Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER

This is an application under section 12 of the Consumer Protection Act, 1986.

It is stated that the Complainant had taken loan from the OP-1 for Rs. 333778/- for purchasing a car, model no. INDICA TAXI, engine no. 475IBI03KSZBE 1885, Chassis no. 600137 KSZPE 3957, registration no. WB- 04d-1842 on 14.06.2008. Repayment of installments for the loan amount was fixed at the rate of Rs. 9537/- into 36 months.

The Complainant stated that he paid all installments but the fourth installment which was given by cheque was dishonoured though the Complainant paid the same in cash through agent of OP-1 namely Sushanta vide receipt no. 11356 dated 23/03/2009. The Complainant stated that even after clearing the loan amount the Opposite Parties did not issue NOC in respect of due clearance in favour of the Complainant. As a result the Complainant could not convert registration from commercial tax(i) to private tax(i) and she had to pay high amount of tax and incurred a huge loss for non-issuance of NOC. Her ownership of the car could not be established. The OPs had issued NOC in respect of “Change of registration from commercial carriers to private carriers dated 17.09.2011 “and “Issue of duplicate registration certificate dated 15/09/2010”, both NOC were signed by Amitava Choudhary and Avijit Debnath respectively.

The Complainant stated that she sent letter to O.P. on 23.02.2012 but without any result and she talk with O.P. for issue of NOC in respect of due clearance of loan amount. In respect of taking action the O.P. sent a legal notice which was received by the Complainant on 12.01.2013 on some falls allegations. The petitioner stated that she had sent on 28.01.2013 a letter to the Ld. Advocate of O.Ps. but no fulfil result came out.

At para 8 of Complaint, the complainant stated that the OP -1 moved an application before the hon. DLSA vide PL Mt no. 263/13 and a notice was issued to the Complainant on 25.05.2013 for appearance before the Lok Adalat at Alipore Judge’s Court, where the matter was disposed of by the Lok Adalat that there was no outstanding due pending on behalf of your petitioner and the LoK Adalat was directed her to collect the NOC. But when the Complainant went to office of O.P.-1 the matter was deferred the matter on different please. It is also added at para 8 that no result came out even after her Advocate R. N. Moitra sent letter on 10.03.2017 to the O.P.-1.

The Complainant stated that the cause of instant case first arose in 2012 and the same is continuing.

            The Complainant prayed for direction on the O.Ps. to issue NOC in respect of due clearance of loan amount and for payment of Rs. 80,000/- as compensation.

            Written Version by O.Ps.

The Opposite Parties stated that The Complainant is not maintainable in the eyes of law as the relationship of the Complainant and the O.P.-1 is not that of a Consumer and a service provider and/or seller of any goods.

            That the Complaint filed by a Complainant does not fall with the definition of a ‘Consumer Dispute’ under the Consumer Protection Act as there is neither any unfair trade practice adopted by the O.P.-1 nor any deficiency in service being established against the O.P.-1.

            The O.P.-1 had lent money to the Complainant, the total amount being Rs. 333778/-. The amount which still remains due and payable sum of Rs. 16290/- as overdue installment and Rs. 14687.35/- as accrued interest, being a total sum of Rs. 30977/- as on 05.05.2017. Moreover, the payments made were highly irregular in nature and was hugely delayed. As on 14.07.2017, there was a delay of 1248 days in payment of dues.

            It is also stated that the Opposite Party Tata Motor Finance Ltd. is only a financier and the nature of transaction between the Complainant and the Opposite Party Tata Motor Finance Ltd. is Banking in nature and not that of a Consumer and service or that of a consumer and a seller of goods.

            The Complaint entered into an Arbitration Agreement with the Respondent. Havingonce chosen a Forum the Complainant is barred from approaching any other Forum except the Arbitral Tribunal in terms of the Loan Agreement.

            It is averred that the onus lies on the Complainant to show that the reliefs as contemplated U/s 14 can be given for the deficiency in service provided to the Complainant. There has been no unfair trade practice adopted by the Opposite Party. Opposite Party is not a service provider at all. The nature of business is to provide finance as a Non-Banking Financial Corporation.

            At para 3 (b), in reply to Written Version of Complainantparagraph 3 and 4, the O.Ps. Stated that the Complainant taken loan from the Opposite Party of Rs. 333778/- for the purpose of purchase a car. The numbers of installments fixed were 36 months and for the first month it was Rs. 9520/- and for the rest 35 months it was fixed as Rs.  9537/-.

