State Consumer Disputes Redressal Commission
Gouri Devi Paswan vs Arun Trade Combines & Anr. on 26 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/459
Instituted on : 02.06.2018
Gauri Devi Paswan, Aged about 55 years,
W/o Late Chandeshwar Paswan,
Agriculturist, Village - Patewa, Post Office Patewa,
Tahsil & District Mahasamund (C.G.)
Address : Near Navin Madhyamik School,
Shukrawari Bazar Road, Gudhiyari,
Raipur (C.G.) .... Appellant (Complainant)
Vs.
01. Arun Trade Combines,
National Highway 43, Dhamtari Road,
Village : Devpuri,
Raipur (C.G.) .... Respondent No.1 (O.P. No.1)
02. Mahidra & Mahindra Financial Services Ltd.,
Second Floor, Sadhna House 570, P.B. Marg,
Worli, Mumbai 400 018 ... Respondent No.2 (O.P. No.2)
03. Mahindra & Mahindra Financial Services,
S.F. 02, Second Floor, Maruti Heights,
Aamanaka, Near Railway Crossing,
G.E. Road, Sky Automobiles,
Raipur (C.G.) ... Respondent No.3 (O.P. No.3)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Ambrish Dutt Agrawal, Advocate along with appellant (complainant).
None for the respondent No.1 (O.P. No.1).
Shri Rakesh Puri, Advocate for the respondent No2 & 3 (O.P. No.2 & 3)
ORDER
DATED : 26/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 05.04.2018, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth // 2 // "District Forum") in Complaint Case No.247/2014. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated the facts of the complaint of the complainant are that, on 25.02.2009, the complainant had purchased one Mahindra 295 D.I. Turbo 39 H.P. Tractor bearing registration No. C.G. 04-D.B. 8691 from the O.P. No.1 with the financial assistance of the O.P. No.2 & 3. The contract No. is 939937. The complainant had also purchased a tractor trolley & 2 wheel hydraulic bearing registration No.C.G.04-D.B.8690 with the financial assistance of the O.P. No.2 &
3. The contract No. is 939974. The loan amount was to be paid in 35 installments. The tractor trolley was using by the complainant for agriculture and other purposes. The complainant was regularly depositing the installment of the trolley. The total cost of the above trolley was Rs.1,25,000/-, out of which a sum of Rs.79,000/- was deposited in cash and Rs.50,000/- was got financed. The interest amount was Rs.17,280/-. It was agreed between the parties that a sum of Rs.1,920/- would be paid towards interest in respect loan obtained for trolley. Till 05.08.2011, the complainant had regularly paid 30 installments of the loan and when only 5 installments were payable, in the month of December, 2011, the OPs have repossessed the tractor trolley and parked the tractor trolley at Mahadevghat Road and told the complainant to make payment and take the tractor trolley. When the O.P. No.1 provided the trolley 2 wheel hydraulic to the complainant, then without information of the complainant and without obtaining permission of the complainant two tyres having size 1000x20 which were old tyres were fitted in the vehicle and the new vehicle was sold and obtained the entire amount. Thus, the OPs have // 3 // committed unfair trade practice and deficiency in service. On 28.04.2014, the complainant obtained information from the R.T.O. Raipur regarding the above trolley, then it came to know that at present the above vehicle is recorded in the name of the complainant. The complainant is regularly depositing the installments in respect of the loan obtained for the tractor bearing registration No. C.G.04-B-8691. The value of the above tractor is Rs.4,86,696, out of which a sum of Rs.2,09,729/- was paid and for remaining amount, the financial assistance was obtained by the complainant. It was agreed that the amount of installment would be Rs.11,500/-. In the meantime the husband of the complainant, Chandreshwar Paswan fell ill and he was regularly taking treatment and he died on 04.03.2012. Therefore, there was irregularity in making payment of installment. The OPs repossessed the tractor bearing registration No.C.G.04-D.B.8691 and parked the same at Mahadevghat Road and told the complainant to pay the entire amount and take the tractor trolley. The complainant arranged for the amount of installments and she contacted to