ORDER
( Passed on 21-03-2016 )
Per Mr. B. A. Shaikh, Hon’ble Presiding Member :-
Shri Pundlikrao Ingole present in person. We heard him on the point of admission of appeal and we have perused the papers placed before us. The Facts in brief giving rise of appeal as under. : -
The Appellant purchased Car by taking loan from the Respondent. The Loan was to be repaid as per the agreement with interest in instalments. The Appellant paid four instalments. He did not pay further instalments in time. Therefore, the Respondent seized that vehicle. The Appellant filed a Civil Suit No. 50/2007 before Civil Court against the Respondents. It was decreed with direction to repay the instalments and then to return the vehicle. The appeal filed by the Respondent before the District Court bearing No. 71/2008 came to be dismissed. Therefore, the Appellant filed Consumer Complaint No. 62/2007 before the Forum claiming compensation of Rs. 19,00,000/- ( Rs. Ninteen lakhs only ) from the Respondent for not giving the possession of the vehicle despite of the application and direction of Civil Court and District Court in failure to comply with the order of Civil Court.
The Appellant also filed an application before the Forum for Condonation of delay, which took place in filing the Complaint. Forum after hearing the appellant on the delay condonation application, passed order and declined to condone the delay. The Forum rejected the delay condonation application. The Forum dismissed the complaint. The Forum observed in impugned order that a cause of action for filing complaint arose on 02-08-2007 when the vehicle was seized by the Respondent and the appellant filed Civil Suit and after decision of Civil Suit by Civil Court he filed the complaint for compensation with consequences of compensation on the order of Civil Court. Therefore, the delay that took place cannot be condoned.
The Appellant submitted that the cause of action arose only after the declaration is given by the Civil Court that the seizure of vehicle is illegal and therefore the delay needs to be condoned.
The Civil Court passed the decree on 26-06-2008 in Civil Suit declaring that the seizure of vehicle is illegal and gave direction to the Respondent to infrom the appellant about the amount as per loan account up to July 2008, then give the possession of the vehicle to the appellants, if the appellant fails to deposits the instalments within one month, the Respondent may take steps as per terms and conditions of agreement.
Now it is for the Civil Court to decide in Execution Proceedings, if any, as to whether both the parties have complied that directions given to them. The Forum cannot go into that aspect. Moreover, it is also seen that the appellant already approached to Civil Court. He cannot now approach the Forum for the same cause of action. The cause of action for filling the complaint for possession as well as for compensation arose when the vehicle was seized. We thus find that the as Appellant already approached to the Civil Court, he cannot take the defence, that as time was consumed in Final decision of Civil Suit and despite of declaration, vehicle was not returned to him, he is entitled to condonation of delay. He did not claim compensation in the Civil Suit. Hence he cannot claim compensation by filing complaint before the Forum for the same cause of action. Therefore, the appellant has not made out good ground for condonation of delay, that took place in filing the complaint. The Forum has thus rightly declined the condonation of delay. As well as, we also find no merits in the appeal and it deserves to be dismissed. The Appellant relied on the decision of Hon’ble Supreme Court in the Case of Gunwantbhai Mulchand Shah & Ors. Vs. Anton Elis Farel & Ors, But the said case as relied on is about Specific Performance of the Contract and hence it is not applicable to the present case.
O R D E R
1) The Appeal is dismissed.
2) No Order as to costs.
