National Consumer Disputes Redressal
Induslnd Bank Limited & Anr. vs Simarjit Singh on 20 July, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 187 OF 2019 (Against the Order dated 26/10/2018 in Appeal No. 11/2009 of the State Commission Punjab) 1. INDUSLND BANK LIMITED & ANR. THROUGH ITS BRANCH MANAGER, SCO 21, FEROZ GANDHI MARKET, OPP. LUCHIANA STOCK EXCHANGE, LUDHIANA PUNJAB 2. INDUSLND BANK LTD. THROUGH ITS CHAIRMAN, 701, SOLITAIRE CORPORATE PARK, 167, GURU HARGOVINDJI MARG, ANDHERI EAST, MUMBAI MAHARASHTRA ...........Petitioner(s) Versus 1. SIMARJIT SINGH S/O. ZORA SINGH, R/O. VILLAGE BHASAUR, TESHIL DHURI, DISTRICT-SANGRUR PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER
For the Petitioner : Mr. Yogesh Kanna, Advocate For the Respondent : In person
Dated : 20 Jul 2021 ORDER
1. Heard Mr. Yogesh Kanna, Advocate, for the petitioners and Mr. Simarjit Singh, the respondent, in person, through video conferencing and examined the written submission filed by them and the record of the case.
2. This revision has been filed against the order of State Consumer Dispute Redressal Commission, Punjab, Chandigarh, dated 26.10.2018, passed in Appeal No. 11 of 2009, (renumbered as Special Consumer Complaint No. 344 of 2008), (arising out of the order of District Consumer Disputes Redressal Forum, Sangrur, dated 04.12.2008, passed in Consumer Complaint No. 344 of 2008), whereby District Consumer Disputes Redressal Forum, has dismissed the complaint and the appeal of Simarjit Singh, filed from the aforesaid order, has been treated/converted as the original complaint before State Consumer Dispute Redressal Commission, registered as Special Consumer Complaint No. 344 of 2008 and allowed. The petitioners have been directed to pay Rs.10,80,000/- as deprecated value of the vehicle, Rs.20,00,000/- as the value of timber loaded in it on the date of taking possession, Rs.3000/- per month from 05.07.2008 till actual payment to the respondent, by way of damages. Apart from above, an interest @ 9% per anum on the aforesaid amounts and cost of Rs.40,000/- have been allowed to the respondent.
3. Simarjit Singh (the respondent) filed Consumer Complaint No. 344 of 2008, against Indusind Bank Limited, SCO 21, Feroz Gandhi Market, opposite Ludhiana Stock Exchange, Ludhiana, through its Branch Manager and Indusind Bank Limited, 701, Solitaire Corporate Park, 167, Guru Hargovindji Marg, Andheri East, Mumbai, through its Chairman, (the petitioners) (hereinafter referred to as the financer) for (i) release of vehicle No. PB-13 Q-8731, (ii) to give back the timber loaded in the vehicle and two trapals of 24' X 14' each, (iii) to return all the documents of the vehicles (iv) to pay of Rs.4,00,000/- as the financial loss caused the respondent, (v) to pay Rs.5,00,000/- for his mental agony, torture and pain and (vi) Rs.11,000/- as the cost of litigation. It has been stated in the complaint that the complainant had purchased a Ashoka Layland, 4018 Tusker Turbo Tractor 130 WB, bearing Chassis No. WFA 062339, Engine No. XFH-392266 and registration No. PB-13 Q-8731 (hereinafter referred to as the vehicle) from Sindh Motors Pvt. Ltd, Ludhiana, for Rs.13,50,000/- in July 2006. Petitioner-1 financed the aforesaid sale consideration and opened Loan Account No. JL-003804H, in the name of the respondent. The respondent was paying monthly instalments of Rs.35,150/- regularly. However, due to financial problem, the respondent had committed default in payment of 3 instalments. The financer issued a demand notice dated 12.03.2008, showing an amount of Rs.1,39,335/- due towards monthly instalments. Then the respondent deposited Rs.1,04,200/- on 24.03.2008, Rs.35,150/- on 06.05.2008 and Rs.36,000/- on 31.05.2008 (total Rs.1,75,350/-). The respondent had deposited total Rs.8,19,300/- up to 31.05.2008 while, according to the schedule of the instalments, he had to pay total Rs.8,08,000/- up to June, 2008. The respondent was going to Srinagar from Gandhi Dham (Gujarat) on 03.07.2008, along with the vehicle, loaded with the timber for its delivery but due to truck drivers/owners strike, he had to stay at his village Bhasaur, which was on the way to Srinagar. The respondent got filled with diesel, in the vehicle on 04.07.2008 and started his journey to Srinagar with the vehicle. As soon as he came out of his village Bhasaur, about 10-12 peoples, representing themselves to be men of the financer, stopped the vehicle and took forcible possession of it along with timber loaded in it. The financer did not give any prior notice for taking possession of the vehicle. In the vehicle, timber of Rs.20,00,000/- was loaded, which was also taken by the men of the financer. Due to highhandedness act of the financer, the consignment could not be delivered in Srinagar, which caused heavy financial loss to the respondent. The financer issued a notice dated 09.07.2008, demanding Rs.1,16,504/-, which was much more than the dues of amount of instalments. The respondent visited to the branch office of financer in Ludhiana, several times and prayed to settle the matter and release the vehicle but financer did not pay any head. On these allegations, the complaint was filed on 21.07.2008.
4. The financer contested the case and filed their written reply. They admitted that they had advanced loan amount of Rs.13,50,000/- through loan Agreement dated 22.07.2006, for purchasing aforesaid vehicle. It has been stated that the respondent had committed default in payment of the instalments for the months of October and November, 2007 and February, 2008, for which demand notice dated 12.03.2008 was issued. They denied payment by the respondent was in excess of amount of the instalments till June 2008. The respondent took another loan of Rs.8,77,000/- vide Loan Account No. JL 004071H and had committed several defaults in payment of its instalments. The respondent, therefore, voluntarily surrendered the vehicle to the financer on 05.07.2007 at branch office Ludhiana, saying that he was unable to pay the dues of instalments. The respondent also executed and signed a Surrender Deed dated 07.07.2008. Even then as a good gesture, the financer gave notice dated 09.07.2008 to the respondent and his guarantor of the loan, calling them to deposit the amounts of the instalments and get back the vehicle but they did not turn up. Earlier, the respondent had given a cheque to pay the amount of instalments but the cheque was dishonoured due to insufficient fund, for which the financer had initiated a criminal proceeding against the respondents under Section 138 of Negotiable Instruments Act read with Section 420 IPC, before Judicial Magistrate, Ludhiana. The present complaint has been filed as a counter blast of the criminal case. It has been denied that the financer had employed muscles men, who had taken forcible possession of the vehicle. It has been stated that the timber loaded in the vehicle was got unloaded from it and loaded in another vehicle by Balwant Singh, the representative of the respondent with his consent and taken away by him, along with the documents of the consignment, for which they had executed deed. It has been denied that the respondent visited the branch office for settlement at any time. The respondent was not entitled for any relief. Preliminary objections relating to territorial and pecuniary jurisdiction of District Forum and maintainability of complaint have also been raised.
5. District Consumer Disputes Redressal Forum, Sangrur, by its judgment dated 04.12.2008, came to the conclusion that the respondent had voluntarily surrendered the vehicle on 05.07.2008, at the branch office of the financer at Ludhiana. Total valuation of the claims, made in the complaint, exceeded Rs.20 lakh as such District Forum did not have either pecuniary or territorial jurisdiction. On these findings, the complaint was dismissed.
6. The respondent filed First Appeal No. 11 of 2009 from the aforesaid order. State Consumer Disputes Redressal Commission, vide judgment dated 16.12.2009 allowed the appeal and awarded Rs.10,80,000/- as cost of the vehicle, Rs.5,00,000/- as compensation and Rs.4,00,000/- for loss of business. The financer filed Revision Petition No. 1126 of 2010 and the respondent filed Revision Petition No. 3296 of 2010 from the aforesaid order. Both the revisions were consolidated and decided by common judgment dated 13.12.2017, by this Commission. This Commission found that the District Forum had held that it did not have either pecuniary or territorial jurisdiction, therefore, it was incumbent for the State Commission to advert on this issue and only on reversing this finding, the appeal could have been allowed; The financer took the plea that the vehicle was sold on 31.03.2009, State Commission ought to have obtained the papers relating to sale of the vehicle from the financer and ought to have examined its genuineness; Award of the compensation of Rs.10,80,000/- for loss of the vehicle, had no basis; Effect of the arbitration proceeding on this proceeding also ought to have been examined; Findings that the document relating to surrender was a fabricated document was based upon presumption. On these findings, the revisions were disposed off, order of State Commission was set aside and the matter was remanded to State Commission for fresh decision.