the OPs several time and sought information from the officer and agent, but the effort of the complainant was failed. The OPs were not receiving the outstanding amount and also did not agree to return back the tractor trolley. The OPs were only giving assurance that the Manager, Legal Department will talk with the higher authority and solve the problem, and the officers were passing the time. In the month of December, 2012 the complainant was informed that the tractor and trolley of the complainant was already sold, and the complainant will not receive any amount. The complainant had deposited 3/4th installments of the tractor trolley, even then the OPs reposed the tractor // 4 // trolley and committed unfair trade practice and deficiency in service. On 28.02.2014 the complainant enquired in the R.T.O. Raipur then it has been informed that the tractor bearing registration NO.C.G.04-DB- is at present recorded in the name of the complainant. The OPs without giving any notice, without giving any information and without obtaining permission of the complainant sold the tractor - trolley and have not given any amount to th complainant. Four-Five Installments of the trolley of Rs.5,760/- was payable and the ¾ installments of the tractor was paid, even then the OPs have sold the tractor trolley due to which the complainant suffered mental agony. Hence, the complainant filed instant complaint before the District Forum, and prayed for granting reliefs, as prayed by the complainant in relief clause of the complaint.
3. In the order sheet dated 08.07.2014, the District Forum has observed the envelope sent to the O.P. was returned back in which it is endorsed that "Refused to take the envelope", therefore, the O.P. No.1 was proceeded ex-parte.
4. The O.P. No.2 & O.P. No.3 have filed their written statement and averred that an agreement dated 04.03.2009. According to condition no. 26 of the loan agreement, if any dispute arises between the parties, then there is provision to settle the same through arbitration. The instant complaint is barred by the provisions of Arbitration and Conciliation Act, therefore, the same is not maintainable under provisions of the Consumer Protection Act, 1986. The complaint is prima facie liable to be dismissed on the above ground. The O.P. No.2 and O.P. No.3 have provided the vehicle in question to the complainant // 5 // under Loan Agreement and due to non-payment of the installments, the O.P. No.2 & 3 have taken action according to the conditions contained in the loan agreement. Elaborate evidence is required in the matter and the same cannot be decided in summary proceedings by the Consumer Fora . The instant complaint is liable to be dismissed. The complaint is not consumer of the O.P. No.2 and O.P. No.3. The complaint is barred by jurisdiction. The complaint is liable to be dismissed. The complainant was required to pay the loan amount without any default and in case of delay in making payment of the installments, the complainant was required to pay extra amount to the O.P. No.2 & 3. The above facts have been mentioned in the loan agreement executed between the complainant and the O.P.No.2 & 3. Both the parties are binding by the above conditions. The complainant never paid the installment according to the loan agreement executed between the complainant and the O.P. No.2 & 3. Only five installments amounting to Rs.5,760/- was not outstanding whereas the complainant was continuously making default in making payment of installments and on complainant, the amount of installment Rs.9,600/- and extra charges for delay in making payment of the installment, was outstanding. The O.P. No.2 & & 3 again and again demanded the same to the complainant but the complainant did not pay the same. The complainant herself provided the vehicle in question to the O.P. No.2 & 3 with an intention that she will pay the outstanding amount and will take the vehicle back. The complainant was required to pay the loan amount in 35 installments without any default i.e. first installment of Rs.12,500/- and the remaining 34 installments of Rs.11,500/- and in case of making delayed payment, she was required to pay the extra charges.
