National Consumer Disputes Redressal
Anwar Husein Mohmed Chokwala vs State Bank Of India & 2 Ors. on 10 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2281 OF 2015 (Against the Order dated 25/06/2015 in Appeal No. 727/2015 of the State Commission Gujarat) 1. ANWAR HUSEIN MOHMED CHOKWALA RESIDING AT: CHOKWALA STREET, AT & POST DAYADAR-392020 BHARUCH GUJARAT ...........Petitioner(s) Versus 1. STATE BANK OF INDIA & 2 ORS. THE MANAGER, STATE BANK OF INDIA STATION ROAD BRANCH, BHARUCH GUJARAT 2. TATA MOTORS LTD. PASSENGER CAR BUSINESS UNIT, 5TH FLOOR, ONE FORBER, DR.V.B.GANDHI MARG MUMBAI MAHARASHTRA 3. SHRADDHA MOTORS PVT.LTD. NATIONAL HIGHWAY NO.8, OPP. QUEEN ANGEL SCHOOL, VILLAGE-VADALA BHARUCH-392015 GUJARAT ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Anwar M.Cokwala & Mr.Iqbal A. Patel, ,
Advocate For the Respondent : For the Respondent No.1: Ex parte
For the Respondent No.2: Ms. Aishwarya Kaushik, Advocate
For the Respondent No.3: Ex parte
Dated : 10 May 2018 ORDER
This revision petition has been filed by the petitioner Anwar Husein Mohmed Chokwala, against the order dated 25.06.2015 of the State Consumer Disputes Redressal Commission, Gujarat, (in short 'the State Commission') passed in Appeal No.727 of 2015.
2. Brief facts of the case are that the petitioner/complainant booked Nano Car CX-BS 2 Luna Silver in the year 2009 through State Bank of India, which was to finance the vehicle. There was correspondence between the complainant and the dealer that the vehicle would be released to him shortly. However, he found out that booking was cancelled. He then filed a complaint No.102/2011before the District Consumer Disputes Redressal Forum, Bharuch, (in short 'the District Forum') against the respondent Nos.2 & 3, Tata Motors Ltd and Shraddha Motors Pvt. Ltd. It was revealed by the opposite parties that the booking was cancelled on the advice by the State Bank of India, which was to finance the vehicle. However, the District Forum dismissed the complaint vide its order dated 27.04.2012 on the ground that there was non-joinder of the necessary party as the State Bank was not made a party and also on account of the fact that the case involved voluminous evidence, which was not possible in the summary proceedings under the Consumer Protection Act and therefore, the liberty was granted to the appellant to move to civil court. The complainant preferred an appeal before the State Commission bearing No.3538 of 2012 and the same was dismissed vide its order dated 27.02.2015 passed by the State Commission. The complainant then filed another complaint application No.5 of 2015 on 22.05.2015 before the District Forum against all the opposite parties including State Bank of India also, which was dismissed by the District Forum vide its order dated 26.05.2015 on the ground of being barred by res judicata. .
3. The complainant then preferred appeal bearing No.727 of 2015, which was dismissed vide order dated 25.06.2015 of the State Commission.
4. Hence, the present revision petition.
5. Heard the learned counsel for the petitioner as well as learned counsel for respondent No.2 Tata Motors Ltd. The respondent Nos.1 & 3 were proceeded ex-parte vide order dated 06.04.2017 as they did not appear even after service of notice.
6. Learned counsel for the petitioner stated that the original complaint was filed only against respondent Nos.2 & 3 and respondent No.1 was not a party in that case, so there is no question of res judicata as the main complaint now is against respondent No.1, however, respondent Nos.2 and 3 are also to be made party just to save the present complaint from the defect of non-joinder of parties. When the first complaint was filed, in the written statement, Tata Motors Ltd. indicated that the booking was cancelled on the advice of the State Bank of India, therefore, the complainant entered with the correspondence with the State Bank of India to know on what ground the booking was cancelled. However, vide letters dated 20.11.2013 & 08.01.2014 of the State Bank of India, it was informed that they are searching the old record and will reply about the details shortly. No information has been given so far. Therefore, new cause of action has arisen and new complaint has been filed. As the Consumer Protection Act, 1986 is beneficial legislation for better protection of the interests of consumers, therefore, the new complaint should be allowed as this is mainly against State Bank of India and the State bank of India was not a party in the original complaint.
