Heard learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The brief fact of the case of the complainant, is that the complainant had purchased a Maruti Omini vehicle bearing Regd. No.OR-15-K-4383 on being financed by the OP for an amount of Rs.1,91,000/- with a condition to repay same in 48 monthly installments @ Rs.5225/-. It is alleged inter-alia that the complainant was regularly paying the installments and last installment was paid in February,2008. It is alleged by the complainant that on 15.04.2008 the OP No.2 forcibly took away the vehicle from the possession of the complainant without following the due procedure of law. There is no prior notice for repossession. Therefore, the complainant approached the OP No.2 but all his attempts remain in vain. Therefore, the complainant claiming the compensation and cost. Hence, the complaint was filed.
4. The OP filed the written version stating that the complainant has borrowed Rs.1,91,000/- from the OP to purchase a Maruti Omini vehicle. It is admitted fact by the OP that there was down payment of Rs.48,696/- by the complainant but rest of the payment would be paid by the complainant alongwith interest on forty eight equal monthly installment i.e. Rs.5225/- per month. The OP further averred that there was outstanding installment due was of Rs.26,350/- and despite repeated requests, the complainant deliberately failed to clear up the outstanding loan dues. Therefore, the OP repossessed the vehicle in accordance with the agreement made between the parties. After repossession, the OP also issued notice to pay the amount but the complainant did not turn up. Therefore, on 12.05.2008 the OP sold away the vehicle to one Pawan Kumar Agrawal. Therefore, there is no deficiency in service on the part of the OP.
.5. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“ The Opposite Parties are directed jointly and severally to pay a sum of Rs.1,32,296/- (Rupees one lakh thirty two thousand two hundred ninety six ) only the total installment amount received from the complainant and also to pay Rs.20,000/- (Rupees twenty thousand) only towards damages including cost to the complainant within 30(thirty) days from the date of order, failing which, the total amount will carry 12% (twelve percent) interest per annum till the date of payment.
Complainant disposed of accordingly.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him, the complainant had incurred loan but defaulted in payment of the installments. According to the agreement, they have repossessed the vehicle. Besides he submitted that learned District Forum lacks territorial jurisdiction to entertain the complaint and to decide same. Therefore, he submitted that complaint is not maintainable due to lack of jurisdiction. He relied on the decision reported in Hon’ble Supreme Court of India in AIR 2010 SCW-198,Civil Appeal No. 1560 of 2004 disposed of on 20.10.2009 M/s. Sonic Surgical-Vrs- National Insurance Co.Ltd.
So, he submitted to set-aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that OP has not taken any plea before the learned District Forum as to lack of territorial jurisdiction of learned District Forum,Bargarh and by the by he submitted that the vehicle was repossessed against the procedure as enshrined in the agreement with regard to jurisdiction. He relied on the decision AIR 199,1962 SCR (2) 747 Seth Hiralal Patni-Vrs- Sri Kali Nath in support of his submission.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. It is admitted fact that the complainant had purchased the vehicle by incurring loan of Rs.1,91,000/- from the OP. It is also not in dispute that the vehicle was repossessed by the OP as the complainant did not pay the installments. It is also not in dispute that the OP have sold away the vehicle to Pawan Kumar Agrawal. Now the only question arises in this case about the maintainability and thereafter the merit of the case.
10. With regard to maintainability of the case concerned, it is alleged by OP that none of the cause of action arose within territorial jurisdiction of Bargarh. It is also admitted fact that the vehicle was repossessed while the vehicle was going from village Tamini under the District Sonepur to VSS Medical College,Burla on 05.04.2008 near Barpali Railway Station check gate the vehicle was repossessed . The repossession note of the vehicle shows that the place of repossession is in Bolangir. There is submission and counter submission with regard to place of repossession. When the repossession note shown it is under Bolangir and it is not specifically refuted in the written version that Barpali Railway Station check gate is not coming as per the place of repossession as mentioned in the repossession memo. Therefore, we are of the view that the place of seizure of the vehicle is at Bolangir. Be that as it may, the question involves about repossession in the year 2008 raised by the OP in the written version. After going through the pleadings the question relating to jurisdiction has been raised, it is coming under the district of Bolangir.
11. Be that as it may, the next question arises that whether the complaint is maintainable before the learned District Forum,Bargarh. Learned counsel for the appellant submitted that relying the decision M/s.Sonic Surgical(Supra) where Their Lordship held that “branch office” in the amended Section-17(2) would mean that branch office where the cause of action has arisen. With due regard to decision it is to be seen plea of cause of action arose and main office or branch office of OP is branch or nt. So, Section-11 of the Act would be applied accordingly. In the instant case the cause of action arose at Bolangir and none of branch office or main office of OP is party to this case. Thus, U/S-11 of the Act complaint is not maintainable. However, in Seth Hiralal Patni case it is clearly held that allegation as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. This case law does not relates to Section-11 of the Act. But this decision is related to jurisdiction of Civil Court. So, such decision is not applicable.
Therefore, we do not want to go further to try the merit of the case. In view of above discussion, the impugned order is set-aside and the appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