            At para 3 (c) in reply to Written Version of Complainant paragraph 5 and 6, the O.Ps. stated that the Complainant paid all installments but the fourth installments was paid all the installments but the fourth installaments was paid by cash in the hand of an agent of Opposite Party-1  namely Sushanta vide receipt no. 11356 dated 23.03.2009. No receipt was annexed in the petition as a proof. The company is very strict about issuing receipts for any cash transaction.

            The complainant moved an application before the Lok Adalat where the Complainant and the Opposite Party both were present but no Order was passed against the Opposite Party to issue a NOC to the Complainant.

            The Complainant would not fall under the purview of a “Consumer” U/s 2 (d) (i) of the Consumer Protection Act, 1986 in relation to the Opposite Party.

            O.P. finally stated that the Complainant should be dismissed in limine with costs.

Points for Discussion

1) Whether the complainant isa consumer under the O.Ps.and whether the complaint is maintainable;

2) Whether the O.Ps.aredeficient in rendering service to the complainant;

3) Whether the complainant deserves relief.

Decision with Reasons

1) At the outset it should be noted that a petition was filed by the Opposite Parties challenging the maintainability of the Complaint on 25.08.2017. A number of dates passed for hearing of the said petition including the written objection filed by the Complainant also on 07.09.2007. Finally it was agreed by both the parties vide order 11 dated 01.12.2017 that the fate of the maintainability petition would be decided on the date of final hearing and it was heard on 14.09.2018. 

2) Now, it is the cardinal principle of law that before adjudicating the points of merit in any matter, any judicial Forum ought to take up points of jurisdiction raised by the Parties, in particular, the maintainability of the petition in this case.

So, we should determine whether Complaint is maintainable in the eye of law before we judge its merits. The Chief points of maintainability as depicted in the petition of O.Ps.challenging the maintainability are as follows.

1. The Complainant  does not fall under the purview of definition of a consumer under section 2 (d (i) of the C.P. Act;

2. The transaction between the Complainant and O.Ps. is that of financial/ Banking transaction and the essence of the transaction is the extension of credit for the

purchase of a vehicle and no consideration has passed from the Complainant to the Opposite Parties;

3. This transaction cannot be classified into a consumer – seller of goods/ service provider relation;

4. At para 7 of the Maintainability petition,the O.Ps. claimed that the Complaint is barred by Limitation. It is also stated that the Complainant tried to obtain NOC in 2013 but already 4 years passed from occurrence of main matter and so the whole Complaint is under laws of Limitation;

5. The Complainant chose Arbitration as a Forum of adjudication of disputes.

So, the Complainant is barred from approaching this Ld. Forum;

6. At para 14 of the petition, O.Ps.insisted on that the instant point of jurisdiction and point of maintainability be decided at the outset, else O.Ps.will suffer irreparable injury and prejudice and prayed for dismissal of the application on grounds of maintainability.

3) (i) In the written objection to the petition of O.Ps. challenging the maintainability, the Complainant stated at para 2 that the Complainant is a consumer under Opposite Parties as she took the service from them;

(ii) At para 2 of the objection, the Complainant stated that she is a consumer under the Opposite Parties and paid all dues to the O.Ps., so it is duty of O.Ps. to issue NOC;

(iii) At para 3, the Complainantstated the transaction between the Complainant and O.Ps. is financial/Banking transaction  as she paid interest for the loan, then on the basis of that relation the Complainant is a consumer under the O.Ps.;

(iv) At para 4, the Complainant demanded that she hired the facility of credit from O.Ps.by paying more interest upon credit, so, she is a Consumer under them and they cannot escape from their duty to issue NOC;

(v) At para 7, the Complainant referred Lok Adalat case no. PL Mt. no. 263/13 stating that it was settled that there are no outstanding dues and they should issue NOC;

But the Complainant could not file any Order of the Lok Adalat in this regard.

vi)At para 9, the Complainant has stated that this Forumhas the jurisdiction to entertain the Complaint petition. She prayed for dismissal of the petition of the O.Ps. challenging the maintainability;

Bothe sides filed the judgement of Laxmi Engineering Works vs. PSG industrial institute, (1995) 3 Supreme Court cases 583, in support of their points.

The Opposite Parties quoted the section for being a Consumer as “2 (d)(i)” but it should be section “2 (1) (d) (ii)”.

4)At para 2(c) of WV, the O.Ps.stated that the payments were highly  irregular in nature and  hugely delayed. As on 14.07.2017 there was a delay of 12480 days in payment of dues.

