State Consumer Disputes Redressal Commission
Ramu Tiwari vs Mahendra & Mahendra Fiance Co.Ltd on 18 November, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/337
Instituted on : 16.05.2014
Ramu Tiwari, S/o: Shri Shitla Prasad Tiwari,
Civil Line, Raipur Naka,
Tah. & Dist. DURG (C.G.) ... Appellant.
Vs.
Mahendra & Mahendra Finance Co. Ltd.,
308, First Floor, Shyamu Shakuntala Complex,
214, Priyadarshini Parisar, Nehru Nagar Chowk, Bhilai,
Tah. & Dist. DURG (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K.PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Rajesh Pandey, Advocate for the appellant.
Shri Rakesh Puri, Advocate for the respondent.
ORDER
Dated : 18/11/2014 PER :- HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT. This appeal is directed against the order dated 28.04.2014 passed by District Consumer Disputes Redressal Forum, Durg (c.g.) (henceforth called "District Forum"), in complaint case no.CC/13/251. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Brief facts of the complaint filed by the appellant (complainant) before the District Forum are that the complainant purchased an Auto Rikshaw bearing registration No.C.G.07/T/3875 for his livelihood in // 2 // the month of February 2013 and finance was made after completing formalities and the vehicle was delivered to the complainant and thereafter the complainant paid instalment regularly. On 04.08.2013, the said vehicle was seized by the employees of the respondent (O.P.). The appellant (complainant) asked for the reason for seizing the vehicle but employees of the respondent (O.P.) told him to contact with their Office. The vehicle of the appellant (complainant) was seized without issuing notice and without giving pre-intimation. When the appellant (complainant) contacted the office of the respondent (O.P.), then it was intimated that as on 10.08.2013 a sum of Rs.21,386/- remain due against him. The complainant was ready to pay the same, but the respondent (O.P.) placed one more condition that he has to produce a new guarantor and the appellant (complainant) was ready for producing new guarantor. The respondent (O.P.) again put a condition that he can make guarantor to the person as suggested by the respondent (O.P.), which is not possible for the appellant (complainant). The appellant (complainant) sent legal notice to the respondent (O.P.) in the month of August 2013, but the reply of the said notice was not given by the respondent (O.P.) and the vehicle in question was not returned back to the appellant (complainant). Thus, deficiency in service has been committed by the respondent (O.P.). Hence, the complainant filed complaint and prayed to direct the respondent (O.P.) to return back the vehicle in question to the // 3 // appellant (complainant) and also pay a sum of Rs.50,000/- towards compensation for mental harassment from the respondent (O.P.).
3. The respondent (O.P.) filed its written statement before the District Forum and raised preliminary objection that an agreement has been executed between the appellant (complainant) and the respondent (O.P.), which contains condition in respect of judicial jurisdiction, which read thus:
"It is agreed by and between the parties hereto that the Courts at Mumbai alone shall have exclusive jurisdiction in respect of any matter, claims or dispute arising out of or in any way relating to these presents or to anything to be done under and pursuant to these presents or of any clause or provision thereof, notwithstanding that the whole or substantial part of the cause of action may not have arisen in Mumbai."
It has further been pleaded that District Forum, Durg has no jurisdiction to decide the case. The dispute arose between the parties is liable to be referred to the Arbitrator and learned District Forum has no jurisdiction to decide the matter.
It has further been pleaded that in the agreement executed between the parties, there is an arbitration clause for settling the dispute between them, which is at clause 15, which reads thus:
"All disputes, differences and/or claim arising out of these presents or in any way touching or concerning the same or as to constructions, meaning or effect hereof or as to the right and liabilities of the partiers hereunder shall be settled by arbitration to be held in accordance with the provision of the Arbitration and Conciliation Act, 1996 or any statutory amendments thereof and shall be referred to the sold arbitrator to be nominated by the lender. In the event of death, refusal, neglect, inability or incapability of a person so appointed to act as an arbitrator, the lender may appoint a new arbitrator. The arbitrator shall not be required to give any reasons for the award and // 4 // the award of the arbitrator shall be final and binding on all the parties concerned. The arbitration proceeding shall be held in Mumbai."
