on behalf of OP No.2 and 3.

8.                We have heard learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely and carefully. Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance, whereas the counsel for the OPs reiterated the averments made in the reply and prayed for its dismissal.

9.                It is not disputed fact that the complainant has got financed loan for his three wheeler vide loan agreement No.530352 dated 11.11.2006 and the same was to be paid in 36 equal monthly installments of Rs.4160/- as per Schedule 1 (Annexure R2/4). From perusal of the documents (Annexure C-9) which is notice dated 08.10.2008 given by the OP No.3 to the complainant wherein it is clearly mentioned that the complainant has surrendered his vehicle and a last chance was given to the complainant for repayment of the entire amount as per agreement within seven days but the complainant has failed to deposit the same. Moreover, the complainant had issued the cheuque of Rs.63003/- which was dishonoured on 22.02.2009 for the short fall amount.

10.               Before going on the facts of the case, the foremost question  which arise before us whether the complaint is hopelessly time barred as per Consumer Protection Act or not?

11.               The present complaint was filed by the complainant on 01.03.2013 whereas the vehicle in question was surrendered by the complainant on 08.10.2008 (Annexure R2/2). And as such the matter/dispute  relates to the year 2008 and the complainant has filed this complaint in the year 2013 after a long gap of about 05 years, which is beyond limitation.

                   Section 24A of the Consumer Protection Act, is reproduce as under:

            Limitation period. - (l) The District Forum, the State Commis­sion or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)     Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

 

12.               Further, the case law titled as Sigma Diagnostics Ltd., Vs. United India insurance Co. Ltd and another, III (2009) CPJ Page 75 (SC), Pappu Managaratanum Vs. Sai Sha Finance and Chits and another, 2015(1) CPJ Page 105 (NC) wherein it has been held that Limitation-Condonation of delay- Service of Legal notice not extend period of Limitation- cause of action arose on 01.04.2001 when complainant deposited sum of Rs.345000/- as fixed deposit for one year- Plea of complainant that cause of action will arise from the date of service of legal notice dated 20.05.2004, not accepted – Complaint barred by Limitation.

13.               The pleadings of the complainant is not believable that the OPs had issued a notice dated 22.08.2012 to the complainant demanding an amount of Rs.52,026/- because the complainant has not filed any notice with his complaint. Moreover, the complainant has neither filed any application for condonation of delay nor any explanation has been mentioned in the complaint. So, the complaint of the complainant is hopelessly time barred as per Section 24A (i) of the Consumer Protection Act, 1986. The authorities (Supra) tendered by OPs are fully applicable in the present case.

14.               In view of the above discussion, this Forum is of the considered view that the present complaint is hopelessly time barred and the same is hereby dismissed with no order as to cost. Copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

Announced in open court. 04.08.2017

 

                                                     ( DHARAMPAL)

                                                     PRESIDENT

                                                     D.C.D.R.F.YAMUNA NAGAR

                                                     AT JAGADHRI

 

 

(VEENA RANI SHEOKAND)          (S.C.SHARMA)

 MEMBER                                          MEMBER

 

Note:  Each and every page of this order has been duly signed by me.

 

(DHARAMPAL)

                                                            PRESIDENT

                                                      DCDRF, YAMUNANAGAR

                                                            AT JAGADHRI