KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 529/2005
JUDGMENT DATED: 12-04-2011
PRESENT:
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
M/s Vadappally Constructions,
Ambattukavy, Thaikkattukavu.P.O,
Aluva, Ernakulam (Dist), R/by its : APPELLANT
Managing Partner, V.K.Abdul Niyas,
S/o Late V.P.Kunju Muhammed.
(By Adv.Sri.George Cheriyan Karippaparambil)
Vs.
1. The ICICI Bank Ltd.,
Corporate Office, ICICI Bank Towers,
Bandra Kurla Complex, Mumbai-51,
R/by its Manager (customer care).
: RESPONDENTS
2. The ICICI Bank Ltd.,
Emgee Square, Ernakulam,
R/by its Manager (car loans).
(By Adv.Sri.Lal.K.Joseph)
JUDGMENT
SHRI.M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Ernakulam in OP.589/04 on the file of CDRF, Ernakulam dated:13.03.2005. Appellant is the complainant who prefers this appeal under the order of the Forum below who dismissed the complaint on the basis of non maintainability of the complaint before the Forum below as per the provision of the Consumer Protection Act. The respondents are the opposite parties in the above said OP. The case in brief is that the complainant who is a partnership firm registered under the Partnership Act, who decided to purchase a new brand car exclusively for the use of the Managing partner with financial assistance from the opposite parties. As per the terms of the hire purchase agreement executed between the complainant and the opposite parties, he has to pay a loan amount of Rs.5,00,000/- with interest due thereon in 48 monthly instalments and for repaying the loan amount the complainant, issued 48 post dated cheques, and 2 cheques for Rs.99,000/- and 36 cheques for Rs.13,200/- towards the equated monthly instalments. The complainant was not informed by the opposite party that the cheque will be presented on the 13th day of every month and on the next day if 10th day is a holiday. As per the agreement, opposite parties can charge Rs.200/- for each dishonoured cheque. The deficiency alleged by the complainant in the complaint is that opposite parties are claiming cheque postponement charges for the old cheques. Besides these opposite parties have not presented the post dated cheque for the month of November 2003, December 2003 and January 2004 and thereafter against the terms and conditions of the agreement, opposite parties presented the aforesaid 3 cheques along with February 2004 cheque together and which resulted the dishonour of the aforesaid cheques. Opposite party claiming dishonoured charges and late payment charges from the complainant. Further opposite party is threatening the seizure of complainant’s vehicle. The opposite party is at fault and due to the negligence and deficiency of service of opposite parties. The complainant has suffered loss and damages hence compensation to the tune of Rs.99,000/-.
2. The opposite party appeared and contended in their written version that the complaint itself is not maintainable and that complainant has suppressed important fact that of the filing of the original suit No.1548/04 before the Munsiff Court, Ernakulam for injunction against the opposite parties. Hence this complainant who abused the process of this Forum and wasted the precious time of the consumer justice. The loan of Rs.5.lakhs was advanced on a loan hypothication from guarantee agreement and not as hire purchase agreement as contended by the complainant. A charge has been created on the hypothecated vehicle infavour of the opposite party. As on 23/11/2004 the total amount to the tune of Rs.38,224/- was due and payable as per the agreement. The opposite party can exercise the right or possession of the vehicle and further complainant has executed an (irrevocable power of attorney) infavour of the opposite party to deal with the vehicle for realizing the entire liability in case of default. The opposite party has demanded the amount legally due to them and there is no deficiency on the part of the opposite party. From the aforesaid pleading even without going into the merit of the case on the basis of the proof affidavit and documents Ext.P1 to P8 produced by the complainant. The District Forum has dismissed the complaint primarily on the ground that the transaction is commercial transaction. Hence the complaint is not maintainable.
3. The Forum below examined the entire facts and evidence of the case and heard both sides, passed an impugned order of dismissing the complaint due to the reason for the complaint is not maintainable as per Consumer Protection Act. Forum below taken a view that this is a commercial transaction. It is not coming under the purview of the Consumer Protection Act.
4. On this day this appeal came before this commission for final hearing, the counsel for the appellant and the counsel for the respondents are present and this commission heard in detail both sides.
