H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

F.A. No. 230 of 2008

Decided on 23.4.2009.



1. Mahindra & Mahindra Finance

Service through its Branch Manager,

NH-21, PO Bhangoru, Tehsil Sunder Nagar,

District Mandi, Himachal Pradesh.



2. Mahindra & Mahindra Finance Service

through its Branch Manager, Maranda Division,

Tehsil Palampur, District Kangra,

Himachal Pradesh.



Appellant No. 1 and 2 through Sh. Vivek Guleria

Son of Sh. B.S.Guleria General Power of Attorney,

Mahindra & Mahindra Finance Service having

its registered office at Mumbai.

...Appellants.

Versus



Anuradha Sharma wife of Sh. Rajiv Sharma,

Resident of Kehrian, P.O. Jawali,

District Kangra, Himachal Pradesh.

….Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellants. Mr. Rahul Mahajan, Advocate.



For the Respondent. Mr. Vinay Sharma, Advocate.

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ORDER



Justice Arun Kumar Goel (Retd.) President.



1. Appellant is aggrieved from the order passed by District Forum, Kangra at Dharamshala, in Consumer Complaint No. 178/2006 on 3.6.2008. While allowing the complaint, appellants have been held jointly and severally liable to pay sum of Rs. 48,000/- to the respondent alongwith interest @ 7% from the date of filing of the complaint, i.e. 26.6.2006 till realisation, besides litigation cost of Rs. 1000/-.




2. A maruti car was got financed by the respondent from the appellants. This was repossessed by them on 23.5.2003, by use of force through its recovery agents according to the respondent, whereas according to the appellants it was voluntarily surrendered by her as she was not in a position to pay the instalments. This resulted in filing of the complaint wherein aforesaid order has been passed. Respondent amongst other things pleaded that the appellants were not only deficient in service, but they also indulged into unfair trade practice by forcibly taking over financed vehicle by employing extra legal means. Therefore, she prayed for grant of relief.



3. As already noted plea of repossession of vehicle by use of force was denied by the appellants, and at the same time it was pleaded that the vehicle was voluntarily surrendered by the respondent because of her inability to pay the due instalments. As such neither there was deficiency of service on the part of the appellants, nor they had indulged into unfair trade practice. Further case of the appellants was that since dispute between the parties relates to settlement of accounts, as such Foras under the Consumer Protection Act, 1986 have no jurisdiction to entertain the complaint. Plea of limitation set out as defence in the face of the admitted case by the respondent that cause of action had arisen in favour of the respondent as far back as on 23.5.2003, whereas complaint was filed on 26.6.2006, without any prayer or application u/s 24A of Consumer Protection Act, 1986 for condonation of delay.

4. District Forum below allowed the complaint, hence this appeal. Sh. Mahajan reiterated the above extracted defence while challenging the order passed by District Forum below and submitted that the impugned order is liable to be set aside, whereas Mr. Sharma, learned counsel for the respondent seriously resisted all the pleas urged by Mr. Mahajan on behalf of the appellants and prayed for upholding the impugned order by dismissing the appeal.



5. So far submission of Mr. Mahajan that the vehicle was surrendered voluntarily by the respondent to his clients is concerned, it is being noted to be rejected. Reason being that if this was the situation, then in the ordinary course of things appellants would have placed some material to support this plea on the complaint file. Nothing could be pointed out by Sh. Mahajan to sustain his plea. It is now well settled, that so long rule of law prevails in the civil society, no one including the appellants in this appeal can be allowed to use extra legal/constitutional means by deploying Goondas (musclemen) as recovery agents. Only course open for the financers like appellants is to initiate steps in accordance with law even for repossession of the financed item in the event of there being default in repayment of the loan. This controversy has been set at rest by the Hon’ble Supreme Court as well as by the National Commission by a catena of authorities. Accordinlgy we have no doubt while coming to the conclusion that the vehicle was repossessed by use of force by the appellants and submission to the contrary urged on behalf of the appellants is without substance. Hence rejected.



6. So far submission of Mr. Mahajan that Foras under the Consumer Protection Act, 1986 (supra) cannot go into the facts relating to the settlement of the accounts, we reject the same as in the recent decision of the National Commission wherein contrary view has been taken to the one relied upon by Sh. Mahajan as such this plea is also rejected.



7. Under Section 24A of the Consumer Protection Act, 1986, complaint is to be filed within 2 years from the date on which cause of action arises. However, there is enabling provision whereby delay can be condoned if the complainant satisfies the Foras concerned that he had sufficient cause for not filing the complaint within the prescribed period. In such a situation reasons have to be recorded while condoning the delay before entertaining the complaint.



8. Record of the complaint file shows that there is no application filed for condonation of delay and at the same time there is no such averments and or prayer made in the complaint itself for invoking section 24 A of the Consumer Protection Act, 1986 and nothing could be pointed out from the file by learned counsel for the respondent.



9. In addition to this in paragraph 16 of the complaint, it is admitted by the respondent that cause of action accrued to her on 23.5.2003 and it was continuing. Though in the next paragraph an attempt was made to show that complaint was within time, because the respondent had filed criminal complaint against the appellants before J.M.I.C (I) Jawali on 5.8.2003. It was dismissed on 2.8.2005, copy was supplied on 6.8.2005, and it was received on 24.10.2005.



10. On the strength of date of order in the criminal complaint, Sh. Sharma, learned counsel for the respondent urged, that cause of action for maintaining the complaint arose in favour of his client against the appellants after the termination of criminal proceedings. Therefore, according to him complaint was within time. Why no prayer was made for condoning the delay, Mr. Sharma had no answer except for reiterating that the complaint was within the time from the date of decision of criminal case.



11. In these circumstances submission urged by Mr. Mahajan appears to be well founded that the complaint was barred by time and District Forum below firstly fell into error by entertaining the same, and then having passed the impugned order.



12. Suffice is to say in this behalf that cause of action having admittedly arisen as per everments made in the complaint on 23.5.2003, was the starting point of the limitation. It is by now well settled principle of law, that limitation once starts does not stop. Once this conclusion is arrived at, and complaint having been admittedly filed on 26.6.2006, that too without any prayer for condoning the delay, it is prima-facie barred by time. This matter is no more res-integra in view of the recent decision of the Hon’ble Supreme Court in the case of State Bank of India V/s B.S.Agricultural Industries (1) II (2009) CPJ 29 (SC). Para 8 & 9 of this judgement are relevant in the context of the plea of limitation, and are being extracted hereinbelow :-

“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

9. In Union of India and Another V/s British India Corporation Ltd. and Others, (2003) 9 SCC 50, while dealing with an aspect of limitation for an application for refund prescribed in Business Profits Tax Act, 1947, this Court held that the question of limitation was a mandate to the Forum and, irrespective of the fact whether it was raised or not, the Forum must consider and apply it.”



13. To similar effect is the decision of Hon’ble Supreme Court in the case of Haryana Urban Development Authority V/s B.K. Sood IV (2005) CPJ 1 (SC).

14. No other point was urged.



15. In view of the aforesaid discussion we are of the view that this appeal deserves to be allowed. Ordered accordinlgy, and as a result of it while setting aside the order of the District Forum below in Consumer Complaint No. 178/2006 dated 3.6.2008, the said complaint is dismissed leaving the parties to bear their own cost.

16. All interim orders passed from time to time shall stand vacated forthwith.

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




(Justice Arun Kumar Goel) Retd.

President





(Chander Shekher Sharma)

Member