It has further been pleaded that the appellant (complainant) is not "consumer" of the respondent (O.P.) and the appellant (complainant) has filed the complaint with malafide intention, therefore, the complaint is liable to be dismissed.
It has been further pleaded that the appellant (complainant) has not paid the amount of instalments in time, for which the respondent (O.P) had sent notices from time to time to him, but even then the appellant (complainant) has not paid the instalments and the appellant (complainant) evaded in this regard. The respondent (O.P.) had sent reply of the notice sent by the complainant and also aware him about all facts. The respondent (O.P.) had given information to the appellant (complainant) and the guarantor to obtain the vehicle in question back by writing a letter dated 27.08.2013. The proceedings which have been initiated by the respondent (O.P.) are as per terms and conditions of the agreement executed between the parties. The respondent (O.P.) further pleaded that the relief sought by the appellant (complainant) from the respondent (O.P.) is improper and the complaint is liable to be dismissed.
4. Learned District Forum after having considered the material placed before it, has dismissed the complaint by the impugned order dated 28.04.2014. Hence this appeal.
// 5 //
5. The appellant (complainant) has filed documents. Annexure 1 is vehicle details, Annexure 2 is repayment schedule, Annexure 3 is letter dated 04.02.2013 sent by the respondent (O.P.) to the appellant (complainant) and the guarantor, Annexure 4 is registered notice sent by Shri Ashish Shukla, Advocate on behalf of the appellant (complainant) to the respondent (O.P.).
6. The respondent (O.P.) has also filed documents. Document 1 is Loan Agreement executed between the appellant (complainant) and the respondent (O.P.), document 2 is copy of intimation given by the respondent (O.P.) dated 24.6.2013, 12.7.2013 and 26.7.2013, document 3 is copy of letter dated 26.08.13 sent by the respondent (O.P.) to the respondent (complainant) and his guarantor to clear the entire amount due under the agreement within seven days from the date of receipt of this notice, document 4 is details of the account of the appellant (complainant), document 5 is reply of letter, dated 27.08.2013 sent by Shri Ashish Shukla, Advocate to the respondent (O.P.) in response to their notice dated 07.08.2013.
7. Shri Rajesh Pandey, learned counsel appearing for the appellant (complainant) argued that the appellant (complainant) was ready to pay the due amount to the respondent (O.P.) but the respondent (O.P.) had forcibly took possession of the vehicle in question with the help of its employees illegally. Before repossession of the vehicle in question, // 6 // the respondent (O.P.) did not give any intimation to the appellant (complainant) and thus the respondent (O.P.) violated the terms and conditions of the agreement executed between the parties. He further argued that learned District Forum has also wrongly held that the respondent (O.P.) has not committed any deficiency in service and the act of the respondent (O.P.) does not come in the category of unfair trade practice. He further argued that learned District Forum has completely ignored facts and material submitted by the appellant (complainant) before it. Even no notice was served on the appellant (complainant) regarding referring the matter to the Arbitrator, therefore, learned District Forum, has jurisdiction to hear and decide the matter.
8. Shri Rakesh Puri, learned counsel appearing for the respondent (O.P.) has supported the impugned order and submitted that the impugned order does not call for any interference by this Commission. He argued that an agreement has been executed between the parties and according to the said agreement only Court at Mumbai alone shall have exclusive jurisdiction in respect of any matter, claims or dispute arising between them. Therefore, District Forum, Durg (C.G.) has no jurisdiction to decide the matter and the impugned order passed by the District Forum is without any jurisdiction. He placed reliance on the judgment of Hon'ble Supreme Court in the case of Anup Sarmah // 7 // Vs. Bhola Nath Sharma & Ors., Special Leave Petition (Crl.) No.8907 of 2009, order dated 30.10.2012.