7. On the other hand, learned counsel for the respondent No.2 stated that a second complaint cannot be maintained on the same cause of action. Cause of action remains the same as the petitioner is aggrieved from the cancellation of the booking of his car. It was further pointed out that against respondent Nos.2 & 3 res judicata shall definitely operate as they were the main opposite party in the original complaint, therefore, no case can be instituted against respondent Nos.2 and 3. Hence, the whole case would be barred by res judicata as rightly decided by the District Forum and confirmed by the State Commission. Learned counsel further pointed out against the order dated 27.02.2015 of the State Commission, revision petition No.1571 of 2015 was preferred by the complainant before this Commission, which was also dismissed vide order dated 12.10.2015 of this Commission. Hence the order dated 27.04.2012 of the District Forum has become final and no fresh complaint can be filed involving respondent No.2 and 3 as res judicata shall operate in this regard.
8. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. The original complaint filed against the respondent Nos.2 and 3 was dismissed by the District Forum mainly on two grounds. First being that the State Bank of India was not made a party, which was a necessary party as it had financed the vehicle. The second reason for dismissal of the complaint was that adjudication of the complaint required large amount of evidence, which was not possible in the summary proceedings under the consumer forum and therefore, the liberty was granted to the complainant to move to the appropriate court i.e. the civil court. As the appeal filed against this order was also dismissed, the complainant preferred a revision petition before this Commission and the same was also dismissed vide order dated 12.10.2015. Accordingly, the order dated 27.04.2012 of the District Forum had attained finality and the complainant and respondent Nos.2 and 3 are bound by this decision. It is true that respondent No.1, State Bank of India was not a party in the original complaint case and the order dated 27.04.2015 of the District Forum and order dated 27.02.2015 of the State Commission are not binding on the State Bank of India. However, as in the present complaint case, the opposite parties of the original complaint case have been made respondent Nos.2 and 3 and the fresh complaint is not maintainable against these respondents under the Consumer Protection Act 1986, as the complaint could have been filed only in the civil court as per liberty granted by the District Forum, so a complaint against respondent No.1/State Bank of India involving respondent Nos.2 and 3 as other opposite parties, to avoid the defect of non-joinder of necessary parties would also not be maintainable before the District Forum for the same cause of action. The only remedy available to the complainant may be to file case before the Civil court as permitted by the District Forum.
9. Moreover, the booking amount of Rs.12,000/- has already been refunded by respondent Nos.2 & 3 to respondent No.1 and the loan amount of the complainant with respondent No.1 has also been closed after the complainant paid interest on the amount of Rs.12,000/-. It is also seen that the present complaint has been filed on 22.05.2015 and the cause of action arose in 2011. Hence the present complaint cannot be sustained as it is highly barred by limitation.
10. On the basis of the above examination, I find that though the res judicata is not applicable to respondent No.1, however, as the same is applicable on respondent Nos.2 and respondent No.3 and complaint has been filed against all the three respondents for the same cause of action, the complaint is not maintainable with the consumer forum apart from being highly barred by limitation. In the light of the order dated 27.04.2012 of the District Forum in the original complaint case, the complainant is at liberty to file case against all respondents before the civil court.
11. On the basis of the above discussion, I do not find any ground to interfere with the order dated 25.06.2015 passed by the State Commission and hence the revision petitioner No.2281 of 2015 is dismissed.
...................... PREM NARAIN PRESIDING MEMBER