DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
………………………
Presents:-
- Sri P.Samantara, President.
- Sri G.K.Rath, Member.
Dated, Bolangir the 30th day of March 2016.
C.C.No.58 of 2012.
Dhiraj Kumar Sarangi age-42 years son of Kali Prasad Sarangi.
Resident of Tarbha, P.O/P.S-Tarbha, Dist-Sonepur, At present
Residing at Sambalpur Road Near Petrol Pump, P.O/P.S/Dist-
Bolangir.
.. .. Complainant.
-Versus-
1.Tata Motors Finance Ltd,Sambalpur Branch, N.H.6,Ainthapali,
Budharaja, P.O/P.S/Dist-Sambalpur at present Balaji Tower,2nd
Floor,GM College Road,Sambalpur,represented by it’s Branch
Manager.
2.State Bank of India, Tarbha Branch, P.O/P.S-Tarbha,Dist-
Sonepur, represented through it’s Branch Manager.
.. .. Opp.Parties.
Adv.for the complainant- Sri C.S.Mishra.
Adv.for the O.P.No.1 - Sri B.S.Satpathy & Associates.
Adv.for the O.P.No.2 - Sri A.K.Sarangi.
Date of filing of the case-04.10.2012
Date of order -30.03.2016
JUDGMENT.
Sri P.Samantara, President.
Succinctly say, the facts that germane to the case is that complainant Dhiraj Kumar Sarangi son of Kali Prasad Sarangi, At/Post/P.S-Tarbha, Dist-sonepur filed a case u/s,12 of Consumer Protection Act,1986.
2. The averment is that the O.P has its branch office at Sambalpur although no office at Bolangir and runs his business deputing authorized agents from Sambalpur and this complainant also has cash credit account bearing No-11735010313 retained SBI, Tarbha branch.
3. The complainant also stated at approach of the O.P.1 agent availed a loan finance aggregating to Rs 5,94,140/- with fixed 48 installments payable from 02.04.08 to 02.03.12 and also handed PDC against said installments payable at State Bank of India Tarbha Branch (herein after O.P.-2) In payable to the said fixed installments no cheque was ever bounced at any point of time but at the request of O.P.1,two installments was paid in shape of demand draft vide DD No.941576 dt.03.07.2008 and 704739 dated 29,.03.2010.
4. The complainant as regards to deficiency complained irrespective complete repayment and issuance NOC demand, the O.P.1 raised dues aggregating to Rs 39,932/- held vide letter dt.25.06.2012 as towards accumulation arrear in addition to interest is false misleading and illegal one. Apprised the issue to the O.P repeatedly, non responding and non issuance of NOC failed in ownership transfer thereby suffered loss, harassment and mental agony. Relied on statement of account, loan agreement, repayment schedule & demand notice. Prayed a direction be passed to issue NOC and compensation deemed fit and proper in the interest of justice.
5. In pursuant to notice, the O.P.1 filed the written statement on dt.22.04.2013 denying all the allegations contained in the complaint and submitted that before traversing in detail all material allegations, averments and contentions the question of maintainability be decided.
6. The contention raised that the complaint filed does not fall within provision of a consumer dispute. No unfair trade practice has been established against the O.P. Averments and allegations are frivolous baseless, misconceived and with malafide intent so also short of documentary evidence. Also added that the complainant in this instant case has been a chronic defaulter of the installments. The defaulted rate, part payments, delayed payment charges, accrued overdue charges along with remaining balance towards installments has grossly violated the terms of agreement and it is settled law the complainant is bound by terms and conditions of contract and can not challenge contractual obligation under the terms. More to say the transaction is governed under Arbitration Act 1996,Section 5 bars other court to adjudicate the dispute.
7. Otherwise also submitted that the O.P is neither having its office, nor voluntarily carrying business nor voluntarily resides within the territorial jurisdiction of the forum. The fiance company has absolute right to collect the interest and other charges on any delayed payments.
8. NOC will be issued to the party after clearance of all dues, hence there is no question of harassment and humiliation. The complainant has never maintained adequate balance in the account. The financier is entitled to recover entire due and out-standing as settled by various judgments. Relief as sought is not entitled to, rather liable to pay. Relied on statement of accounts and cardex 1 contract details in photo copy, Prayed in view of the facts and circumstances the complaint is liable to be dismissed with exemplary cost and primarily decide the jurisdiction before the adjudication in entirety.