9. We have heard arguments of both the parties and also perused the record of the District Forum.
10. Firstly we shall consider whether learned District Forum, Durg has jurisdiction to try the case ?
11. Shri Rakesh Puri, learned counsel appearing for the respondent (O.P.) has argued that an agreement has been executed between the parties in which it has been agreed that if any dispute arises between them, the Courts at Mumbai alone shall have exclusive jurisdiction in respect of any matter, claims or dispute and the agreement is binding upon both the parties, therefore, the District Forum, Durg (C.G.) has no jurisdiction to try the case.
12. We have also perused the averments mentioned in the complaint.
13. In para 2 of the complaint, the appellant (complainant) has specifically pleaded that he purchased an auto rickshaw Mahindra Alpha in the month of February, 2013 from the respondent (O.P.) and the office of the respondent (O.P.) is situated at 308, 1st Floor, Shyamu Shakuntala Complex, 214 Priyadarshani Parisar, Nehru Nagar Chowk, Bhilai. The respondent (O.P.) has filed copy of loan agreement // 8 // executed between the parties. According to the said loan agreement, the vehicle in question was delivered to the appellant (complainant) at Bhilai (Durg). Notices dated 24.06.2013, 12.07.2013 and 26.07.2013 were sent by the respondent (O.P.) to the appellant (complainant). In notice dated 26.07.2013 the address of the respondent (O.P.) has been mentioned, which is mentioned as above. Looking to the above documents, it appears that the office of the respondent (O.P.) is situated at Bhilai, District Durg (C.G.).
14. Sub section 2 of Section 11 runs as follows :-
"(2) A complaint shall be instituted in District Forum within the local limits of whose jurisdiction -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or, carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry or business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
15. In the case of Santa Banta Com. Limited & Anr. vs. Porsche Cars & Ors. I (2014) CPJ 516 (NC), Hon'ble National Commission has observed thus :-
// 9 // "15. As regards the decision of the Supreme Court in Sonic Surgical (supra), on which reliance has been placed in the impugned order, it is clearly distinguishable on facts. In that case, insurance policy had been taken at Ambala; the fire broke out in godown at Ambala and claim for compensation was also made at Ambala, which, as noted above, is not the case here. In the light of those facts it was held that no "cause of action" arose at Chandigarh, where the complaint under the Act was filed.
16. For the foregoing reasons, the appeal succeeds and is hereby allowed with no order as to costs. The impugned order is set aside and the complaint is restored before the State Commission, UT, Chandigarh for being decided on merits. The State Commission is requested to dispose of the complaint as early as possible."
16. In the case of Tata Coffee Ltd. vs. N. Sreenivasalu, N. Murari, N. Venkatesh, N. Balaji (supra), Hon'ble National Commission has observed thus :-
"11. The issue of territorial jurisdiction is again raised in the revision petition. But, we find that the petitioner / OP has solely relied upon a stipulation in the purchase bill stating ''all disputes are subject to Bangalore jurisdiction'. In support, the revision petition contends that when two Courts have concurrent jurisdiction to entertain and try a dispute, the parties can by consent confer exclusive jurisdiction on one of the two Courts. This is factually incorrect. No evidence was led before the Fora below to show that the two sides had 'mutually consented' to keeping the jurisdiction in Bangalore. On this issue District Forum has relied upon the provisions in Section 12(1)(a) in the Act to hold that as the goods were delivered in Bellary, the jurisdiction lay with the District Forum at Bellary. We may add here that in terms of the provision in Section 11(1)(c) the jurisdiction would lie with the District Forum where the cause of action has arisen, whether wholly or in part. In the present case, the cause of action arose in Bellary, where the goods were physically received and utilized. It arose when the block boards used in making of the furniture items // 10 // were found to be infested with the borer pest. We, therefore, hold that the District Forum, Bellary has rightly exercised jurisdiction over the consumer complaint in this case.
In the light of the details considered above, we find no justification to interfere with the concurrent findings of the Fora below, in exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The revision petitions are held to be devoid of merit and are dismissed as such."
