Complainant Devinder Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to issue no due certificate and they be directed not to give threats to him and opposite party be burdened with compensation of Rs.60,000/- on account of loss of business to the complainant. Complainant had also claimed Rs.30,000/- for mental harassment along with Rs.5,000/- as litigation expenses.
2. The case of the complainant in brief is that he was owner/driver of truck No.PB-06-B-6597 and same was financed with opposite party. Complainant due to some dispute with the opposite party filed a complaint before this Ld. Forum vide No.34 of 2013 which was decided on 17.2.2014 in his favour. It was pleaded that in the above mentioned order Ld. Forum ordered that the installments already made by the complainant to the opposite party including Rs.30,000/- paid on 31.01.2011 would be adjusted by the opposite party and thereafter fresh loan case would be started. It was pleaded that opposite party paid the compensation and costs to the complainant and without adjustment as ordered by this Ld. Forum new loan case was started by the opposite party and complainant paid Rs.20,000/- on 30.09.2014 and also paid Rs.4,00,000/- on 15.11.2014 to the opposite party as full and final payment. It was further pleaded that complainant made full and final payment but even then the opposite party had not issued no due certificate and rather they again threatened him that they will take forcible possession of the truck in question by saying that they had not received the amount of Rs.4,00,000/-. It was also pleaded that due to the threat of the opposite party and their employees complainant was under constant threat and he was unable to run his truck and was facing financial loss for last two months and he was suffering mentally as well as physically due to act and conduct of the opposite party. It was next pleaded that complainant is the consumer of the opposite party and in the light of the above said facts and circumstances it is clear that opposite party is liable for deficiency in service, hence this complaint.
- Notice of the complaint was served upon the opposite party who appeared through their counsel and filed the written reply by taking the preliminary objections that complaint was not maintainable against the opposite party; that jurisdiction of this Ld. Forum was barred as complainant was using the said vehicle for commercial purpose and earning profits only and there was an arbitration agreement between the complainant and the opposite party to raise all the disputes, issues, rights and liabilities before the Arbitrator only; that complainant had not come to the Ld. Forum with clean hands and had filed this false and frivolous complaint against the opposite party with an ulterior motive to delay the payment of the due loan installments and as such complainant is liable to pay the exemplary costs for this illegal act. On merits, it was admitted that complainant had filed a complaint before this Ld. Forum and vehicle in question was hypothecated and financed with them. It was denied that complainant was driver of the truck bearing Registration No.PB-06B-6597 whereas he had purchased the same for commercial purpose and earning profits only and he had further appointed drivers for plying the vehicle in question. It was stated that opposite party had complied with the directions of this Ld. Forum. It was denied that complainant had paid any amount of Rs.20,000/- on 30.09.2014 and Rs.4,00,000/- on 15.11.2014 to the opposite party as full and final payment and complainant was required to put strict proof to prove this fact. It was denied that complainant had paid the full and final payment to the opposite party and as such question of issuing no due certificate to the complainant does not arise. It was further denied that opposite party had ever issued threats to the complainant that they will take forcible possession of the truck in question by saying that they had note received the amount of Rs.4.00 Lakhs. The fact of the matter is that complainant never deposited the amount of Rs.4.00 Lakhs with the opposite party as alleged in this para. It was stated that complainant was plying the truck in question by employing the drivers and earning profits from this business and he had filed this false and frivolous complaint to delay and avoid the due loan installments to the opposite party. It was denied that complainant is consumer of the opposite party under the provision of the Consumer Protection Act as he had plied this vehicle for commercial purpose and earning profits only. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint with exemplary costs.
4. Complainant had tendered into evidence his own affidavit Ex.C1 along with document Ex.C2 to Ex.C4 and closed the evidence.
5. Sh.Saurav Saini Retainer Advocate had tendered into evidence his own affidavit Ex.OP1 along with document Ex.OP-2 to Ex.OP-4 and closed the evidence on behalf of opposite party.
6. We have thoroughly examined the available documents/evidence as produced on the records (of the present proceedings) so as to interpret the meaning and purpose of each document and also the scope of adverse inference (if any) on account of some of the documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels of the litigating contestants. We find that the present complaint has transpired as a result of ‘non-issuance’ of the No Due Certificate by the OP. Moreover, the complainant has vividly alleged in his complaint (duly supported by his affidavit Ex.C1) that the OP started a new loan without giving any adjustments as directed by this forum in the previous complaint filed by the complainant. It is next alleged that the complainant paid Rs.20,000/-to the OP on 30.9.2014 and also paid Rs.4,00,000/-to the OP on 15.11.2014 as full and final payment. The OP Financers, in rebuttal, has somehow allegedly stated (as also ‘partially’ deposed in ‘affidavit’ Ex.OP1) that the OP had complied with the directions issued by this Ld. Forum. As per version of the OP the complainant never deposited the amount of Rs.4,00,000/- and Rs.20,000/- with the OP as alleged by the complainant and as such question of issuing of no due certificate to the complainant does not arise. There has also been an exchange of other inter-se allegations involving many complex questions of facts (and also of law) inseparably bonded to the present dispute/complaint (both primarily and collaterally) desiring a simultaneous resolve requisitioning a complete comprehensive trial that may comprise of exhaustive examination of ‘witnesses’ etc and that shall not be statutorily feasible under the ‘summary’ procedure as prescribed to the applicable ‘statute’, here.
- In the light of the all above, the present complaint is hereby disposed off with the directions to the present complainant to seek an appropriate ‘judicial resolve’ to his dispute before the ‘civil-court’ of competent jurisdiction. No orders as to the present costs.
- Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
JUNE, 13, 2016 Member.
*YP*
