H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 226/2007

Date of Decision 4.5.2009.

Sh. Rafi Mohammad S/o Sh. Fakiru, VPO Batheri,

Tehsil Padhar, Distt. Mandi, HP.

……..Appellant.

Versus



1. Managing Director Magma Leasing Ltd. Magma

House 24 Park Street, Calcutta.,



2. Regional Manager, Magma Leasing Ltd., SCO 317-18,

Sector 35-B, Chandigarh, UT.,



3. Sh. Jai Prakash Bhardwaj, Branch Manager, Magma Leasing

Ltd., Branch Officer Gutkar, Near Competent Auto Mobile,

VPO Gutkar, Tehsil Sadar, Distt. Mandi, HP.,



4. The Motor Registration & Licensing Authority

Sadar, Distt. Mandi, HP.

…….Respondents.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.



For the Appellant. Mr. L.S. Mehta, Advocate vice counsel

Mr. R.L. Chaudhary, Advocate.



For the Respondents 1 to 3 Mrs. Anu Tuli, Advocate.



For the Respondent No.4. Mr. Anoop Sharma, ADA.



O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



Admitted facts giving rise to this appeal are, that vehicle bearing registration No. HP-33B-0215 was financed by OP Nos. 1 to 3 in the sum of Rs. 5,72,013/-. This amount was payable in equated 47 monthly installments of Rs. 13,800/- by the appellant. These installments were worked out after including interest etc. At the time of hearing learned counsel for the parties were not at variance that installments due from 1.8.2004 to May, 2005 were regularly paid, except the instalment that was payable in March, 2005.

2. This vehicle was taken over by respondents No. 1 to 3 on 24.7.2005 by use of force according to Mr. Mehta learned counsel for the appellant. This stand on behalf of the appellant was seriously contested by Mrs. Anu Tuli learned counsel for respondents No. 1 to 3. According to her vehicle was not taken over from the appellant by her clients. Rather the appellant had already transferred the financed vehicle under an agreement to one Sh. Raj Ali for a sale consideration of Rs. 3 lacs from whom it was taken over when default persisted. Further according to Mrs. Tuli before taking over the vehicle, her clients had issued notice Annexure R-4. As per this notice dated 2.7.2005, defaulted installments were in the sum of Rs. 39,700/-. Appellant was further informed vide notice, copy whereof is Annexure R-5 dated 26.12.2005 that total outstanding amount due and payable by him was Rs. 4,93,540/-. There is nothing on record to suggest that any of these notices were ever acknowledge/replied to by the appellant. Though Mr. Mehta submitted that after vehicle had taken over by respondents No. 1 to 3, his client had deposited Rs. 30,000/- in cash, but was not issued any receipt. Therefore according to him non return of vehicle and its sale thereafter is not only illegal and arbitrary but it also deprived his client of his livelihood. These actions of the respondents No. 1 to 3 tantamount to both deficiency in service as well as unfair trade practice on their part. There is nothing on record to even remotely establish the payment of Rs. 30,000/- in cash as alleged by the appellant, therefore the plea of Mr. Mehta is hereby rejected.

3. Faced with this situation Mr. Mehta drew our attention to Annexure F-6 whereby he had intimated respondent No.4 not to issue duplicate copy of registration certificate of vehicle Swaraj Mazda which is subject matter of this appeal on 7th January, 2006. Thus by having issued the duplicate registration certificate as also having transferred the vehicle according to Mr. Mehta, respondent No.4 acted illegally and contrary to instructions of his client.

4. In this behalf Ld. ADA pointed out that on receipt form Nos. 29, 30 and 35, as well as affidavit dated 7.1.2006 of the appellant Annexure D, action of his client cannot be questioned. He also referred to the affidavit of the transferee Raj Kumar, copy Annexure E. On the basis of these documents, we find no infirmity, so far action of respondent No.4 in transferring the vehicle to Raj Kumar is concerned. These documents are at pages 81 to 85 of the complaint file. It may be noted here that except for Form No. 35, all other documents are not only signed, but are also dated. Only form No. 35 is undated.

5. In these circumstances attempt made on behalf of the appellant to challenge Annexure C, i.e. Form No. 35 is nothing, but a futile effort. Copy of the affidavit of appellant is there. This is duly authenticated by the Notary Public, alongwith that of the transferee Raj Kumar. Affidavit Annexure D was also questioned by Mr. Mehta as according to him his client had never gone to the Notary Public to get it attested. Looking to the provisions of Notaries Act, this plea is being noted simply to be rejected.

6. Submission of Mr. Mehta that the vehicle was taken over by use of force also does not hold good in the face of agreement to sell copy Annexure R-3 between his client and one Raj Ali. Now the dispute is, that as to from whom the vehicle was taken over. Per Mr. Mehta, it was from his client, whereas per learned counsel for the respondents No.1 to 3 it was taken over from the said Raj Ali, to whom it had been delivered by the appellant in terms of Annexure R-3. We uphold the plea of Mrs. Anu Tuli in this behalf.

7. No other point is urged.

In the totality of the facts and circumstances of this case, we are of the view that the appellant can always take such civil action if any open to him under law for redressal of his grievance, and in such a situation the dismissal of his complaint, as well as this appeal will not come his way. We further direct that in case the appellant approaches the civil court by or before 15th September, 2009, in such a situation respondents No. 1 to 3 will be precluded from raising the plea of limitation, and appellant will be entitled to claim benefit under Section 14 of the Limitation Act, 1963 as he was bonafide prosecuting the case before the Foras under the Consumer Protection Act, 1986. Appeal is dismissed subject to this direction.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

4th May, 2009 (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.