We like to assert that we ignore the points of whether the Complainant is a Consumer under the O.Ps. or not, because the Complainant availed the financial services of the O.Ps. against consideration by way of interest.

.

We also ignored the point of the O.Ps. that this Forum has nojurisdiction to entertain the Complaint as the Complainant had chosen the arbitration for resolving dispute. In this point, there are a number of judgements passed by the Hon’ble Supreme Court as well as section 3 of consumer protection Act, 1986 being a Central Act, it is the option of the affected party which Forum should be preferred by him/ her to seek redressal of his her grievances – the Consumer Forum or the Arbitrator or Civil Court unless there is an express bar. In this case, the O.Ps.could not file evidence of statutory provision that the Consumer Forum is barred from entertaining this Complaint. By putting a clause of Arbitration under clause 23 of the Loan come hypothecation cum guarantee Agreement, a purchaser / Complainant cannot be deprived from exercising his/her right as envisaged under section 3 of C.P. Act.

But we are thinking another point.

5) During final argument Ld. Advocates of Opposite Party were insisting on the Limitation of the case under provision of section 24 A of the C.P. Act and at para 10 of the Brief Notes of Arguments, the O.Ps. reproduced the section 24 A in the C.P. Act,  and stated that the Complainant filed the Complaint after 5 years form the occurrence of the purported cause of action as stated in the Complaint (in 2012) and the said Complaint is barred by the law of Limitation.

            The Complainant could not file befitting reply to such point of Limitation and her Advocate was repeating the point that it has a continued cause of action.We are not convinced on such interpretation of the case being barred by Limitation. 

6) It appears from the annexure vide Loan recall notice on behalf of Tata Motors Finance Ltd. for termination ofAgreement / contract bearing no. 5000298735 written to the Complainant on 12 January, 2013 by the Advocates of O.Ps. , that the loanAgreement was terminated  for being default of payment of Rs. 40333.3 as calculated on  the said date unless the Complainant paid the amount within 7 days from receiving that notice. The Complainant presumably did not pay that  amount because she demanded full repayment of loan. So, the Complainant should have taken action against the O.Ps.on or after 12^th January 2013.She only sent a letter dated 28 January, 2013 denying the contents of O.Ps’. legal notice dated 12.01.2013.

7) At this juncture of time, it is close of September, 2018 and a period of more than 5 years elapsed. The Complainant filed the Complaint on 30.05.2017 i.e. after more than 4 years and a half from the last date of cause of action (12.01.2017).

8) As per section 24 A as insisted on by the O.Ps., a Complaint should be filed with 2years from the cause of action but in this case such time limit has long elapsed. This Forum could have considered some time in excess of such Limitation if prayer to such effect was filed by the complainant explaining the delay but in the instant case, no such petition for condonation of delay has been filed, nor even has been mentioned in the Complaint.

            So the complaint is barred from Limitation.

It is pertinentto point out that Ld. Advocate for the Complainant inserted under hand writing  at the end of para 8 of the Complaint  the mention of her advocate’s letter sent on 01.03.2017 to O.Ps.

We assume that this letter might have beensent to the O.Ps.to revoke Limitation for cause of action, after keeping long silence. But she cannot do so.

It has been the settled Principle of Law that mere sending notice or legal letter or representation does not constitute a cause of action nor does it extend period of Limitation, vide citations :

1. I (2016) CPJ 190 (NC) in Janastta Sahakari Awas Samiti Ltd. – vs. – Cone Elevators India Pvt Ltd. and another,
2. I (2015) CPJ 131 (NC) in Champaben  Atma Ram Thakron – vs. – Regional Provident Fund Commissioner and another,
3. II (2018) CPJ 245 (NC) in Punjab Small Industries and Export Corporation Ltd. and another – vs. – Satinder Pal Singh.

So, we reiterate that the Complaint is barred by Limitation and so not Maintainable.

9) Consequently, We admit the petition of the O.Ps.Challenging the maintainability of the Complaint petition and reject the written objection of the Complainant against such petition of the O.Ps.Challenging the Maintainability of Complaint petition.

10) Since the Complaint is not at all Maintainable being barred by Limitation, we need not go into the merit of the case, as a settled principle of law.

In the circumstances, we are constrained to pass

ORDER

That the complaint beand the same is dismissed against the O.Ps.in terms of section 13 (2) (b) (i) of the C.P. Act, 1986, being barred by Limitation under section 24 A of the said Act;

No order as to cost;

Let copy of the judgement be handed over to the Parties when applied for