Haryana

Karnal

CC/192/2019

Krishan Lal - Complainant(s)

Versus

True Value Karnal Motors Private Limited - Opp.Party(s)

Kanavdeep Singh

06 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 192 of 2019

                                                        Date of instt.09.04.2019

                                                        Date of Decision:06.05.2022

 

Krishan Lal son of Shri Bhagwan Dass, resident of village Kunjpura, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     Karnal Motors Pvt. Ltd. G.T. Road, Karnal.

2.     Balkar Singh son of Shri Surjan Singh, resident of House no.698/D, Sanjay Nagar Barsat, Karnal.

3.     Vehicle Registration Authority Gharaunda, Karnal.

4.     Vehicle Registration Authority, Karnal.

5.     Cholamandlam Finance Co. Sector-1, Karnal.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member.

      Dr. Rekha Chaudhary…..Member

           

 Argued by: Shri Rajeev Sharma, counsel for complainant.   

                    Shri Vishal Kundi, counsel for OP no.1.

                    OPs no.2 and 4 exparte.

                    OP no.3 exparte.

                    Shri Dheeaj Sacheva, counsel for OP no.5.

 

                     (Jaswant Singh President)

ORDER:   

                

                    The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant purchased a second hand Maruti Swift VXI car bearing no.HR-91/2681 for Rs.5,10,000/- from the OP no.1 on 15.11.2017 who deals with certified and verified second hand Maruti Cars. The abovesaid amount was paid to the OP no.1 by way of Rs.3,11,000/- in cash and Rs.2,00,000/-by taking loan from Mahindra and Mahindra Finance Company, Karnal. The delivery of the car was taken on 15.11.2017 from the premises of the OP no.1 on the assurance of the OP no.1 that there is no loan or any liability due on the above said car. The official/s of the OP no.1 has also shown and given all the documents (RC, insurance policy), where there was no hypothecation mentioned on the said documents. The OP also assured that they will get all the documents related to the abovesaid car transferred in the name of complainant. Lateran, OP no.1 has provided transferred/New RC and transferred/New Insurance to complainant after getting NOC issued from the Registering Authority, Gharaunda. In the month of January, 2019 some officials of the Cholamandlam Finance Company have informed the complainant that the abovesaid car is financed with their company and Rs.4,80,000/- is pending against the said vehicle against the first owner of the vehicle. Complainant got shocked after hearing the above said facts and he straightway went to the OP no.1 to enquire about the abovesaid facts, where the OP no.1 again assured the complainant by saying that they have already checked all the documents before buying and selling the second had car/vehicle. It is further averred that on 04.02.2019, 4-5 persons belonging to the Cholamandlam company alongwith police officials from Kunjpura Thana came to the house of the complainant and snatched the abovesaid car from the complainant illegally and forcibly. The complainant informed the OP no.1 regarding snatching of the car by the officials of the Cholamandlam Finance Company. Thereafter, complainant lodged an FIR no.0069 dated 18.03.2019, under section 406/420 IPC with the Police Station Kunjpura, Karnal. Till date the complainant has not got his car back from the possession of the Cholamandlam Finance Company from the last more than 2 months. The complainant is struggling and putting every effort to get the said car back but no fruitful result has come out. The complainant approached to the OP no.1 so many times and requested for the refund of the amount paid to the OP no.1 for the purchase of abovesaid car, but OP no.1 did not pay any heed to the request of the complainant. It is further averred that complainant was giving regular installments to Mahindra and Mahindra Finance Company till 15.03.2019. In this way there is deficiency in service and unfair trade practice on the part of the OP no.1. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that no case of deficiency in service is made out against the OP. Criminal proceedings are already pending against the suspected accused. Complicated questions of law are involved in the whole dispute which would require lengthy trial and evidence. The matter on hand cannot be decided by the summary procedure. It is further pleaded that only allegation against the OP in the whole complaint is that they have not verified regarding the previous outstanding loan on the vehicle in question. However, the OP has done due diligence even before purchasing the car from the previous owner and also at the time of selling the same to the complainant as is evident from the fact that the registration certificate has been duly transferred in the name of the complainant. Had there been any loan outstanding or any hypothecation registered on the registration certificate of the previous owner, the same could not have been transferred to the complainant and he would not have been able to avail further loan on the same by a different finance company. It is further pleaded that it is admitted fact that the complainant had purchased the pre owned car through the OP. It is also admitted that