17. In the case of Monto Motors Ltd. vs. Sri Sai Motors & Anr. IV (2013) CPJ 372 (NC), Hon'ble National Commission has observed thus:-
"10. Learned Counsel for the petitioner further submitted that District Forum, Bellary had no jurisdiction to entertain the complaint as disputes were subjected to jurisdiction of Delhi Courts as per letter of intent dated 17.9.2002. We do not agree with this submission as dealership was granted for Bellary and showroom was also opened at Bellary and security amount was also given for running dealership at Bellary. In such circumstances, cause of action had also arose at Bellary and as per Section 11 of Consumer Protection Act; complaint can be filed within the local limits of District Forum in whose jurisdiction cause of action arises. Merely by mentioning that all disputes are subjected to jurisdiction of Delhi Courts in the letter of intent, jurisdiction of Court at Bellary is not ousted."
18. In the case of Neha Singhal Vs. Unitech Limited and Abhishek Singhal vs. Unitech Limited, II (2011) CPJ 88 (NC), Hon'ble National Commission has observed thus :-
"3..............
In a similar case FA No.425 of 2010 - Munish Sahgal v. DLF Home Developers Limited, the State Commission had taken the same // 11 // view. The above mentioned appeal was allowed by this Commission, vide order dated 9th February, 2011, based on the decision dated 11th April, 2002 of a 3 - Member Bench of this Commission in FA No.142 of 2001, Smt. Shanti v. M/s. Ansal Housing and Construction Ltd. The only point of some relevance in this case is that the house property in question is located in NOIDA, Gautam Budh Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of Section 11(2)(b) of the Consumer Protection Act, 1986 ('the Act'). To emphasise the clause relating to jurisdiction of "Courts" in the agreement between the parties cannot by itself over-ride the statutory right of the appellant / complainant conferred by the above mentioned provision of the Act - that would defeat the purpose and object of the Act. This view is also in accord with the provisions of Section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January, 1997)."
19. From the above cited judgments, it appears that merely by mentioning that all disputes are subjected to jurisdiction of Mumbai Court in the agreement, the jurisdiction of the District Forum, Durg is not ousted, therefore, we are of a firm view that District Forum, Durg has jurisdiction to decide the instant matter.
20. Learned counsel for the respondent (O.P.) has argued that a loan agreement has been executed between the parties in which it has been agreed that if any dispute arises between them, the matter will be // 12 // referred to the Arbitrator, therefore, District Forum, Durg (C.G.) has no jurisdiction to try the case.
21. In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit // 13 // under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
22. In the case of Instalment Supply Ltd. vs. Kangra Ex- Serviceman Transport Co. & Anr., I (2007) CPJ 34 (NC), Hon'ble National Commission, has observed thus :-
"3. Dissatisfied with the order of State Commission, the petitioner has filed the revision. It was contended by the Counsel of the petitioner that an arbitration award has been passed in this case which is binding on the parties. He further submitted that the complaint was barred by res judicata inasmuch as respondent No.1 concealed from this Commission that all disputes between the petitioner and respondent No.1 had already been settled by arbitration in accordance with Arbitration Agreement contained in the said Hire Purchase Agreement (HPA). The award dated 5.9.2000 of the Arbitrator Mr. K.L. Bhendwal had already been published and delivered and the award takes into account all the payments made or due. In terms of said award, the respondent No.1 owes the petitioner a sum of Rs.58,114 towards arrears of hire money, interest and other charges under the said agreement. Though, this fact was brought to the notice of District Forum in the reply but was ignored.
"..........The said award had taken into account all payments made or due under the said agreement, and // 14 // has held that the respondent No.1 owed the appellant a sum of Rs.58,114 towards arrears of hire money, interest and other charges under the said agreement."
23. The respondent (O.P.) has not been able to prove that the matter was referred to the Arbitrator before filing the consumer complaint by the appellant (complainant) before the District Forum and any award was passed by the Arbitrator in the matter. On the basis of judgment of Hon'ble Supreme Court in M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy (Supra), it is clear that the appellant (complainant) has a right to chose appropriate Forum for redressal of his grievances and the appellant (complainant) has filed consumer complaint before the District Forum, therefore, the District Forum, has jurisdiction to try the case.