// 6 // The complainant had continuously delayed in the making payment of the installments and the O.P. No.2 & 3 again and again asked the complainant to pay the installments, but she expressed her inability and provided the vehicle to the O.P. No.2 & 3 with an intention that she will pay the outstanding amount and will take back the vehicle. After providing the possession of the vehicle by the complainant, the O.P. No.2 & 3 issued notice to the complainant and informed to take back the vehicle, but despite of receiving the notices, the complainant did not show her interest to pay the amount. The employees of the O.P. No.2 & 3 again and again contacted to the complainant and asked the complainant to take back the vehicle, but the complainant ignored all the notices and request, and did not show her interest to take back the vehicle, then the O.P. No.2 & O.P. No.3 according to the conditions of the Loan Agreement sold the vehicle and gave information regarding the same to the complainant. No cause of action was accrued against the O.P. No.2 & 3. The District Forum, Raipur has no territorial jurisdiction to hear the instant complaint. The complainant appeared in the office of O.P. No.2 and 3 and requested to provide financial assistance to her for purchasing one Mahindra Tractor 295 DI and Trolley. The O.P. No.2 & 3 accepted the request of the complainant and provided the financial assistance to the complainant according to which the total value of the tractor was Rs.4,86,696/- out of which a sum of Rs.1,86,696/- was deposited by the complainant towards margin money and for remaining amount of Rs.3,00,000/- the complainant obtaining financial assistance of the O.P. No.2 & 3. On amount of Rs.3,00,000/- the financial charge of Rs.1,03,500/-, thus the complainant was required to pay total amount of Rs.4,03,500/- in 35 // 7 // installments i.e. first installment of Rs.12,500/- and remaining 34 installments of Rs.11,500/-. The value of the trolley purchased by the complainant was Rs.1,25,000/-, out of which the complainant had paid a sum of Rs.75,000/- towards margin money and for remaining amount of Rs.50,000/-, she obtained financial assistance from the O.P. No.2 & 3. On the above financial assistance, the financial charge of Rs.17,200/- was payable. Thus the complainant was required to pay total amount of Rs.67,200/- in 35 installments i.e. first installment of Rs.2,000/- and remaining 34 installments of Rs.19,20/- without making any default. In case of delay in making payment, 3% extra financial charge is payable by the complainant to the O.P. No.2 & 3 separately. In case of non-payment of the installments, the O.P. No.2 & 3 have right to repossess the financed vehicle. The complainant had not paid the installments within prescribed period according to the conditions of the agreement, therefore, for this purpose, the O.P. No.2 & 3 have several time contacted to the complainant and also informed to the complainant through the telephone for making payment of the amount, but the complainant did not make payment of the amount and always avoided to pay the amount and violated the conditions of the agreement. The complainant herself expressed her inability to pay the installments of the loan and gave possession of the vehicle in question to the O.P. No.2 & 3 and she assured that she will pay the outstanding amount and will take back the vehicle. Thereafter on 21.11.2011, the O.P. No.2 & 3 vide letter through registered post sent intimation to the complainant and her guarantor to the effect that within 7 days of receipt of the above notice, take back the vehicle in question, otherwise it will be presumed that you are not // 8 // interested to take back the vehicle and as per the conditions of the agreement, the O.P. No.2 & 3 will constrain to take action. Even thereafter, the complainant did not make payment of the outstanding amount and also did not show any interest to take back the vehicle in question. Then the O.P. No.2 & 3 as per the conditions of the agreement sold the vehicle to other person and adjusted the sale consideration in the loan account of the complainant. Whatever action taken by the O.P. No.2 & 3 is according to the conditions of the agreement executed between the complainant and the O.P. No.2 and 3, therefore, the complainant is not consumer of the O.P. No.2 and 3. The information regarding sale of the vehicle in question was given to the complainant and the sale consideration was adjusted by the O.P. No.2 & 3 in the account of the complainant and the complainant is having information regarding the same. After adjusting the sale consideration in the loan account of the complainant, the O.P. No.2 and 3 have to recover some amount from the complainant and the O.P. No.2 & 3 have given intimation regarding the same to the complainant, but the complainant did not show her interest to pay the amount. Then, as per conditions of the Loan agreement, the O.P. No.2 & 3 have filed arbitration case before the Arbitrator, which was registered as Case No.969/2012. The Arbitrator issued notice to the complainant to appear before him, but the complainant ignored the notices and did not participate in the arbitration proceedings. Then on 30.04.2013, passed award against the complainant and the complainant is having knowledge regarding the award passed by the Arbitrator. The complainant to save from payment of loan amount and after though has filed the instant complaint. The complainant is // 9 // not consumer of the O.P. No.2 & 3 and the O.P. No.2 & 3 did not commit any deficiency in service. The complainant is liable to be dismissed with cost.