7. After remand, the State Commission granted time to the financer to file papers relating to sale of the vehicle and any other evidence, which they wanted to file. In spite of time being granted, no evidence was filed by the financer. State Commission, after hearing the parties, by its judgement dated 26.10.2018, found that as soon as District Forum came to the conclusion that it had no territorial and pecuniary jurisdiction, it ought to have returned the complaint for presentation before the Forum/Commission of competent jurisdiction. Its findings, on merit, were without jurisdiction. Total valuation of the claims made in the complaint was Rs.42,50,000/- as such District Forum had no pecuniary jurisdiction and the complaint was cognizable by Sate Commission. So far as territorial jurisdiction is concerned according to the respondent, forcible possession of the vehicle was taken from a place falling within district Sangrur while according to the financer, the vehicle was surrendered to its branch office, Ludhiana. In both the cases, State Commission has territorial jurisdiction. As about 10 years has already elapsed after filing the complaint, as such, relying upon the judgement of Supreme Court in Charan Singh Vs. Healing Touch Hospital, 2000 (2) CLT 489 and exercising powers under Section 17 (1) b) of the Act, the appeal was directed to be treated as the complaint and registered as Original Complaint before State Commission. State Commission further held that the financer gave notice dated 12.03.2008, demanding Rs.1,39,335/- towards the dues of the instalments. After receiving this notice, the respondent deposited Rs.1,04,200/- on 24.03.2008, Rs.35,150/- on 06.05.2008 and Rs.36,000/- on 31.05.2008 (total Rs.1,75,350/-). From which it was proved that on the date of possession, nothing was due towards instalment of the loan. The financer took the plea that the respondent had taken another loan of Rs.8,77,000/- vide Loan Account No. JL 004701H; Instalments of that Loan Account were due for which the respondent had given a cheque but it was dishonoured for insufficient fund and a criminal case under Section 138 of the Negotiable Instrument Act, read with Section 420 IPC had been initiated against him, in the Court of Judicial Magistrate, Ludhiana and due to dues of this loan account, the vehicle was surrendered on 05.07.2008, but a perusal of judgement of Judicial Magistrate, Ist Class, Ludhiana shows that the respondent was acquitted from the charges on the finding that the financer had failed to prove that there was any liability against the respondent, for which the cheque was allegedly issued; alleged surrender letter dated 07.07.2008 was a document, fabricated on a blank signed paper. For these reasons, State Commission disbelieved the case of the financer that there was any dues against the respondent for which he had voluntarily surrendered the vehicle. State Commission held that the financer took forcible possession of the vehicle along timber loaded in it, on 04.07.2008, from a place falling in district Sangrur when it was in the way to Srinagar without giving any prior notice and committed deficiency in service. State Commission further found that the financer took the plea that the timber loaded in the vehicle was handed over to one Balwant Singh, representative of the respondent but no evidence has been adduced to show that Balawant Singh was representative of the respondent. State Commission found that the vehicle was purchased for Rs.13,50,000/- in July 2006. Giving 20% depreciation on its value for two years, compensation was assessed to Rs.10,80,000/-, cost of the timber was assessed to Rs.20,00,000/-, loss of income of the respondent was assessed to Rs.3000/- per month. On these findings State Commission allowed the appeal/complaint and the respondent was awarded compensation, as stated above.
8. We have considered the arguments of the parties and examined the record. First point raised is that District Forum, vide judgment dated 04.12.2008, recorded findings that it had no pecuniary and territorial jurisdiction and also there was no merit in the case. Consumer Protection Act, 1986 does not provide for return of the complaint. State Commission by the impugned judgment dated 26.10.2018, converted the appeal into the original complaint. Under Section 24-A of the Act, limitation of two years have been provided for filing the complaint. After inordinate delay, the appeal was converted into complaint, which caused miscarriage of justice to the financer although cause of action arose on 04.07.2008/05.07.2008 and inordinate delay is not liable to be condoned.
9. There was no dispute that the complaint was filed within time and after its dismissal, the appeal was also filed within time. It is well settled that if a court/authority has no pecuniary and territorial jurisdiction, then it cannot assume jurisdiction to dismiss the case. In such circumstances, the only course was open, to return the complaint for presentation before Forum/Commission of competent jurisdiction, even in absence of any specific provision in this respect under Consumer Protection Act, 1986. Delay occurred during this period is liable to be excluded under Section 14 of the Limitation Act, 1963. A perusal of the judgement of State Commission shows that it found the appeal was continuation of the original proceeding. Entire original record was summoned and before State Commission. Relying upon the judgement of Supreme Court in Charan Singh Vs. Healing Touch Hospital, 2000 (2) CLT 489 and exercising powers under Section 17 (1) b) of Consumer Protection Act, 1986, the appeal was directed to be treated as the complaint and registered as Original Complaint before State Commission. State Commission has not committed any illegality nor is there any miscarriage of justice to the financer.
10. The counsel for the financer submitted next point that the respondent had voluntarily surrendered the vehicle on 05.07.2008 and had given a writing in this respect on 07.07.2008. Burden was upon the respondent to prove that this document did not bear his signature. In the absence of any evidence contrary to it, this document could not be ignored. Findings that there was deficiency of service on the part of the financer is incorrect.
11. State Commission has recorded a categorical finding that document dated 07.07.2008 was fabricated upon a blank signed paper, as the margin of the lines of typed material on this paper is different at various places, which proved that the material has been adjusted above the signature on blank page. The financer has not filed a Photostat copy of document dated 07.07.2008, nor has raised any ground that this finding is incorrect. The finding of fact recorded by State Commission has not been challenged in legal way. The circumstances that (i) The respondent has deposited Rs.36,000/- on 31.05.2008 (Exibit-C-24), (ii) Admittedly there was no dues of instalment of Loan Account No. JL003804H, while in the surrender deed dated 07.07.2008, dues of Loan Account No. JL003804H was shown, (iii) The vehicle was surrendered on 05.07.2008 (as mentioned in this deed) but there was no reason for not giving this writing on 05.07.2008 and postponing it for 07.07.2008, (iv) Admittedly the vehicle was loaded with timber, which had to be delivered in Srinagar and at that time, there was no compulsion upon the respondent to surrender the loaded vehicle. In normal course it could be surrendered after delivery of the consignment, for which the respondent would also get its fair and (v) Contrary to the writing in this document, the financer took a plea in written statement that dues upon the respondent was in respect of Loan Account No. JL004701H, which was found to be false by State Commission, fully established that the financer took false plea of surrender of the vehicle. The financer is not challenging these findings of State Commission in this respect in revision. All these circumstances clearly establish that the financer had fabricated this document to justify its illegal and highhandedness action of taking forcible possession of the vehicle without giving any prior notice which amounted to unfair trade practice.
12. Admittedly, the vehicle was loaded with timber, at the time of taking possession by the financer. In paragraph-3-C of the written statement, the financer took plea that one Balwant Singh, representative of the respondent unloaded the timber from the vehicle and loaded it in another vehicle and taken away. The financer has produced a writing of Balwant Singh (Ex-R-10) in this respect. State Commission has recorded a categorical finding that Exhibit-R-10 was not countersigned by the respondent nor there was any evidence to prove that Balwant Singh was a representative of the respondent. Now in the revision, a new case has been taken that Balwant Singh was an authorised person of the Transporter, New Bikaner, Punjab, Haryana Roadlines and Exhibit R-10 was countersigned by the respondent. Exhibit R-10 has not been produced in the revision to challenge the findings recorded by State Commission in this respect. Admittedly, the financer had taken possession of the documents relating to the timber and it was not produced before the State Commission, in spite of opportunity given to them in this respect as such value of the timber as determined by State Commission cannot be challenged before this Commission. In any case, the State Commission has given liberty to the financer to realise the amount of timber from Balwant Singh as such no material prejudice has been caused to him.
13. State Commission disbelieved the case of the financer that the respondent had voluntarily surrendered the vehicle. The possession of the vehicle was taken by the financer. In the absence of any prior notice in the respect, it was unfair trade practice. So far as the arguments that the vehicle was purchased for commercial purpose is concerned, State Commission found that the respondent himself was driving this vehicle and earning his livelihood from it. There is no contrary material to contradict this finding. Award of Arbitrator was set aside due to order of the State Commission as such it has no effect under the law. A perusal of ledger of Loan Account No. JL003804H shows that for obtaining loan of Rs.13,50,000/- the petitioner had deposited Rs.4,69,323/- as marginal money. Purchase price of the vehicle might be more than Rs.18 lakh. Compensation for loss of vehicle and loss of income have been assessed on lower side.
O R D E R
In view of the aforementioned discussions, the revision has no merit and is dismissed.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER