Jitendra Bhalla, Proprietor, M/s Bhalla Automobiles In front of Sent Fidelis School Ramghat Road Aligarh.

Applicant

V/s

Virendra Pal Singh S/o Chhatar Singh R/o Kathwari Bhimti, District Aligarh-202001 (UP).

Opposite party

Coram:

Present:

1. Shri Hasnain Qureshi, President
2. Alok Upadhyay, Member
3. Smt. Purnima Singh Rajpoot, Member

Prounounced by Shri Hasnain Qureshi,  President

Judgment

This Review Petition has arisen out of order dated 01.04.2024 passed by this District Commission in complaint case no.58/2021 titled as Virendra Pal Singh S/p Chhatar Singh R/o Kathwari Bhimti  District-Aligarh (UP) as complainant V/s 1. Jitendra Bharla proprietor M/s Bharla Automobiles in front of Saint. Fideles School Ramghat Road Aligarh-2. SES Swaraj Division Mahendra and Mahendra Company Mahauli Chandigarh as opposite parties.

1. The complainant in the complaint case had sought the reliefs for issuing the direction to the opposite parties to repair the Tractor or to replace the tractor and also to pay Rs.8 Lac for the loss caused on account of ruining the crops, Rs.5 Lac for mental agony, Rs.10,000/- for conveyance to visit office of the op and Rs.10,000/-as cost of litigation. The complainant had stated in the complaint the facts as under:-
2. The complainant had purchased a tractor no.UP81-BM-5277 from the Op for Rs.5,85,000/-. In the month of August 2016 the tractor had become defective. The tractor was brought to the agency of Op and asked to remove the defects or to replace the tractor. Op assured and kept the tractor at his agency but he avoided the service whereby the complainant suffered a loss of the amount Rs.8 Lac on account of damages of the crops. The tractor was not returned after removing the defects.
3. The Op has stated in his WS that he is the authorized dealer of Op no.2 i.e. SES Swaraj Division Mahindra and Mahindra Co. Mahauli, Chandigarh. Complainant had purchased a tractor from his agency on 31.08.2016. The tractor was financed by Mahindra and Mahindra financial services Ltd under the hire purchase scheme. Complainant/complainant could not make the payment of installments and he kept the tractor at the garage of financial company Aligarh for sale.
4. That the  District Commission passed the judgment and order dated 01.04.2024 whereby the Op was directed either to hand over the tractor after removing the defects or to replace the tractor by a new Tractor and Op was also directed to pay amount Rs.8 Lac and damages Rs.100000/- as compensation of Rs.10,000/- and litigation expenses.
5. It was observed in the impugned judgment that the complainant had purchased the Tractor on 31.08.2016 from the Op under hire purchase scheme and on failure to pay the installments of the loan the Tractor was retained at the garage by the Op for the purpose of the sale but the guarantor of the complainant requested to take Tractor   with the assurance of making clear all the dues of the loan and submitted a cheque for Rs.174415/-on 30.07.2017 as security to clear the loan and he has also submitted a cheque on 08.07.2017 for Rs.57900/-against the installment of the loan but the cheques were dishonored by the Bank and proceedings under the NI Act are pending.
6. It was further observed in the impugned judgment and order that the Tractor  was standing at the agency of the Op and the payment of loan amount is the liability of the complainant against the financer who is entitled to recover the loan as per law and the Tractor cannot be seized without following the procedure of law :-
7. It was also observed while passing impugned judgment that there is nothing to show that any procedure was followed by the Ops i.e. Op in the present Op and op No.2 SES Swaraj Division Mahindra and Mahindra Co. in the complaint case for recovery of the loan amount against the complainant and in absence thereof, and there can be no reason to bring the Tractor at the agency of Op by the complainant except for removing the defect.
8. It was concluded in the impugned judgment that the complainant had taken the Tractor at the agency of Op for removing the defects and the Op is liable to hand over the Tractor to the complainant after the removing the defects or on failure to replace the Tractor by a new Tractor. District Commission have also been pleased to direct the Op to pay damages and compensation with the litigation expenses.  
9. Opposite party (complainant in the complaint case) has submitted written arguments wherein it is stated that the review petition is barred by time and no medical certificate of illness has been filed. The paper issued by Mahendra and Mahendra Finance Company is forced. The tractor was brought of the agency on account of defective chasis of the Tractor. The tractor was not taken into possession by the finance company. The review petition is liable to be dismissed.   
10. We have perused the impugned Judgment and order dated 01.04.2024 and heard the parties. We have undergone through the grounds of challenge of the impugned judgment and order under review. We have also undergone through the written arguments submitted by the Op. We have considered the material on record and we are of the  opinion that there is error apparent on the face of the impugned judgment and order as discussed below :-
11. At the outset, it is made clear that the written arguments have no substance on giving serious consideration in view of  grounds of review petition to the written arguments. 
12.  The Act-2019 provides the remedy of review U/s-40 of the Act against the order passed by the District Commission, if there is an error apparent on the face of the record, either on the motion of the commission or an application made by any of the parties within 30 days of such order.
13. Hon’ble Supreme Court in the Case-State of West Bengal V/s Kamal Sen Gupta-(2008)8 SCC-612 has defined the term mistake or error apparent as an error which is evident perse from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position.”