5. The complainant has filed documents. Documents are Delivery Challan dated 20.02.2009 issued by Arun Trade Combines, Raipur, Finance Schedue dated 25.02.2009 issued by Mahindra Finance, Statement of Account dated 03.12.2011 regarding contract No.939974, Statement of Account dated 03.12.2011 in respect of Contract No.939937, Death Certificate of Chandeshwar Prasad, Statement of Account dated 22.01.2016, death report of Chandeshwar Prasad.
6. The O.P. No.2 & 3 have filed documents. Annexure - 1 are Loan Agreement dated 04.03.2009, Schedule 1 in respect of contract No.939974, Schedule 1 in respect of contract No.939937, Annexure R-2 is Award dated 30th April, 2013 passed by Mrs. Ameeta Chheda, Arbitrator in Arbitration Proceeding No.C.G./2012/969 of 2012, Annexure R-3 is notice dated 18.11.2011 sent by Mahindra and Mahindra Financial Services Lt. to the complainant, Annexure R-4 is Notice dated 28.12.2011 sent by Mahindra and Mahindra Financial Services Ltd. to the complainant, Annexure R-5 are postal receipts and acknowledgments.
7. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint of the complainant by the impugned order.
// 10 //
8. Shri Ambrish Dutt Agrawal, learned counsel appearing for the appellant (complainant) has argued that on 25.02.2009, the appellant (complainant) had purchased one Mahindra 295 D.I. Turbo 39 H.P. Tractor bearing registration No.C.G.04-D.B.-8691 from the O.P. No.1 with the financial help of the O.P. No.2 & 3. The complainant had also purchased tractor trolley & 2 wheel hydraulic bearing registration No.C.G.-04-D.B.8690 with the financial help of the O.P. No.2 and O.P. No.3. The contract No. are 939937 and 939974 respectively. The loan amount was to be paid in 35 installments. The complainant was regularly depositing installments of the trolley. The total cost of the above trolley was Rs.1,25,000/- out of which a sum of Rs.79,000/- was deposited in cash and Rs.50,000/- was got financed. The interest amount was Rs.17,280/-.. The complainant deposited 30 installments regularly and only 5 installments were payable. IN the month of December, 2011, the O.P. No.1 & O.P. No.2 have repossessed the tractor trolley forcibly without giving any notice and sold the trolley but no intimation was given to the complainant. Even the amount of the sale consideration of the tractor trolley was not adjusted in the loan account of the complainant. On 28.04.2014, the complainant obtained information from the R.T.O. Raipur regarding the above trolley, then she came to know that the trolley is still registered in her name. The husband of the complainant fell ill and he had taken treatment for long time, and ultimately he died on 04.03.2012., therefore, there is irregularity in making payment of the installments. The award passed by the Arbitrator is for different vehicle and agreement, but the learned District Forum, has erroneously considered that the after passing of the award by the Arbitrator, the instant complaint has been // 11 // filed, therefore, the District Forum, has no jurisdiction to entertain the complaint. The above finding of the District Forum, is erroneous and the impugned order passed by the District Forum, is liable to be set aside. The appeal filed by the appellant (complainant) be allowed.