24. Now we shall consider whether the action of the respondent (O.P.) to repossess the vehicle in question is against the provision of law and the respondent (O.P.) has took the possession of the vehicle in question forcefully ?
25. The respondent (O.P.) has filed photocopy of the notice dated 24.06.2013, 12.07.2013 and 26.07.2013 which were sent by the respondent (O.P.) to the appellant (complainant). By the said notice, the respondent (O.P.) demanded balance amount from the appellant (complainant). In notice dated 26.07.2013, it is mentioned that **io w Z w ukuqlkj jde vnk;xh u gkuss ij okgu tIr dj fy;k tk,xkA** In the lp // 15 // notice dated 12.07.2013, it is mentioned that **jde vnk;xh u gku s s dh fLFkfr eas vkidk okgu tIr dj fy;k tk,xkA** In the notice dated 24.06.2013, it is mentioned that **gLrk{kj djus ls bUdkj fd;kA**
26. In the case of Suryapal Singh v. Siddha Vinayak Motors & Anr., III (2012) CPJ 4 (SC), Hon'ble Supreme Court, has observed thus :-
"2. This Court vide its judgment in Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A. Mathai @ Babu & Anr. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha & Ors. v. Sudhir Mehra, VI (2001) SLT 883 = III (2001) CCR 232 (SC) = 2001 (7) SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. v. The State of Kerala & Anr., AIR 1966 SC 1178; Smt. Lalmuni Devi v. State of Bihar & Ors., I (2001) SLT 26 = I (2001) CCR 9 (SC) = 2001 (2) SCC 17 and Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC 146."
27. In the case of Pramod Kumar Rai v. Shriram Transport Finance Co. Ltd., III (2012) CPJ 553 (NC), Hon'ble National Commission has observed that Finance Company is well within its right to seize the vehicle as per the agreement.
28. In the instant case, the appellant (complainant), has not produced any documents to show that the respondent (O.P.) has // 16 // forcibly took possession of the vehicle in question or the respondent (O.P.) took the possession of the vehicle by using muscle power.
29. According to the appellant (complainant), the respondent (O.P.) forcibly took possession of the vehicle in question, but the appellant (complainant) did not plead in his complaint that on which date the vehicle in question was repossessed by the respondent (O.P.). Had the respondent (O.P.) forcibly took possession of the vehicle in question, the appellant (complainant) immediately would lodged report to the concerned Police Station regarding illegal repossession of the vehicle, but the appellant (complainant) was silent in the matter and he could not file any documents which indicate that the employees of the respondent (O.P.) took possession of the vehicle in question forcibly. On the contrary the respondent (O.P.) filed copy of the notices sent by the respondent (O.P.) to the appellant (complainant) and the guarantor, which specifically shows that notices were sent to the appellant (complainant) & guarantor prior to taking possession of the vehicle in question.
30. From bare perusal of the documents filed by both the parties, it appears that the appellant (complainant) purchased the vehicle in question with the financial help of the respondent (O.P.) and the appellant (complainant) failed to pay the instalments regularly. The respondent (O.P.) sent notices to the appellant (complainant) from time to time for depositing the instalments. From bare perusal of the // 17 // documents (notices) it appears that the appellant (complainant) did not deposit the full amount of the loan taken by him from the respondent (O.P.) for purchase of the said vehicle.
31. The appellant (complainant) has utterly failed to prove that the vehicle in question was forcibly repossessed by the respondent (O.P.). The pleading advanced by the appellant (complainant) is not reliable and is not acceptable, therefore, the impugned order passed by the learned District Forum, does not suffer from any irregularity and illegality and does not call for any interference of this Commission.
32. Therefore, the appeal filed by the appellant (complainant) being devoid of any merit, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (D.K.Poddar)
President Member
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