Delivered on 24 /02/2021)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Appellant-  Mr. Yuvraj Kavduji Nimbone resident  of Nayakund, Taluka Paraseoni, District Nagpur has filed   the present  appeal  under Section 15 of the Consumer Protection Act, 1986, feeling aggrieved by the impugned judgment and  order dated 18/03/2015  passed by the learned Additional District Consumer Forum, Nagpur  in Consumer Complaint No. 62/2013 by which  the complaint filed by the  appellant /complainant – Mr. Yuvraj Kavduji Nimbone came to be dismissed. (Appellant hereinafter shall be referred as complainant and respondents as O.Ps. for the sake of convenience)

2.         Short facts leading to the filing of the present appeal may be narrated as under:-

            Complainant – Mr. Yuvraj Kavduji Nimbone claims to be resident of Nayakund, Taluka Paraseoni, District Nagpur and is  an agriculturist. Complainant  was  the  owner of one tractor  and trolley which was purchased by him in the year 2008 for a sum of Rs. 2,20,000/-.  The complainant was cultivating his field with the help of the said  old tractor and trolley. In the month of March-2009 one agent namely Jugraj Singh Verma working with  Magma Fincorp Limited  (O.P.No. 2) approached him at his house and gave a promise that  he will finance a new tractor.  The complainant was not willing  to purchase  a new tractor  but due to  promise given  by the agent  Jugraj Singh  Verma, the complainant  decided  to purchase  a new tractor  of Eicher Company after selling his  old tractor.  The complainant has alleged that the O.P.No. 1 agreed to finance a new tractor and trolley on behalf of the O.P.No. 2. The complainant therefore purchased the new tractor of Eicher Company bearing registration No. MH-40/L-2210 for a price of Rs. 5,50,000/-.  The complainant  has alleged  that  he sold his old tractor  and trolley for  Rs. 2,10,000/- and obtained  the finance of Rs. 3,40,000/- for  purchase of the  new tractor. The complainant has alleged that thereafter he also paid  three installments of Rs. 10,000/-, Rs. 3,000/- and Rs. 3,000/- and also assured to pay the installments regularly but the O.P.No. 2&3 namely Magma Fincorp Limited  did not hand over the papers of registration  at the time of handing over possession  of the  new tractor. Complainant has  come with the case that due to absence of papers of registration  he could not ply or make use of the  tractor and in this way the O.P. Nos. 2&3 had committed a deficiency in service. The complainant has also alleged that on 07/02/2010 the O.P. Nos. 2&3 also  forcibly  took away the tractor  with  the assistance  of some  anti social  elements  and thereby  also  the O.P. Nos. 2 & 3 had indulged  in deficiency  in service  amounting  to  unfair  trade practice. The complainant therefore, lodged the complaint under the Consumer Protection Act, 1986 before the learned Additional District Consumer Forum, Nagpur.

3.         O.P. No. 1 filed his written statement and has denied that  he had given  any  assurance  or promises  to the complainant. O.P. No. 1 has also denied   that he had taken any responsibility of getting   the new tractor registered. Responsibility of the registration of the new tractor was on the shoulders of the complainant.  The O.P. No. 1 has come to be falsely implicated in the said litigation and so he prayed  that  the complaint  may be dismissed.

4.         The O.P. Nos. 2&3 filed a common written statement, The O.P. Nos. 2&3 have admitted that the complainant had purchased one tractor and that the same  was duly financed. The O.P. Nos. 2&3 have taken a specific plea that though the complainant had purchased the tractor by availing the loan facility.  The complainant did not regularly pay the installments and had committed defaults despite repeated reminders   to make payment. The O.P. Nos. 2&3 have also taken  a plea that  the complainant  had also given  his consent  for  Arbitration  as per  the Arbitration  Clause  in the agreement  with the O.P. Nos. 2&3.  On 25/06/2010 after  completion  of Arbitration  Proceedings, Arbitration  Award  was also passed against the  complainant  and in favour of the  O.P. Nos. 2&3 and thereafter  execution  proceedings has also  started. As such  the O.P. Nos. 2&3 have  contended that  the  complaint  was itself  not  maintainable  in law and so same may  be dismissed.

5.         The learned Additional District Consumer Forum, Nagpur thereafter went through the evidence adduced by the complainant as well as O.P.No 1 to 3. The learned Additional District Consumer Forum, Nagpur also went through written notes of argument filed by the complainant as well as O.P. No. 1 to 3. The learned  Additional  District Consumer Forum, Nagpur after appreciating the  evidence on record  came to the conclusion  that the  present  complaint  was barred  by limitation. The learned  Additional  District Consumer Forum, Nagpur also  came to the conclusion  that  the complaint  was not tenable  in law in view of the  facts that  Arbitration Proceedings  had been conducted  between  the parties  and thereafter Arbitration  Award had also  come to be passed and so the complaint  was not tenable  in law. The learned Additional District Consumer Forum, Nagpur therefore dismissed the complaint filed by the complainant by judgment and order dated 18/03/2015.  Against this judgment and order dated 18/03/2021 passed by the learned Additional District Consumer Forum, Nagpur, the present appellant/complainant has come up in appeal.

