National Consumer Disputes Redressal
Maruti Udyog Limited vs K.V. Krishnam Raju on 8 October, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1767 OF 2006 (From the Order dated 10.8.2005 in F.A. No.585/2003 of Andhra Pradesh State Consumer Disputes Redressal Commission) Maruti Udyog Limited 11th Floor, Jeevan Prakash Building 25, Kasturba Gandhi Marg New Delhi-110 001 Petitioner VERSUS 1. K.V. Krishnam Raju Through M/s. N.C.C. Finance Limited 23, Nagarjuna Hills, Hyderabad (A.P.). 2. Branch Manager Canara Bank Industrial Finance Branch 5-10-194, II Floor, Kalanjali Bhavan, Chakrapuri Estate, Opp. Police Control Room, Saifabad, Hyderabad (A.P.). 3. Mahalaxmi Motors Limited 4, Motilal Nehru Nagar, Begumpet, Hyderabad, (A.P.) 4. R.K.S. Motors Pvt. Limited, Saboo Towers, 6-3-905 Rajbhavan Road, Hyderabad (A.P.) Respondents BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr. K.P.S. Rao and Ms. Subhashini Advocate For the Respondent No.1 : Mr. B. Suyodhan, Advocate For the Respondent No.2 : Mr. Pankaj Gupta, Advocate. For the Respondent No.3 & 4 : N E M O PRONOUNCED ON : 08 .10.2010 O R D E R
ASHOK BHAN J., PRESIDENT Maruti Udyog Ltd., Opposite Party No.1 before the District Forum has filed the present Revision Petition against the order dated 10.8.2005 passed by the State Consumer Disputes Redressal Commission (for short the State Commission) in F.A. No.585/2003 wherein the State Commission allowed the Appeal and set aside the order dated 2.5.2003 passed by the District Forum-I, Hyderabad in C.D. No.937/2000 and directed the Petitioner herein to refund the sum of Rs.2,91,147/- to the Complainant-Respondent No.1 along with interest @ 9% per annum w.e.f. 5.12.1996.
Facts:
Complainant Respondent No.1 booked a Maruti Zen Car in the month of January 1996 with Mahalaxmi Moors Ltd. Respondent No.3 herein (Opposite Party No.3) by paying a sum of Rs.25,000/- . Subsequently, Respondent No.3 issued allotment number being No.1000-Z-00555 to the Complainant. On being asked by Respondent No.3, Complainant paid an amount of Rs.2,91,147/- by D.D. No.484426 dated 30.11.96 drawn on Canara Bank, Hyderabad in favour of ANZ Grindlays Bank- A/c Maruti Udyog Ltd. i.e. the Petitioner herein. Alleging that in spite of receipt of the total price of the Maruti Zen Car and making several representations and issuance of legal notice, the Opposite Parties failed to either deliver the Car or refund the amount, Complainant filed a complaint which was numbered as CD 16/98 before the District Forum seeking a direction to the Opposite Parties either to deliver the Car or to refund Rs.3,16,147/- (Rs.2,91,147 + Rs.25,000) with interest @ 36% per annum together with compensation of Rs.25,000/- for the mental agony undergone by him as well as Rs.1,000/- towards cost of litigation.
Mahalaxmi Motors. Ltd.- Respondent No.3 filed its written statement taking the stand that the complainant was not a consumer within the meaning of the Consumer Protection Act. That after the payment of the amount to the Maruti Udyog Ltd. its dealership was cancllled and the dealership was transferred in the name of M/s. R.K.S. Motors Pvt. Ltd., Respondent No.4 herein. That after the transfer of the dealership to Respondent No.4, the complaint against it was not maintainable.
M/s. R.K.S. Motors Pvt. Ltd., Respondent No.4 filed its counter stating that since the Complainant had paid the amount to Mahalaxmi Motors Ltd., it was not in any way liable either to deliver the Car or to make the payment to the Complainant.
Maruti Udyog Ltd. filed its written statement taking the stand that the Consumer Fora did not have the jurisdiction to entertain the complaint. That it had not received any amount towards the price of the Car from the Complainant except the initial booking amount of Rs.25,000/- and prayed that the complaint be dismissed.
During the course of arguments in Complaint No. CD.