9. The O.P.2 appeared and not filed any version in reply.
10. Heard both the learned counsels submission and perused the documentary materials on record. Learned counsel at both end urged and stressed the issue of maintainability at thresh hold ,accordingly the discussion is proceeded.
11. We can say, it is settled law jurisdiction comes first and can be raised at any time, during proceeding of hearing. In the instant case, we like to cite the provision contained in section 11 of the C.P.Act.
Section-11-(1)………………………….
(2)A complaint shall be instituted in District forum within the local limits of whose jurisdiction
(a)the opposite party or each of the opposite parties where there are more than one, at the time institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or
(b)any of the opposite parties where there are more than one, at the time of the institution of the complaint actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the district Forum is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain as the case maybe acquiesce in such institution or
© the cause of action, wholly or in part arises.
12. In the present case, the complainant averment goes, the agent of the O.P.1 approached so by implication, the O.P.1, is present & being personally works for gain but no document provided by the petitioner in substantiation of same being in admission as the onus lies with petitioner to prove the existence. On the implication of such section (b) of Sec.11(2),where there are more than one, O.Ps, the mandatory statutory requirement is “leave of the District Forum is given. In this case no such application is made nor allowed or permitted ground has not been recorded, so the petition made in a impoverished provision. Perusal of the records reveal, the petitioner neither resides within the territorial jurisdiction of this forum, the agreement entered at Sonepur. The O.P.2 also resided at Tarbha, Sonepur, cheque issued by SBI Tarbha, Sonepur, Arbitration and Agreement paper discloses, the place as Tarbha Sonepur so by mere addition of an addressed or location at Bolangir, only in the complaint application is no more a statutory compliant one & allowing institution of the lis at Bolangir is not par with the provision mentioned therein. The entire documents each in piecemeal on record did not allow any merit behind the said averred location on Bolangir that is said in cause title of the application.
13. The other part of the section 11 of C.P. Act is clause(c) of sub-section (2) is also a vital statutory requirement in completion of jurisdiction provision-constituents and also the same provision give rise to limitation that contemplated in section 24A.
14. It is well settled principle of law that any relief can be claimed under the Consumer Protection Act,1986 within two years from the date on which cause of action accrues.
In the instant case the petitioner averred under para 10 of the application, the cause of action arose on dt.21.02.2008 when the agents of O.P.1 approached the complainant at Bolangir and on dated 29.02.2008 when the agreement was executed. The case does not constitute a recurring cause of action. The petitioner can not harbour its sweet will to declare any date or goes on saying multiples dates in arising “cause of action”. Only he can assert one with sufficient justification that the cause of action is the sole that determines jurisdiction coupled with limitation. Averring two dates in the application does not bestow with a right to sue , our same view is fortified by the decision in which it is held- “No complaint can be entertained for the same cause of action for a second time”- Mrs Bethela Gabriel Proprietoriv Vs Indian Overseas Bank- 2010(1) CPR 85 (NC).
15. And section 24-A of the Act deals with this situation which reproduced as under.
24-A, Limitation period- (1) 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) Delay condonation.
16. In this case, the admitted date in accrual cause of action is 21.02.2008,so the case should be filed on or before 20.2.2010,where as it is filed on dt04.10.2012 at a too belated stage and no condonation petition is available on the record ,in absence in either way the application lacks mandatory statutory requirement to be allowed with or waived off on recording of which suffers disqualification.
17, Further Section-24A of Consumer Protection Act 1986 is clearly peremptory in nature requiring the consumer for a to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of “cause of action”.
18. Our same view is fortified with the judgment that we placed reliance:- Held- The expression shall not admit a complaint occurring in Section 24A of the Consumer Protection Act is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has bee filed within limitation period prescribed there under. It is duty of the consumer forum to take notice of Section 24A of the Act and give effect to it.-Smt Rukmani Yaa Vs M/S Kirloskar Investment and Finance Ltd.- 2010(1) CPR 201(NC).
19. More over in our considered opinion, the application suffers disqualification of each ingredient under section 11 of Consumer Protection Act 1986. No part of cause of action arose at Bolangir and it is well settled that the expression “cause of action” means that bundle of facts which gives rise to a right or liability. Hence, it is clear the right to sue or right to claim liability giving the cause of action admitted in the complaint is no more tenable one under Bolangir jurisdiction, so also it reveals the application is time barred one thus same is hereby dismissed in the above said coupled way and ipso facto the case is not maintainable.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 30TH DAY OF MARCH 2016.
(G.K.Rath) (P.Samantara)
MEMBER. PRESIDENT.
