State Consumer Disputes Redressal Commission
Babu Ram Narang vs Sukhjinderpal on 13 March, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1030 of 2010.
Date of Institution: 10.06.2010.
Date of Decision: 13.03.2014.
Babu Ram Narang S/o Sh. Kundan Lal, R/o Nagpal Nagri, Gali No.3,
Malout, District Muktsar.
.....Appellant.
Versus
Sukhjinderpal S/o Sh. Kundan Lal, R/o Village Mohala, Tehsil Malout,
District Muktsar.
...Respondent.
First Appeal against the order dated
21.05.2010 passed by the District
Consumer Disputes Redressal Forum,
Muktsar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. Anoop Singla, Advocate for Sh. R.K. Girdhar, Advocate, counsel for the appellant.
None for the respondent.
---------------------------------------- INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Babu Ram Narang, appellant/OP-1 (In short "the appellant") has filed this appeal against the order dated 21.05.2010 passed by the learned District Consumer Disputes Redressal Forum, Muktsar (in short "the District Forum").First Appeal No.1030 of 2010 2
2. Facts in brief are that Sh. Sukhjinderpal, respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and OP-2 (not made party in the appeal), pleading that he took three cars time to time which were financed by the appellant. The first car was Esteem Maruti which was purchased on 05.06.2005 and the total loan of that car was Rs.40,550/-. The said loan amount was paid by making payment of Rs.2,756/- monthly and the installment started w.e.f. 01.06.2005. The appellant after receiving the entire payment gave NOC and wrote 'Nil' in his diary. The said car was having registration No.DL-4-CC-4542, but now the said car is in possession of the appellant.
3. The other car bearing registration No.PB-15-2340 was also purchased and 15 installments of Rs.1,900/- were to be paid and the respondent paid 13 installments. The third car was having registration No.DL-2672 and the total installments were 30. All the cars and the documents are in possession of the appellant. The respondent has paid all the installments
4. It was prayed that the appellant may be directed to pay Rs.3.00 lacs with interest @ 12% and to pay Rs.30,000/- as compensation for harassment and mental tension and Rs.10,000/- as litigation expenses.
5. In the written version filed on behalf of the appellant, preliminary objections were taken that the complaint is not maintainable in the present form and the respondent is not a consumer. The District Forum has no jurisdiction. The respondent has not approached the District Forum with clean hands and has suppressed the material facts. The present complaint is a counter-blast to the complaint u/s 138 of the First Appeal No.1030 of 2010 3 Negotiable Instruments Act filed by the appellant which is pending in the court of SDJM, Malout. The appellant is not in possession of the cars. The complaint is vague and baseless and is liable to be dismissed. The complaint is not within limitation.
6. On merits, similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the reply of the appellant is evasive. The whole story/grievance of the respondent is incorporated in Para-2 of the complaint. In reply to Para-2 of the complaint, there is no specific stand of the appellant. Nowhere in the reply, it is mentioned as to how much money the appellant advanced and how much was repaid. The appellant is bound by the law to answer the allegations specifically and not generally. The act and conduct of the appellant reflects in the reply itself and in the eyes of law, each Para of the complaint stands admitted by implication. Keeping in view the above discussion, the appellant was directed to give abovementioned three cars alongwith documents within one week from the receipt of the certified copy of the order failing which he shall be liable to pay Rs.1,000/- per day as compensation to the respondent from the date of the order till the delivery of the cars and documents.
9. Aggrieved by the impugned order dated 21.05.2010, the appellant has come up in appeal.
First Appeal No.1030 of 2010 4
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
11. Neither the counsel for the respondent nor anybody else appeared at the time of arguments.
12. The appeal was filed on the grounds that the order passed by the District Forum is illegal and arbitrary. The District Forum has not recorded any finding that the appellant is in possession of the cars in question. The respondent has failed to prove on record that any cars were taken into possession. The averments made in the complaint and affidavit are vague and unbelievable. The respondent has alleged in the complaint that loan of cars in question was advanced and the installments were paid by him w.e.f. the year 2005 to 2007, whereas the complaint was filed on 08.09.2009 i.e. after more than two years. There was no complaint either to the police or to any other authority with regard to taking of the cars by the appellant from the respondent. No date of taking possession is mentioned. The District Forum has allowed the complaint only on the ground that each and every averment of the complaint was not denied, but the appellant has specifically denied all the averments and has taken the preliminary objections. The District Forum has failed to appreciate that the present complaint was a counterblast to the complaint U/s 138 of the Negotiable Instruments Act. The appellant filed a complaint in the court of SDJM, Malout on 23.12.2008 and the present complaint was filed by the respondent on 08.09.2009 by concocting the story. The order passed by the District Forum is based on conjectures and surmises and is liable to be set aside.
First Appeal No.1030 of 2010 5
13. Learned counsel for the appellant has argued on the similar lines.
14. We have considered the version/submissions of the appellant and have carefully monitored the entire record.
15. The order passed by the District Forum, on the very outset, is based on conjectures and surmises and there is no evidence to substantiate the allegations made by the respondent. The respondent has made the averments about three cars and thereof making payment, but no registration certificate or any agreement of loan has been placed on record, except the statement of account of Oriental Bank of Commerce Ex.C-2 which is not related in any manner with the complaint. The entries Ex.C-5 to Ex.C-15 are also not clear as to regarding what these entries have been made. Who has written these entries and what was the purpose and who signed these entries, is also not clear. The appellant has placed on record the certified copy of the complaint U/s 138 of the Negotiable Instruments Act Ex.OP-2 filed in the court of SDJM, Malout against the respondent for dishonour of the cheque. The certified copy of the cheque for Rs.60,000/- is Ex.OP-3.
16. The complaint was regarding purchase of the cars and the repayment of the loan amount in installments and of repossessing those cars by the appellant. There is not an iota of evidence that any cars were financed or purchased or any loan amount was paid and thereafter, the same were repossessed. The order passed by the District Forum is not only based on conjectures and surmises, but is also baseless and palpably wrong and has no head or tale. The averments were denied specifically and preliminary objections were taken, but still the District Forum has taken it as admission. The respondent was to prove the averments and the purchase of cars, First Appeal No.1030 of 2010 6 taking of loan and repossession of cars cannot be presumed just on the basis of reply of the appellant, although there were denials and plea of counterblast was taken. The impugned order is not sustainable and the same is liable to be set aside.
17. Sequel to the above discussion, the appeal is accepted and the impugned order under appeal dated 21.05.2010 passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed, being frivolous with special costs of Rs.10,000/-, payable by the respondent to the appellant within 45 days of receipt of copy of the order.
18. The arguments in this appeal were heard on 06.03.2014 and the order was reserved. Now the order be communicated to the parties.
19. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member March 13, 2014.
(Gurmeet S)