16/98 counsel for the complaint represented that the Complainant had received Rs.2,91,147/- from the Bank as the Demand Draft given by him was not encashed by Mahalaxmi Motors Ltd. and remit the amount to the Maruti Udyog Ltd. In view of the fact that the Complainant had received Rs.2,91,147/-, he restricted his claim for the refund of Rs.25,000/- only with interest. In view of the statement made by the Complainant, the District Forum partly allowed the complaint and directed the Maruti Udyog Ltd, Petitioner herein, to refund the sum of Rs.25,000/- to the Complainant with interest @ 12% per annum w.e.f. 30.11.96 till realization together with costs of Rs.500/- within a month from the date of passing of the order. Complaint against Mahalaxmi Motors Ltd., the old dealer and M/s. R.K.S. Motors Pvt. Ltd., the new dealer was dismissed without any order as to costs. The relevant portion of the order dated 30.11.99 passed by the District Forum in CD No.16/98 reads as under:
During the course of arguments the complainant has represented that he received Rs.2,91,147/- from the Bank as the D.D. could not be encashed by the opposite party no.1 and remitted to opposite party no.3. In view of the said payment of Rs.2,91,147/- , the complainant now restrict his claim only to the refund of Rs.25,000/- with interest from the opposite party no.1 for non-payment of the cost of the vehicle the opposite party no.3 ought to have refunded the booking advance of Rs.25,000/- to the complainant. Instead, it has retained the same with in only till this date. Therefore the opposite party no.3 is liable to pay interest @ 12% per annum from the date of deposit, i.e. 30.11.1996 till the date of realisation. We are not inclined to award any compensation separately. However, we award Rs.500/- towards cost of the complaint.
In the result this complaint is partly allowed directing the opposite party no.3 to refund Rs.25,000/- to the complainant with interest @ 12% per annum from 30.11.1996 till the date of realisation together with Rs.500/-
towards costs of the complaint within a month from today. The complaint against opposite parties no.1 & 2 is dismissed without costs.
After the lapse of 1-1/2 years of the passing of the order by the District Forum in CD No.16/98, Complainant filed the second complaint being CD No.937/2000 alleging therein that he had received a letter from the Canara Bank dated 6.1.2000 stating that the Demand Draft given by the Complainant had in fact been paid to the party concerned and double payment had been made. As such, Complainant was requested to pay Rs.2,91,147/-, i.e. the amount of the Demand Draft, with interest. Later on, Canara Bank recovered the above said amount from the account of the Complainant and informed the Complainant about the debit entry made in his account.
Making this as the basis, Complainant filed the complaint alleging:
It is further submitted that the acts of the Opposite party No.1 intentionally with a view to harass the customers non-delivering the above said vehicle. The petitioner having paid the total value of the Maruti Zen vehicle and suffering due to the negligence of the opposite party No.1 and put to a lot of mental agony, torture, loss and sufferance which is absolutely deficiency of service of the OP No.1 It is further submitted that the act of the opposite party No.2 is very negligent and basing on the information given by the opposite party No2 the petitioner, represented before this Honble Court and this Honble Court was pleased to partly allowed the CD No.16 of 1998 dated 30.8.1998. As such the petitioner is put to a lot of mental agony, torture and loss because of the deficiency of service of opposite party no.2.
In CD. No.937/2000, the following relief was sought:
In view of the above said facts and circumstances, the petitioner herein prays that this Honble Court may be pleased to direct the opposite parties No.1 and 2:
a) To pay an amount of Rs.2,91,147/- along with interest @ 36% p.a. to the petitioner.
b) To pay an amount of Rs.25,000/- towards the mental agony, harassment caused by the opposite parties No.1,2.
c) To pay an amount of Rs.1,000/- towards the costs of the petition.
On being served, PetitionerMaruti Udyog Ltd. entered appearance and filed its written statement taking the stand that the second complaint based on the same cause of action was barred by the principles analogous to res judicata and the provisions of Order II, Rule 2 sub Rule 2 of the Code of Civil Procedure Code. That Complainant had filed CD No.16/98 claiming Rs.3,16,147/- which the sum of Rs.2,91,147/- allegedly deposited by him with the Opposite Party No.3. That the relief claimed in C.D No.16/98 and the CD No.937/2000 being the same, the second complaint - CD No.937/2000 was not maintainable. On merits the stand taken by the Petitioner herein was that on receipt of the payment, the Petitioner on 27.11.1996 had delivered the vehicle to Mahalaxmi Motors vide invoice No.098971 bearing Chasis No.197436 against the payment received. That the Petitioner did not earmark the vehicles in the name of the individual customer.
District Forum dismissed the complaint holding that cause of action in CD No.16/98 and CD No.937/2000 being the same, the second complaint was not maintainable. That Complainant in the earlier complaint had admitted receipt of Rs.2,91,147/- and restricted his claim to the sum of Rs.25,000/- which relief had been granted to the Complainant. That the second complaint based on the same cause of action involving the same issue was barred by the principles analogous to res judicata. Another finding recorded by the District Forum was that the dispute raised by the Complainant in the second complaint was not a consumer dispute.
Dissatisfied with the Order passed by the District Forum, Complainant filed an Appeal before the State Commission being F.A. No.585 of 2003 which has been disposed of by the impugned Order. The State Commission set aside the Order of the District Forum, allowed the appeal and directed the Petitioner to refund Rs.2,91,147/- together with interest @ 9% p.a. from 5.12.96 to the Complainant till realisation and Opposite Party No.2 Bank to pay compensation of Rs.10,000/- and costs of Rs.1,000/- to the complainant.