he was given the registration certificate of the vehicle as per law. So that even hypothecation from Mahindra and Mahindra finance was incorporated in this certificate by the concerned registration authority. It is also the case of the complainant that he enjoyed the benefit of the vehicle in question for last almost two years till the discovery of the dispute of non-payment of the loan amount by previous owner, Mr. Balkar Singh to the previous finance company Cholamandlam Finance Company. It is pertinent to mention here that the OP cannot be held liable for this dispute in any way as he had no knowledge of the same and it was not possible to ascertain the fraud committed by the previous owner as the registration certificate produced by him at the time of sale of the vehicle in question was not having any hypothecation registered on it. This fact was also got verified from the previous registration authority of Gharaunda and they have even issued the NOC (No Objection Certificate) in this regard. Thus, the OP has thoroughly done his duty and fulfilled his responsibility as a broker to verify the actual and factual position of the matter in hand at the time of the purchase of the vehicle from the previous owner and sale of the vehicle to the complainant. It is further pleaded that the complainant has given the custody of the vehicle in question by the Criminal Court on superdari and he is enjoying full unhindered benefit of the same. This fact has been concealed by the complainant although he has admitted having lodged an FIR against the previous finance company, its officials and the previous owner Mr. Balkar Singh. It is further pleaded that complainant and previous owner have furnished respective affidavits at the time of transfer of registration certificate stating that they shall be responsible for any dispute or court proceeding relating to the vehicle before and after the sale of the same. Thus, the OP cannot be held responsible/liable for the same. It is further pleaded that the vehicle in question has been purchased by the complainant from the previous owner Balkar Singh and not from the OP. The payment made by the complainant to the OP was transferred to the previous owner Mr. Balkar Singh. Apart from that the charges for transfer of RC, insurance and service of vehicle etc. were also included in this amount. The RC of the vehicle in question was transferred from the previous owner directly in the name of the complainant. The OP has only played the role of a broker in the whole deal. As per the respective affidavits furnished by them, they both are liable for any court case, challan, fraud etc. relating to the vehicle before and after the sale respectively. The OP has no legal liability for the dispute in hand. There is no deficiency in service and unfair trade practice on the part of the OP no.1. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             OP no.3 filed its written version raising preliminary objections with regard to maintainability; mis-joinder and non-joinder of parties; cause of action and concealment of true and material facts. On merits, it is pleaded that the registered owner of the car bearing registration no.HR-91-2681 namely Balkar Singh son of Shri Surjan Singh submitted application form 35 duly annexed with NOC issued by the OP no.5 to the office of OP no.3 for cancellation/termination of hypothecation on the car in question. The NOC issued by OP no.5 has been confirmed by the OP no.3, vide confirmation letter. After getting the implied confirmation from OP no.5, OP no.3 had allowed the cancellation of hypothecation on the car in question. No negligence has been exercised on the part of the OP no.3 while allowing the cancellation of hypothecation on the car in question and also OP no.3 has discharged his official duties with due diligence. It is further pleaded that a fresh Registration Certificate without hypothecation has been issued in the name of Balker Singh by the OP no.3. It is further pleaded that Balkar Singh has sold the car in question to the complainant and complainant has moved an application to get the NOC for transferring the R.C. of car in question from Gharaunda to Karnal, the same was not objected by the seller Balkar Singh. On the basis of record available with the OP, NOC has been issued to the complainant. There is no negligence has been exercised on the part of the OP no.3 while issuing the NOC to the complainant. It is further pleaded that complainant has got registered FIR no.69 dated 18.03.2019 Under Section 406, 420 IPC, in Police Station Kunjpura, District Karnal and during the investigation of FIR, investigating agency had collected the original record of the car in question, vide application dated 01.04.2019. It is pertinent to mention here that the aforesaid FIR is still pending and is under investigation. It is pertinent to mention here that complainant has also filed cases before the Courts of Shri Dharampal learned Civil Judge, Junior Division, Karnal as well as in the court of Shri Randhir Kumar Dogra, learned Additional District and Sessions Judge, Karnal and the same were dismissed as withdrawn on 02.07.2019 and 23.05.2019 respectively. There is no deficiency in service on the part of the OP no.3 and prayed for dismissal of the complaint qua OP no.3.

4.             OPs no. 2 and 4 did not appear despite service and proceeded against exparte, vide order dated 17.09.2019 of this Commission.

5.             OP no.5 in its written version stated that present complaint is not maintainable in the present form. The dispute raised by the complainant in the present complaint is manifestly outside the purview of the said Act as the complainant is not a consumer as provided under the Consumer Protection Act. The proceedings initiated by the complainant under the Act are non-est, null and void and without jurisdiction. The relationship between the complainant and the OP is that of parties to the contract and the dispute regarding the same does not come under the provision of the Consumer Protection Act. As such, the complainant does not fall within the definition of ‘consumer’ as envisaged under the C.P. Act. It is further pleaded that Balkar Singh and his wife Ranjeet Kaur approached to the OP for availing loan facility for purchase of vehicle Swift VXI Registration no.HR91-3681 and on the application made by both the applicant an amount of Rs.4,80,000/- was financed to them and a written agreement bearing no.XVFPKAL00002092614 executed on 31.08.2017 and tenure was for 47 months and monthly installment is Rs.13448/- each. The last installment was to be paid on 28.07.2021 from Cholamandlam Finance and using the same for his own use, and the hypothecation was duly entered. The relationship between borrower/co-borrower/ guarantor is governed by the written contract entered in between the borrower/co-borrower/guarantor and M/s Cholamandlam Finance Ltd. There are various terms and condition embodied in the written contract. The matter in issue is with respect to contractual obligation of both the parties which cannot be heard arbitrarily. Further, the signed written contract includes a clause Arbitration and accordingly any dispute arose between parties to the contract would be resolved by the sole arbitrator of the company and hence this Commission has no jurisdiction to entertain the present complaint. It is further pleaded that complainant is not consumer and the controversy involved in the complaint is not a consumer dispute. In the present case the vehicle is commercial in nature and complainant has nowhere mentioned that the vehicle is being used to earn his livelihood. It is further pleaded that borrower/co-borrower Balkar and his wife Ranjeet Kaur did not adhere the repayment schedule of the loan agreement executed by the Borrower/co-borrower Balkar and his wife, whereby as per the statement of account maintained by the complainant in ordinary course of its business, the borrower/co-borrower Balkar and his wife only paid two installments and as per the statement dated 09.02.2019, Rs.1,96,121/- was outstanding against the borrower/co-borrower towards the installments plus future amount of Rs.4,03,440/- was pending. It is further pleaded that as per written agreement executed between the parties and as per clause no.29 of the agreement pertains to an arbitration clause and due to the non payment of the installments by the borrower/co-borrower, the OP company filed a claim petition before the Sole Arbitrator appointed by the company at Chennai and vide order dated 11.07.2017, under section 17 of the Arbitration Act, the Arbitrator has passed an interim order to take the possession of the vehicle and Rajesh Kumar was appointed as a receiver. It is further pleaded that on 04.02.2019, the OP company moved an application before the S.P. Karnal through Rajesh Kumar alongwith copy of order dated 11.07.2018 (interim order passed by the Arbitrator) and same was marked to the Police Station, Kunjpura. On such application, on 09.02.2019, the police officer from Police Station, Kunjpura has taken the possession of the vehicle from accused no.3 Krishan and after verifying the copy of order and the agreement, the police official of P.S. Kunjpura handed over the vehicle to the OP company, vide DDR no.15 dated 09.02.2019.On 16.02.2019, the OP company received summons from the court of Shri Dharampal, learned JMIC, Karnal and the complainant was summoned in civil suit no.345 of 2019 for 18.02.2019. After appearance before the court, the matter was fixed for filing reply for 03.04.2019.  The OP company was astonished to know the fact that the vehicle which was financed by the OP to accused no.1 and 2, where the hypothecation was also entered has been sold to accused no.3 through accused no.4 and on verifying the facts, OP came to know that accused no.1 and 2 in connivance with accused no.3 and 4 got the hypothecation of the OP cancelled by producing the fake and fabricated NOC. Though, no NOC was ever issued by the OP and still and amount of Rs.5,99,561/- is outstanding against the accused no.1 and 2 as per statement of account dated 09.02.2019. After knowing the facts, OP moved a complaint before the S.P. Karnal, against the accused no.1 and 2, which was received in the office of S.P. Karnal, vide registered ID no.116672 dated 11.02.2019. OP came to know that Balker, Krishan, Ranjeet Kaur and Karnal Motors hatched a criminal conspiracy against the OP and without clearing the outstanding amount under the loan agreement and without obtaining the NOC. It is further pleaded that OP never issued any NOC or form 35 to the borrower and a sum of Rs.5,99,561/- as on 19.02.2019 stands due including penal interest plus future balance under the loan account. It is further pleaded that till the day from when the OP came to know about the selling of financed vehicle by the accused, OP by all means had requested the accused to clear the dues but accused persons had flatly refused to do so and also passed threats that they had sold the vehicle to defect the legitimate rights of the OP. It is further pleaded that by committing the above said offence Balkar, Krishan, Ranjeet Kaur and Karnal Motors have cheated the OP company and sold the above said vehicle without repayment of the loan amount and the accused have also hatched a criminal conspiracy and have committed the offence punishable under section 420 of IPC. Thereafter, OP company approached to the Hon’ble court and from the order of the court of Shri Rajat Verma Ld. JMIC, Karnal ordered to lodge an FIR against Balkar, Krishan, Rajneet Kaur and Karnal Motors and FIR no.206 dated 04.04.2019 under section 120-B, 420, 467, 468, 471, 506 was lodged at Police Station Gharaunda. Hence, prayed for dismissal of the complaint with costs.

6.             Parties then led their respective evidence.

7.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of application under RTI Act regarding information of vehicle in question Ex.C1, copy of FIR Ex.C2, copy of RC Ex.C3, copy of delivery receipt of Karnal Motors Ex.C4, copy of insurance policy Ex.C5, copy of certificate cum policy schedule Ex.C6, copy of loan detail and statement Ex.C7, copy of Aadhar card of complainant Ex.C8, copy of payment detail of Karnal Motors Ex.C9 and closed the evidence on 31.01.2020 by suffering separate statement.

8.             On the other hand, learned counsel for OP no.1 has tendered into evidence affidavit of P.K.Jha, Manager Ex.OP1/A, copy of bank statement dated 30.11.2017 Ex.OP1 and closed the evidence on behalf of OP no.1 on 05.03.2020 by suffering separate statement.

9.             In additional evidence, learned counsel for OP no.1 has tendered copy of order of Hon’ble High court dated 17.08.2021 Ex.OP1/A, copy of challans/Rapat 173 Cr.P.C. Ex.OP1/B, copy of delivery receipt dated 19.04.2021 Ex.OP1/C and closed the additional evidence on behalf of OP no.1 on 20.08.2021 by suffering separate statement.

10.           OP no.3 has led no evidence after availing several opportunities and evidence of OP no.3 was closed by court order, vide order dated 08.12.2021 of this Commission.

11.           Learned counsel for OP no.5 has tendered into evidence affidavit of Sushil Kumar GPA Ex.OP5, copy of FIR no.206 dated 04.04.2019 against complainant Ex.OP5/A, copy of loan agreement of Balkar Singh Ex.OP5/B, copy of order of Hon’ble High Court dated 10.02.2021 Ex.OP5/C, copy of statement of account of Balkar Singh dated 10.12.2020 Ex.OP5/D and closed the evidence on behalf of OP no.5 on 09.03.2021.

12.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties

13.           Admittedly, the complainant had purchased a second hand Maruti Swift car from the OP no.1. As per the version of the complainant in the month of July, 2019 officials of the Cholamandlam Finance Company have informed the complainant  that the above said car is financed with their company and Rs.4,80,000/- is pending against the first owner of the vehicle namely Balkar Singh. It is also not disputed that Registration Certificate produced by Balkar Singh at the time of sale of vehicle in question, was not having any hypothecation registered on it. This fact also got verified from the Registration Authority at Gharaunda, who had issued NOC in this regard.

 14.          Balkar Singh and his wife Ranjeet Kaur got financed the  vehicle in question with the OP no.5 i.e. Cholamandlam and hypothecation was fully entered. On 09.02.2019, OP no.5 has taken the possession of the vehicle from the possession of the complainant. As per the version of the OP no.5, they have received the summons from the Court of Dharampal, Learned JMIC, Karnal, in Civil Suit no.345 of 2019 which is still pending. It is also case of the OP no.5 that during the hypothecation, OP no.1 sold the said vehicle to the complainant in connivance with each other by procuring of fake and fabricated NOC.

15.           It is also not disputed that an FIR no.206 dated 04.04.2019 under section 120-B, 420, 467, 468, 472, 506 was lodged at the Police Station Gharaunda against the complainant, Balkar Singh, his wife Ranjeet Kaur and Karnal Motors, and the abovesaid trial is still pending. It is also admitted that Ranjeet Kaur wife of Balkar Singh has approached before the Hon’ble Court for seeking anticipatory bail, as she was co-borrower. In the said bail application, it is alleged that the NOC of the sale of Maruti Swift Car, which was financed by the complainant’s company is stated to be forged. The said Ranjeet Kaur had deposited Rs.1,50,000/- with the Cholamandlam and Hon’ble Punjab and Haryana High Court granted interim bail to Ranjeet Kaur.

 16.          After hearing the arguments of all the parties, the matter is already subjudice before the Civil Court as well as Criminal Court. The question with regard to issuing the NOC, cancellation of hypothecation from the Registration Certificate of the vehicle in question, involvement of the persons are yet to be decided, which cannot be decided in summary trial and without leading detailed evidence and cross examination upon the witnesses by the all parties. Hence, the best platform to decide the matter in dispute is the Civil Court where elaborate and detailed evidence can be produced by all the parties. In this regard, we are relying upon the observations made in the case titled as Love Motels Pvt. Ltd. Vs. Union Territory of Chandigarh 2007 (4) CPJ Page 305 (NC) wherein it has been observed by the Hon’ble National Commission that complicated issues involved, not adjudicable summarily-Dismissed with liberty to seek remedy in Civil Court. In case titled as M/s The Bills through its Proprietor Versus PNB reported in 1998 (1) CPC page 150, decided by Consumer Disputes Redressal Commission, Union Territory, Chandigarh wherein it has been  mentioned that complicated issues being involved, the matter needs to be decided Civil Court-Complaint stands dismissed.

17.           Hence without going into other aspect of the case, we dispose of the complaint and complainant is at liberty to approach the Court/Civil Court of competent jurisdiction, if so desired and in that eventuality, the complainant will be entitled to the benefit of Section 14(2) of Limitation Act and the time taken during the pendency of this complaint shall be exempted. No order as to cost. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced:

Dated:06.05.2022

 

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

               

        (Vineet Kaushik)                (Dr. Rekha Chaudhary)

            Member                               Member