5. The counsel for the appellant vehemently argued on the ground of the appeal memorandum that the order passed by the Forum below is not in accordance with the provisions of law and evidence and as per the provisions of the Consumer Protection Act. He submitted that the order of the Forum is wrong in the facts and circumstances of the case. He argued that the finding of the Forum below that the transaction which alleged in the complaint is not covered under the provisions of the Consumer Protection Act that it is purely commercial transaction and he is not a consumer, which is not correct. It is invited our kind attention that the National Commission decided this matter in Harisoliya Motors Vs. M/s National Insurance Company Ltd. and Others, reported in 2005 (I) CPR (1) (NC) has held lacking of the meaning of these words “for any commercial purpose would mean that goods purchased or services hired should be used in any activity directly intended to generate profit.” It has been further explained with illustrations in paragraphs 12(ii) that “the use of goods as in this case would not amount to commercial purpose since it is not used in any activity directly intended to generate profit”. But the Forum below taken a view against the settled position of law by the Apex Commission. The Forum below relied on the decision of the State Commission Chattisghad. Another point, the counsel for the appellant submitted that at the time of filing the OP in Munsiff Court, the Consumer Protection Act have no provision to pass an interim relief before passing the final order. It comes only after the amendment of 2003. It is the reason for the complainant who approached the Civil Court and filed an Original Suit for injunction. He point out that the complainant sustained damages that they have no such prayer in the original suit which filed before the Munsiff Court, Ernakulam. The counsel for the opposite parties argued that a Civil Suit was filed by the complainant assigned in the Munsiff Court, Ernakulam and the prayer in the complaint not only the mere injunction but also for directing the defendant to return the cheques with them and to declare that the plaintiff is not liable to pay any penal interest and cheque would purchase to the opposite party and to direct the opposite party to pay the cost of the proceedings. By this Civil Suit the further right of the complainant to approach the Forum below that the same relief is estopped by the law of estoppel and another fact it is submitted by the complainant in the plaint and throughout the original petition which was pending before the Forum below and till the disposal.
6. We are seeing that the complainant availed legal remedies in a competent Civil Court by filing the original suit. The suit is not mere for an injunction. The subsequent prayers for other remedies, the complainant have the opportunity to ask compensation for the very same, in the very same Civil Suit as per the Civil Law. The Munsiff Court, Ernakulam is a competent Civil Court to decide such issues. We don’t know why later the complainant approached this Forum and so for the very same prayer. Here the only question that the deficiency of service or unfair trade practice but the complainant filed a Suit for injunction for other prayers is more enough to ask compensation for the damages. The prayer compensation which covered for entire loss and damages. There is no necessary to limit in the suit for certain purposes and to approach another competent legal Forum for other subsequent damages and loss. The Munsiff Court is a competent Civil Court to decide all this issues. Further he approached this Forum is nothing but abuse the process of justice. In a very same cause of action, the complainant is opted to separate judicial Forums. He has the absolute legal competency and right to locate either of Forums as per this will and pleasure. It is a legal principle in accordance with the doctrine of legislation. But he has no legal right to approach both Forums for the same remedies it is not legally sustainable. But the very same time we cannot agree the view taken by the Forum below that the complainant is not a consumer coming under the purview of the Consumer Protection Act. The earlier position already changed but the same time, the complainant already availed the remedies asked in the complaint by a decree from the Civil Court. It is more and insufficient, suppose he was having a case that he was put in a dilemma in balance of convenience due to the lack of jurisdiction of the Forum below those days to pass the interim order he can approach the Civil Court for that relief alone and he can further approach the Forum below for all other compensations. But in this case he approached with the original Civil Court for the entire remedies and the Court decreed his Cvil Suit by a decree. By this the entire cause of action is over. It is nothing but a law of constructive resjudicata. We are not seeing any reason to interfere in the order passed y the Forum below that dismissed the complaint.
In the result this appeal is dismissed and confirmed the dismissal order passed by the Forum below. Both parties are directed to suffer their respective expenses. The points of this appeal discussed one by one and answered accordingly.
M.K. ABDULLA SONA: MEMBER
M.V. VISWANATHAN: JUDICIAL MEMBER
VL.