Being aggrieved, by the Order passed by the State Commission, the Petitioner-Opposite Party No.1 has filed the present Revision Petition.
Learned counsel appearing for the Petitioner contends that the point in issue in the earlier complaint (CD No.16/98) and the subsequent complaint (CD No.397/2000) being the same, the second complaint was not maintainable. That the second complaint based on the same cause of action would be barred by the principles analogous to res judicata as well as provisions of Order II, Rule 2 sub Rule 2 of the Code of Civil Procedure Code which provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action and where the plaintiff omits to sue in respect of or intentionally relinquished any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. In respect of this submission counsel for the Petitioner relied upon the judgment of the supreme Court in the case of Kunjan Nair Sivaraman Nair vs. Narayanan Nair & Ors. 2004(3) SCC 277.
On the other hand, learned counsel for the Complainant submitted that the cause of action for filing the first complaint i.e. CD No.16/98 and second complaint being CD No.937/2000 is different and therefore, the second complaint was maintainable. He did not dispute the provisions that if the cause of action in both the complaints is the same, then the second complaint for the same cause of action would not be maintainable. He also placed on record two judgments of the Supreme Court in (i) Deva Ram & Anr. vs. Ishwar Chand & Anr.
(1995) 6 SCC 733 and (ii) Dalip Singh vs. Mehar Singh Rathee & Ors. (2004) 7 SCC 650.
We have gone through the earlier complaint was as well as the second complaint filed by the complainant. On perusal of the same, we find that the relief claimed in the earlier complaint CD No.16/98 was either to deliver the Maruti Zen Car or pay an amount of Rs.3,16,147/- which included the sum of Rs.2,91,147/-. The relief claimed in the second complaint CD No.937/2000 is also the same i.e. to direct the Opposite Parties to pay the sum of Rs.2,91,147/- along with interest @ 36% and Rs.25,000/- towards mental agony (Rs.3,16,147).
Section 11 of the Civil Procedure Code provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. Section 11 contains the rule of conclusiveness of the judgement which is based on the maxim of Roman Jurisprudence Interest reipublicae ut sit finis litium (it concerns the State that there be an end to law suits) and partly on the maxim Nemo debet bis vexari pro una at eadem causa (no man should be vexed twice over for the same cause).
Section 11 operates as a bar of the trial of the suit or issue, if the matter in the suit was directly and substantially in issue and finally decided in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. It is based on the public policy that a litigant should not be vexed twice over on the same cause of action and to put an end to the law suit. The doctrine of res judicata differs from the principle underlying Order II Rule 2 in that the former places emphasis on the plaintiffs duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiff shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit.
Sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted. Although the doctrine of res judicata differs from the principle underlying Order II Rule 2 but the public policy and the principle underlying both of them is the same that the defendant should not be vexed twice over for the same cause of action and to put an end to the litigation. Although the Code of Civil Procedure is not applicable to the proceedings under the Consumer Protection Act but the principles analogous to the to res judicata and the provisions of Order II, Rule 2 sub Rule 2 of the Code of Civil Procedure Code can certainly be applied as they are based on public policy. The issue involved in the subsequent complaint was directly and substantially in issue in the earlier complaint. In the earlier complaint CD 16/98 complainant had claimed a sum of Rs.2,,91,147/- from the Opposite Parties which was later on given up and the Complainant restricted his claim to the sum of Rs.25,000/- only. Based on the statement made by the Complainant, the District Forum allowed the complaint CD No.16/98 restricting the relief to Rs.25,000/- only. The second complaint CD No.397/2000 filed by the Complainant is also based on the same cause of action claiming a sum of Rs.2,91,147/-. The second complaint would be barred by the principles analogous to res judicata and the provisions of Order II, Rule 2 sub Rule 2 of the Code of Civil Procedure Code. The Complainant having relinquished his claim in the sum of Rs.2,91,147/- in the earlier complaint, would be debarred from claiming the same relief in the second complaint.
The Supreme Court has repeatedly held that if a plaintiff omits to sue in respect of or intentionally relinquished any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. There is no need to refer to all the judgements. We may quote the following observation of the Supreme Court in the case of Kunjan Nair Sivaraman Nair vs. Narayanan Nair & Ors. - 2004 (3) SCC 277:
15. The doctrine of res judicata differs from the principle underlying Order 2 Rule 2 in that the former places emphasis on the plaintiffs duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order 2 concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for such relief he shall not afterwards be permitted to sue for relief so omitted.
For the reasons recorded above, we allow this Revision Petition, set aside the order of the State Commission and restore that of the District Forum. The second complaint filed by the Complainant is held to be not maintainable and is accordingly ordered to be dismissed. However, this order will not debar the Respondent for seeking his remedy in any other forum, if permissible in accordance with law.
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(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER