State Consumer Disputes Redressal Commission
Simarjit Singh vs Indusind Bank Ltd. on 2 June, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 779 of 2015
Date of institution: 20.7.2015
Date of Decision:02.06.2016
Simarjeet Singh S/o Jora Singh R/o V.P.O. Bhasaur, Tehsil Dhuri, District
Sangrur. Appellant/Complainant
Versus
1. Indusind Bank Ltd., Firozgandhi Market, Opp. Ludhiana Stock
Exchange, Ludhiana through its Branch Manager.
2. M/s Indusind Bank Ltd., 701, Solitaire Corporate Part, 167, Guru
Hargobind Ji Marg, Andheri, East, Mumbai through its
Chairman/Managing Director.
3. Indusind Bank Ltd., Gaoshala Road, through its Branch Manager,
Sangrur.
Respondents/Ops
First Appeal against the order dated 23.6.2015
passed by the District Consumer Disputes
Redressal Forum, Sangrur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Sh. Munish Goel, Advocate
For the respondents : Sh. Parminder Singh, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant(hereinafter referred as complainant) has filed the present appeal against the order dated 23.6.2015 passed by the District Consumer Disputes Redressal Forum, Sangrur (hereinafter referred as the District Forum) in First Appeal No. 779 of 2015 2 consumer complaint No. 315 dated 8.7.2013 vide which the complaint filed by the complainant was dismissed.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that he purchased a truck Ashok Leyland bearing Registration No. PB-13R- 8831, engine No. BPE-0012964, Chassis No. BPR-153831 for a consideration of Rs. 11 lacs and one loan agreement was executed between the complainant and Ops bearing No. JL-004714 dated 7.8.2007 and a sum of Rs. 8.77 lacs was advanced as loan, which was required to be paid in 46 monthly instalments. Complainant himself spent a sum of Rs. 2 lacs for purchase of the said vehicle. Complainant was regularly paying due instalments but in the month of January, 2008, the vehicle met with an accident in Rajasthan, which was taken into Police custody by Rajasthan Police. Complainant requested Ops to take the vehicle on superdari and give the possession to him so that he can make the monthly instalments as the complainant himself could not arrange for the guarantor. The vehicle was taken on superdari by Ops from the Court and they are using the vehicle and earning their income. Complainant approached Ops number of times and requested to deliver the possession of the vehicle but they were dilly-dallying the matter on one pretext or the other. He also came to know that the matter was referred to the Arbitrator, who passed his award dated 13.3.2009 for a sum of Rs. 9,74,774/-. Ops had no right to recover the award amount. Complainant had purchased this vehicle to earn his livelihood. First Appeal No. 779 of 2015 3 Despite several requests, the vehicle was not released and possession of the vehicle was given to him by Ops, therefore, there was deficiency in service on the part of Ops. Hence, the complaint with the direction to Ops to release the vehicle or to pay the cost of the vehicle, direct the Ops to pay a sum of Rs. 6 lacs for unlawful use and occupation and they should also pay Rs. 2 lacs for mental agony and harassment and inconvenience and Rs. 22,000/- as litigation expenses.
3. Complaint was contested by Ops, who filed their reply taking preliminary objections that the complaint earlier filed by the complainant on the same cause of action, which was dismissed in default on 20.2.2013 and application for its restoration was dismissed on 8.5.2013; the District Forum had no territorial jurisdiction to entertain and decide this complaint; complaint in the District Forum was not maintainable; complainant had not come to the Forum with clean hands; complainant suppressed the material facts from the Forum; complaint was baseless and flagrant abuse of process of law to harass and blackmail this Op; complainant had purchased the vehicle for commercial purposes as the Forum did not have the jurisdiction to decide this complaint; complainant had no locus-standi to file this complaint and that the complaint was filed just to harass Ops, therefore, the same was liable to be dismissed with special costs of Rs. 50,000/-. On merits, purchase of the vehicle as per the details given in the complaint was admitted and that a sum of Rs. 8,77,000/- was financed to the complainant. Complainant was liable to repay Rs. 11,38,346/- in 46 installments. It was denied that the First Appeal No. 779 of 2015 4 complainant himself spent Rs. 2 lacs for the purchase of the body and other accessories. It was denied that the complainant had paid each and every instalment before the due date. However, it was admitted that the vehicle met with an accident and FIR No. 25/08 dated 11.2.2008 was recorded in P.S. Devli, District Tonk(Rajasthan). Complainant intentionally did not get the superdari of the vehicle, which was taken by Ops on 31.3.2009. It was denied that the complainant visited the Ops so many times to take the possession of the vehicle. However, it was admitted that Arbitrator was appointed, who passed the award dated 13.3.2009 for a sum of Rs. 9,74,774/- against the complainant. Its execution is pending before the District Judge. It was denied that Ops had no right to recover the amount from the complainant. It was denied that the complainant was entitled to the relief asked for in the complaint. Complaint was without merit, it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence letter Ex. C-1, summons Ex. C-2, award Ex. C-3, permit Ex. C-4, orders Exs. C-5 & 6, affidavit Ex. C-7. On the other hand, Ops had tendered into evidence bank statement Ex. Op- /R-1, affidavit Ex. Op-/R-2.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, learned District Forum held that it is a second complaint, which is not maintainable and that the complaint filed by the First Appeal No. 779 of 2015 5 complainant was barred by limitation and that the matter in dispute was already decided by the Arbitrator and equal efficacious remedy available to the complainant was to file objections against the said award and consumer complaint was not maintainable.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties.
9. The first point raised by the counsel for the appellant/complainant is that according to para 10 of the order, it has been observed that the second complaint is not maintainable. In case we go through para No. 2 of the order, it speaks that the first complaint was dismissed in default vide order dated 20.2.2013. Application for restoration was filed but it was dismissed on 8.5.2013, therefore, the first complaint was not decided on merits. A reference has been taken from the judgment of this Commission passed in Revision Petition No. 86 of 2013 "Ludhiana Beverages Pvt. Ltd. versus Javginder Singh and another", decided on 2.4.2014 wherein it was held that second complaint filed by the complainant on the same cause of action is not maintainable. However, counsel for the complainant has stated that in case the first complaint was not decided on merits then second complaint is maintainable and has referred the judgment of this Commission in First Appeal No. 1066 of 2015 "Jai Dev Singh Siag versus World Wide India Wood Co. Pvt. Ltd.", decided on 4.11.2015 after relying upon the judgment 2011(9) SCC-541 "Rajeev Hitendera Pathak & Ors. Vs. Achyut Kashinath Karekar & Others" in which previous judgment of the Hon'ble First Appeal No. 779 of 2015 6 Supreme Court reported in [AIR 2000 (SC) 941] "New India Assurance Company Limited Vs. R. Srinivasan" that it was not a good law and it was observed that interest of justice cannot be defeated by the rule of technicality and the same was further followed by the Hon'ble National Commission in (2015) (2) CLT 325 "M/s ABBE Associates Vs. Paradise Heights Chs Ltd. & Others", therefore, in case the first complaint was not decided on merits, the second complaint is maintainable. Certainly, the judgment passed by the Hon'ble Supreme Court is to be followed. The District Forum not referred the judgment of the Hon'ble Supreme Court. No contrary judgment was cited by the counsel for Ops, therefore, we are of the opinion that the findings recorded by the District Forum that second complaint is not maintainable are not correct findings. We are of the opinion that in case the first complaint was not decided on merits, the second complaint was maintainable.
10. The next point is whether the complaint filed by the complainant as on 8.7.2013 is within the limitation.
11. It has been argued by the counsel for the complainant that the District Forum has wrongly decided that the complaint was barred by limitation. The limitation was taken from the date the arbitration award was passed but it was ex-parte award and the appellant/complainant had come to know about the said award much later of the date of its passing. Therefore, it was wrongly decided by the District Forum that the complaint is barred by limitation.
12. The first complaint, which was dismissed in default has not been placed on the record to take it what was the date of cause of First Appeal No. 779 of 2015 7 action and how the point of limitation was dealt with. In case we go to the background of the case, complainant had taken loan in the year 2007 from Ops to the tune of Rs. 8,77,000/-, which was to be paid in 46 EMIs. Whereas in January 2008, the vehicle met with an accident and complainant did not get it on superdari, it was taken on superdari by Ops. Complainant as per version in the complaint had requested Ops to hand it over this vehicle to him but it was not given to him. After the vehicle met with an accident, complainant failed to pay the EMIs and ultimately, the matter was referred to the Arbitrator, who passed the award of Rs. 9,74,774/-. Copy of the award has been placed on the record as Ex. C-3, which shows that the notice was given to the complainant, despite service, he did not appear, therefore, he was proceeded ex-parte. In case the complainant did not appear before the Arbitrator then Arbitrator is to proceed with the proceedings. Even if the award is ex-parte, it has the same enforceability, in case ex-parte order was wrongly passed, he could have approached the Arbitrator and its execution is pending before the District Judge, Sangrur. In case the award was wrongly passed then he can have file objection under the Arbitration and Conciliation Act, 1996 but no such objection petition was filed on the record, therefore, the award passed by the Arbitrator has now become final. Therefore, his last cause of action was on 13.3.2009 whereas the complaint was filed in July 2013. Under Section 24A of the Act, the complaint was required to be filed within 2 years, therefore, the 7complaint filed by the complainant is barred by limitation and findings so recorded by the District Forum are correct findings. First Appeal No. 779 of 2015 8
13. The complaint filed by the complainant is also not maintainable from an other angle. Before the District Forum, Ops had taken an objection that the loan was taken for commercial purposes. EMI were not paid. The matter was referred to the Arbitrator, who passed the Award. The findings were recorded by the District Forum that once the award was passed in the arbitration proceedings then equal efficacious remedy available to the complainant was to file the objection against the said award and he did not have any cause of action to file parallel proceedings under the CP Act. No doubt that the District Forum has relied upon judgment of the Hon'ble State Commission titled as "Jitendra Kumar Dev (Since dead) through LRS versus Mangma Finance Corporation Ltd. and another" 2014(2) CPJ NC (576) wherein the Hon'ble National Commission has held that where the arbitration proceedings have been initiated and award has been passed much before the filing of the consumer complaint, then consumer complaint was not maintainable before the District Forum. Counsel for the complainant was unable to rebut this judgment by referring any contrary judgment. Therefore, once the award was passed then equal efficacious remedy available to the complainant was to file objections against the said award and counsel for the appellant was unable to reply how the proceedings under the Act are maintainable, once the Arbitration Award has been passed against the complainant.
14. Complaint is also not maintainable as the loan for purchase of the vehicle was for commercial purposes because the vehicle is a commercial vehicle. He was also having an other vehicle. First Appeal No. 779 of 2015 9 A copy of the order passed by the State Commission Ex. C-6 has been placed on the record, which is pertaining to an other truck of the complainant bearing Registration No. Pb13-Q-8731 and in para No. 3 of the complaint, he has stated that the vehicle was purchased to earn his livelihood whereas the explanation under Section 2(1)(d)(ii) of the Act says that the commercial transaction can be taken only in case it is to earn livelihood for self employment whereas the word self employment is missing from para No. 3 of the complaint. Therefore, the complainant also does not complete with the basic ingredients to be covered under the definition of 'consumer'.
15. Taking the case of the appellant/complainant from any angle, we are of the opinion that the order passed by the District Forum is justified. We do not see any illegality in the order passed by the District Forum, the same is hereby affirmed.
16. In view of the above discussion, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
17. The arguments in this appeal were heard on 31.5.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
June 02, 2016. (Harcharan Singh Guram)
as Member