ASHISH DAHIYA vs SWAN MOTORS

THIS revision petition under Section 21 (b) of the Consumer Protection Act, 1986 (for short Act) has been filed by petitioner for setting aside the order dated 20.12.2010 passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short State Commission).

BRIEF facts of the case are that petitioner had booked Tata Sumo Grande EX vehicle with the respondent and had approached Tata Sumo Finance for the purpose of sanction of loan for purchasing the vehicle. Petitioner got delivery of the vehicle from the respondent on 2.9.2009 by depositing the margin money of Rs.2,80,675/- and made a request that the balance amount of loan would be paid within seven days by the financer. Later on, Finance Company cancelled his request for sanctioning of loan. However, petitioner got issued a cheque for Rs.4,35,000/-, which was dishonoured by the Bank. After bouncing of the cheque, respondent has filed a complaint against petitioner under Section 138 of the Negotiable Instruments Act. It is further alleged by the petitioner that respondent had made false promises and cheated the petitioner, that they have got approval for 70% finance of the vehicle, which amounts to a grave deficiency in service on the part of the respondent.

In its written statement, respondent has stated that petitioner has approached them for purchase of one TATA Sumo Grande having Ex-showroom price for Rs.7,11,990/- and petitioner told that he wants to get the vehicle financed and he applied to M/s TATA Motors Finance Ltd. Thereafter, on 12.8.2009, petitioner deposited Rs.2 lakhs as booking amount and assured that he will pay the balance margin money along with financed amount.

IT is further stated that on 2.9.2009, petitioner deposited the amount of Rs.80,675/- as balance margin money. However, balance amount of Rs.4,35,000/- supposed to be paid by the Finance Company, had not been disbursed, as the loan was not sanctioned. At the request of the petitioner on 2.9.2009, respondent delivered the vehicle and petitioner also signed an undertaking and acknowledgement that if in case due to any reason Bank/Financer is unable to disburse the loan to you within seven days from today, we will compensate you to making payment for the balance amount and till that time, we have the excusive lien on the above mentioned car. Also the original documents will be handed over to us only after the entire payment has been made to Swan Motors Pvt. Ltd. The Finance Company rejected his loan application and petitioner was asked to make the balance payment of Rs.4,35,000/- along with interest. In the month of April, 2010, petitioner issued a cheque No.489707 dated 7.4.2010 for a sum of Rs.4,35,000/- but the said cheque was dishonoured due to funds insufficient vide Bank memo dated 17.4.2010. Respondent filed a complaint under Section 138 of Negotiable Instrument Act against the petitioner, which is pending in the court of Shri Mohit Aggarwal, learned JMIC, Sonepat. IT is further stated that petitioner with the intention to escape and delay the liabilities towards the respondent, has filed the present false and frivolous complaint. District Forum, vide its order dated 5.10.2010 dismissed the complaint of the petitioner.

AGGRIEVED by the decision of District Forum, petitioner filed an appeal before State Commission and vide impugned order, appeal of the petitioner was also dismissed in limini. Petitioner has appeared in person and argued his case. It is contended by the petitioner that respondent Company has charged him for Rs.4,000/- as processing fees of the loan and for Rs.9,900 as first E.M.I. (installment of loan), though, the loan has not been sanctioned till date. Further, it is contended that respondent had hypothecated his vehicle with TATA Motors Finance Ltd. without getting the loan sanctioned from the Finance Company and thus, respondent Company is involved in unfair trade practice and they have kept the petitioner in dark.

AS per petitioners case, he had approached TATA Motors Finance Ltd. for the purpose of grant of loan for purchasing the vehicle. Thus, TATA Motors Finance Ltd. was a necessary party in the proceeding but petitioner for reasons best known to him, has not impleaded TATA Motors Finance Ltd. as a party in this case. Present petition, is liable to be dismissed on this short ground alone, as this petition is not maintainable for non-joinder of necessary parties.

BOTH the fora below have decided against the petitioner. District Forum has given the findings that petitioner has not come to the Forum with clean hands and has suppressed the material fact. Relevant portion of its order read as under :- The complainant present in person before the Forum also argued his case, but failed to convince the Forum. However, the evidence adduced by the respondent and the arguments advanced by learned counsel for the respondent clearly go to prove that there is no deficiency in service on the part of the respondent. In the opinion of this Forum, the complainant has not come to the Forum with clean hands and has suppressed the material facts from the Forum. The complainant in the entire complaint, no where stated that he issued cheque No.489707 dated 7.4.2010 for an amount of Rs.4,35,000/- which was dishonoured and the respondent filed complaint against him under Section 138 of Negotiable Instrument Act. On the contrary, the respondent has placed on record the copy of criminal complaint filed against the complainant under Section 138 of Negotiable Instrument Act, which is pending in the Court of Shri Mohit Aggarwal, learned JMIC, Sonepat. From the evidence produced by the complainant it is proved that complainant has only made the payment of Rs.2 lakhs and Rs.80,675/- and this fact has also been admitted by the respondent. In the opinion of this Forum, no equity lies in favour of the person who concealed the facts from the Court/Forum. Accordingly, it is held that the complainant has failed to prove any kind of deficiency in service on the part of the respondent and thus, the present complaint stands dismissed with no order as to costs. State Commission while dismissing the appeal of petitioner in limini, observed ; We have gone through the impugned order and taken into consideration the facts and circumstances of the case and are of the view that in the instant case complainant had taken the delivery of the vehicle Tata Sumo, but he has not paid the balance amount of Rs.4,35,000/- for which he had applied for the loan and same was not sanctioned by the Financer. In this view of the matter, we do not find any deficiency in service on the part of the opposite party, hence, complaint of the complainant was rightly dismissed by the District Forum vide its impugned order, which does not call for any interference in this appeal. No merit. Dismissed in limini.

Thus, it is manifestly clear from the record that petitioner had taken the delivery of Tata Sumo vehicle but till date, he has not paid the balance of Rs.4,35,000/-.

PRESENT revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short Act). It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

RECENTLY, Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. It is also well settled that no leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence goes on filing meritless petitions in different foras. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

PETITIONER is directed to deposit the cost of Rs.10,000/- in the Consumer Legal Aid Account of this Commission, within two months from today. In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. List on 22nd July, 2011 for compliance.