14. It is evident from the allegations made in the complaint that the tractor was brought by the complainant to the agency of the Op for removing the technical defect in the month of march-2017 which was not returned since 10.03.2017. The complaint was verified on 28.09.2018 meaning thereby the Tractor remained standing at the agency of Op from the march-2017 till the date 28.09.2018.
15. The Op in the present review petition who was the opposite party no.1 in the complaint case has stated in  WS that the complainant Virendra Pal Singh in the present petition who was complainant in the complaint case that the complainant had purchased Tractor  from the Op on 31.08.2016 under hire purchase scheme financed by Mahindra and Mahindra Financial Services Ltd. Complainant had kept the Tractor at the garage of the finance Co. due to default in payment of installments of loan amount and asked the Op to pay the installments Rs. 57900/- of the loan amount to the finance Co. and Op having confidence in the complainant  the Op paid the amount Rs.57900/- to finance Co. through Bank transaction. Complainant had given a cheque no. 525741 dated 08.07.2017 for Rs.57900/-was in favour of the complainant’s Firm.
16. The complainant had borrowed the amount Rs.147812/-from the Op to be paid to the financial company as margin money for obtaining loan amount to purchase the Tractor with the assurance of repayment of the amount and the tractor was purchased.
17. On 30.08.2017 Op asked the complainant to take the Tractor and the complainant sought 20-25 days period to clear the dues and gave a check no.525743 dated 30.08.2017for Rs.174415/-in favour of Op no.2 and assure the Op that both the checks would be encashed after 20-25 day period.
18.  The Op presented both the cheques for Rs.57900/-and Rs.147812/- on 21.09.2017 in its account maintained in State Bank of India Civil lines Branch Aligarh which were returned unpaid on account of insufficiency fund in the account.
19. The Op has filed a case U/s-138 NI Act against the complainant and the amount Rs.57,900/-+ 1,47,812/- is due against the complainant.
20. It is reveals from the record the Tractor was not in possession of the Op on the date of verification of the complaint, i.e. on 28.09.2018 and thereafter on the day of admission of the complaint by the District Commission on 25.06.2021.
21. It is relevant to mention that the financial company is involved in the dispute. The tractor was purchased Under hire purchase scheme financed by Mahindra and Mahindra financial Services and the complainant committed default in payment of installments of the loan amount and the Op paid the amount to the complainant to pay the installments of the loan amount. In default of  payment of loan amount the Tractor was kept by the complainant at the garage of financial co. Complainant concealed and suppressed the material facts by relating to financial co. and the financial company was not impleaded in the case with the object of suppression of the material facts relating to the financial Company.
22. The Tractor was Hypothecated by the complainant in favour of financial company and the financial company took over the possession of the tractor on 17.09.2018  and notice was given to SHO Madrak and SSP Aligarh. The Complainant was given notice dated 29.11.2018 by the financial company to pay the loan amount and on failure to sell the vehicle and the vehicle was released as per authorization letter dated 31.12.2018. These facts clearly indicate that the tractor was not in possession of the complainant on the date of verification of the complaint on 28.09.2018 and on the date of admission of the complaint by the District Commission on 26.05.2021. The complainant has filed the complaint with wrong allegations and the finding is based on wrong allegations and is liable to be set aside.
23. That the material facts relating to re-possession the Tractor by the financial company could not be brought before the District Commission and the finding given by the Commission without taking into consideration the facts relating to re-possession of the Tractor by the Financial Company in the absence of financial company is apparently erroneous and it is an error apparent on the face of the record.
24. That  the proceeding U/s-138 NI Act were not taken into consideration in giving the finding and if it was taken into consideration while giving the finding the conclusion would have been other wise and it is also apparent error in arriving at conclusion for  passing the impugned judgment.
25. That there is an error apparent on the face of the record in giving finding by the District Commission that the Tractor was standing at the agency of Op  for removing the defect and  Op was liable to hand over the Tractor to the complainant after removing the defect.
26.  The impugned judgment is based on incorrect conclusion arrived at the finding based on wrong allegations made by the complainant and is revealed apparently from the material on record which is manifest error and District Commission is vested of the jurisdiction in exercising power U/s-40 of the Act to rectify the error by allowing the review petition. 
27. Under the facts and circumstances stated above, the conclusion is based on perusal of bare allegations of both the parties and there is no detailed examination of the material on record and therefore the finding given in favour of complainant is prima facie error apparent on the face of the record.  There is error apparent on the face of the record in passing the order dated 01.04.2024  which may be cured by taking into consideration the material of record and papers of repossession of the vehicle by the financial company Mahindra and Mahindra Financial Services.
28. In view of discussion made above, the review  petition deserves to be allowed and the impugned judgment and order dated 01.04.2024 is liable to be set aside and consequently the complaint is liable to be dismissed.

Order

The review petition is hereby allowed and impugned Judgment and order dated 01.04.2024 are hereby set aside. Consequently, complaint is hereby dismissed.