9. None appeared for the respondent No.1 (O.P. No.1). The notice was served to the O.P. No.1 through paper publication under Order - 5 Rule 20(1)(a) of CPC. The notice of the O.P. No.1 was published in daily news paper Haribhumi dated 23.09.2018. The address of the O.P. No.1 is given as National Highway 43, Dhamtari Road, Village Devpuri, Raipur (C.G.),Head therefore, it was ordered that the notice of the O.P. No.1 be published in the daily news paper, which is widely circulated in Raipur. On the basis of above order, the complainant got the notice of the O.P. No.1 published in daily news paper Haribhumi, Raipur. The O.P. No.1 also remain absent before this Commission.
10. Shri Rakesh Puri, learned counsel appearing for the respondent No.2 & 3 (O.P. No.2 & 3) has argued that the award passed by the Arbitrator in the Arbitration Case is relating to the vehicle in question and there is typographical mistake in the award of the Arbitrator. The complaint is barred by time. According to the appellant (complainant), the vehicle was repossessed by the O.P. No.2 & 3 in the month of December, 2011 , whereas the instant complaint has been filed on 16.05.2014, therefore, the complaint is barred by time. The impugned order passed by the District Forum, is just and proper and does not // 12 // call for any interference by this Commission. The appeal filed by the appellant (complainant), may be dismissed.
11. We have heard learned counsel appearing for the parties and have also perused the record of the District Forum, as well as the impugned order passed by the District Forum.
12. Firstly, we shall consider whether the complaint is barred by time ?
13. According to Shri Ambrish Dutt Agrawal, learned counsel appearing for the appellant (complainant), in para 9 of the complainant, the complainant has specifically pleaded that the complainant constantly contacted with the OPs in the year 2012 in for the first time in the month of December, 2012, the complainant was informed by the OPs that the tractor trolley was sold. The complainant had obtained information from R.T.O. Raipur on 28.04.2014, therefore, the cause of action was accrued in favour of the complainant on 28.04.2012 and continuous cause of action is accrued in favour of the complainant. The complaint has been filed on 16.05.2014, therefore, the complaint is within limitation. The above contention of the complainant is not acceptable.
14. The appellant (complainant) has specifically pleaded that in the month of December, 2011, the O.P. No.2 & 3 took possession of tractor trolley and parked the same at Mahadevghat Road, Raipur. It appears that the tractor trolley was repossessed by the O.P. No.2 & 3 in the month of December, 2011, therefore, the cause of action was accrued in favour of the complainant in the month of // 13 // December, 2011. Merely the pleading of the complainant that she constantly contacted to the O.P. No.2 & 3 and for the first time in the year 2012 the complainant was informed by the O.P. No.2 and 3 that tractor and trolley was sold , is not sufficient. The complainant has not filed any document to show that she contacted to the O.P. No.2 & 3 and sent any letter to the .P. No.2 & 3 before 28.04.2014 and merely making correspondence or sending notice does not give rise to fresh cause of action.
15. In United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Honble National Commission has observed thus :-
"6.......... correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus claim being barred by limitation, learned District Form committed error in allowing complaint."
16. In Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has observed that "Mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation."
17. The O.P. No.2 and O.P. No.3 have sent notices by registered post to the complainant on 18.11.2011 and 28.12.2011.In the above notices it is mentioned thus :-
"The above vehicle was financed to you under a loan agreement No.939974/939937 whereby you were required to repay the loan amount along with interest in periodical installments. You have defaulted in payment of the // 14 // periodical installments despite repeated reminders, have failed and neglected to pay the overdue amount and the late charges accrued thereon. In consequence of the above default, you have surrendered the vehicle to us, when called upon to discharge the above liability under the agreement. Still as a fair and last chance from our end, you are hereby called upon to clear the entire amount due under the said agreement within 07 (Seven) days from the date of receipt of this notice towards full and final discharge in respect of the above vehicle under the loan agreement. Should you failed to do so we shall be constrained to sell the said vehicle and appropriate the sale proceeds towards the receivable amount under the said loan agreement. In case of any shortfall after such appropriation, we reserve our right to recover the same from you as per law. Thus, we informed. Details of your account and the amount in arrears, place contact our Mahasamund Branch."
18. It appears that before taking possessing of the tractor trolley, the notices were sent by the O.P. No.2 and 3 to the complainant on 18.11.2011 and 28.12.2011, therefore, the cause of action was accrued on 28.12.2011. The O.P. No.2 and 3 have filed postal receipts and acknowledgements. From the above postal receipts and acknowledgements, it appears that the notices were duly served on the complainant., therefore, the cause of action was accrued in favour of the complainant on 28.12.2011, whereas the instant complaint has been filed on 16.05.2014, which is after two years. The complainant has not filed any application under Section 24A of the Consumer Protection Act, 1986 for condonation of delay in filing the complaint, therefore, the complaint is barred by time.
19. The O.P. No.2 and 3 have filed loan agreement dated 04.03.2009. In the loan agreement, the signatures of complainant (borrower) Smt. Gauri Devi, Amit Kumar (Co-borrower) and Dayaram (Guarantor) are present in each and // 15 // every page of the loan agreement. In Loan agreement it is mentioned that content of the agreement were explained in Hindi to the borrower. In Schedule No.1 regarding agreement No.939974, it is mentioned that the make of Produce (Model) is Tractor Trolley. In another Schedule 1 regarding Agreement No.939937, it is mentioned Make of Product (Model Mahindra 295 DI.
20. The O.P. No.2 & 3 have filed copy of award dated 30.04.2013 passed by the Arbitrator Mrs. Ameeta Chheda. In para 7 of the award, it is mentioned that "at the request of the Respondents, on 7th June, 2011, the Claimant advanced and lent a loan of Rs.3,65,000/- for the purchase of Vehicle MAHINDRA 265 DI BHOOMIPUTRA bearing Registration No. CG04DT0630." The complainant pleaded that she obtained loan for purchasing Mahindra 295 D.I. Turbo 39 H.P. Tractor and its contract No. is 939937 and had also purchased Trolley and its contract No. is 939974. It appears that the award has been passed by the Arbitrator regarding the tractor. In para 3(b) of the complaint, the complainant has specifically pleaded that tractor bearing registration No.C.G.-04-D.B.-8691 and trolley were repossessed by the O.P. No.2 & 3. It appears that both the vehicles were repossessed by the O.P. No.2 & 3 and the matter was referred to the Arbitrator. The notices were sent by the O.P. No.2 & 3 to the complainant on 18.11.2011 and 28.12.2011 (Annexure R-3 & R-4) in which both agreement Nos. are mentioned. The matter was referred to the Arbitrator for both the vehicles. We have perused the award dated 30.04.2013 passed by the Arbitrator. In the award it is mentioned that certain dispute arose between the Respondents and the Claimant in respect of the Loan Agreement. In para 4 of the award, it // 16 // is mentioned that the notice was sent to the complainant and it is also mentioned that the notice was duly served to the complainant and despite service by RPAD, on the last known address, as per provisions of the Arbitration and Conciliation Act, 1996, the respondents (complainant) failed either to reply or to attend the preliminary meeting held on 27th December, 2012. It appears that the notice was sent by the Arbitrator to the complainant and the complainant knows regarding the arbitration proceedings and the award was passed by the Arbitrator on 30.04.2013, whereas the instant complaint has been filed on 16.05.2014. It appears that the award was passed by the Arbitrator before filing of the instant complaint.
21. In the incase case, the respondent No.2 & 3 (O.P. No.2 & 3) have already availed remedy under Arbitration and Conciliation Act, 1996 and award had already been passed by the Arbitrator, therefore, the proceedings under the Consumer Protection Act, 1986 could not have been taken as alternative remedy and the complaint is not maintainable and is liable to be dismissed. Therefore, the District Forum, has rightly reached to the conclusion that after passing of the award by the Arbitrator, the District Forum, has no jurisdiction to decide the complaint.
22. On the basis of above discussions, the impugned order dated 05.04.2018, passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission.
// 17 //
23. Hence the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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