6.         We have heard Mr. Bhedre, learned advocate for the appellant, Mr. Rahate, learned advocate for the respondent No. 1 and Mr. Patait, learned advocate for the respondent Nos. 2&3.We have  also gone through  the record and proceedings  of the Consumer  Complaint  copies of which  have been placed on record. On the basis of the facts stated above the following point arises for our determination and we are given   our finding recorded  thereon and reasons  to follow. 

Reasons for finding

7.         Before dealing with the contentions advanced by Mr. Bhedre, learned advocate for the appellant as well as respondents it would be useful to deal with  certain admitted facts.

8.         It is not in dispute that the appellant /complainant – Yuvraj Nimbone had purchased the tractor bearing registration No. MH-40/L-2210 of Eicher Company for price of Rs. 5,50,000/- from the O.P. Nos. 2&3 and same was also duly financed.  There is also no serious  dispute  that the possession  of the tractor  also came  to be handed over to complainant  but subsequently  the tractor  came to be  repossessed  by the O.P. Nos. 2&3.

9.         At the outset  Mr. Bhedre, learned advocate for the appellant /complainant  has submitted  that the  learned  Additional  District Consumer Forum, Nagpur has committed  error  in holding  that the complaint was  barred  by  limitation. Mr. Bhedre, learned advocate  has taken a plea that though  the complainant  had purchased  the tractor  in the year 2009, the complainant  was paying  the installments but the O.P. Nos. 2&3 had not handed  over  the registration  papers due to  which  the complainant  was unable to make use of the tractor . Mr. Bhedre, learned advocate has further submitted that the O.P. Nos. 2&3 had taken forcible possession of the tractor on 07/02/2010 and so the complaint was very much within the period of limitation.  In this connection  Mr. Bhedre, learned advocate  has made  an attempt  to argue  that the cause of action  was continuous and  therefore the complaint  was within  the  limitation.

10.       Mr. Rahate, learned advocate  appearing for the  O.P. No. 1/respondent No. 1 has countered  this submission  by arguing  that  though  the complainant  claims  that  forcible  possession  of the tractor  was taken  on 07/02/2010, yet  no documents  are on record  to support the same and even  the complainant  has not filed  on record  any  copy of FIR to show that  report was lodged  in the Police Station regarding  forcible  dispossession. We have carefully gone through the record and we find that no such documents like copy of FIR or other documents are placed on record. Furthermore, the learned advocate for the O.P.Nos. 2&3/respondent Nos. 2&3 has pointed out that the complaint was filed on 19/03/2013 and so the same was beyond the period of two years. Further the learned advocate for the O.P.Nos. 2&3/respondent Nos. 2&3 has pointed out that the complainant   was not regular in paying installments and had paid only three installments.  It clearly shows that the complainant   was a defaulter in the eyes of law. We therefore find that the learned Additional District Consumer Forum, Nagpur has rightly given a finding that the complaint was barred by limitation.  Even otherwise there is no material to hold that the cause of action in this case can be termed as continuous.

11.       Learned  advocate  for the O.P. Nos. 1 to3 / respondent Nos. 1 to 3 have also taken  a specific  plea that  the complaint  was untenable  in law since  in the present  case  Arbitration  Proceedings were held   and Arbitration  Award  had also  come to be passed. On this aspect Mr. Patait, learned advocate for the O.P. Nos. 2 &3 /respondent Nos. 2 & 3 has also  relied upon  one judgment  of Hon’ble National Commission in the case of    The Installment Supply Ltd. Vs. Kangra Ex-Serviceman Transport Co., reported in  2006(3) CPR 339 (NC). We have gone through this judgment. In that  case also Arbitration  Award  had  came to be  passed before  the complaint  was filed and so it was observed  by the  Hon’ble National Commission that  Arbitration  Award  will govern  the dispute  between  the parties and same would   prevail. Here in the present  case  before us also  it is clear that  the  Arbitration  Award  was already  passed and  so observations  made by the  Hon’ble  National Commission in the case  of  The Installment Supply Ltd. Vs. Kangra Ex-Serviceman Transport Co. will squarely  apply to the facts  of the present  case.  Mr. Patait, learned advocate for the O.P. Nos. 2&3/respondent Nos. 2&3 has also relied upon other judgments but we do not find it necessary   to deal with the same as they have observed in the same manner. We find that the learned Additional District Consumer Forum, Nagpur has also dealt with this aspect and so we do not find any reason to interfere with the said findings.

12.       In the light  of aforesaid  discussion, we are unable to accept  the contentions of the  learned advocate for the appellant  that the  learned Additional  District Consumer Forum, Nagpur has committed any error  in giving  findings. As such we hold that the appeal is devoid of substance and so we pass the following order.

ORDER

i.          Appeal is hereby dismissed. 

ii.          Appellant and respondent shall bear their own costs.

iii.         Copy of order be furnished to both the parties free of cost.