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Gilda Finance & Investment Ltd. Rep. by Authorising Signatory Narayandas R. Jaju,General Manager v/s Basamma

    Revision Petition No. 4574 of 2013

    Decided On, 10 October 2014

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Anand & Rajshree N. Reddy, Advocate. For the Respondent: B.K. Patil, Advocate.

Judgment Text

K.S. Chaudhari, Presiding Member

This revision petition has been filed by the petitioner against the order dated 16.9.2013 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 1123/2013– Gilda Finance and Investment Ltd. Vs. Smt. Basamma by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant/respondent got his vehicle financed from OP/respondent to the tune of Rs.3,70,000/- on 10.2.2010 and complainant himself contributed Rs.1,77,600/-. Loan amount was to be re-paid in 36 monthly instalments commencing from 10.3.2010. It was further submitted that OP got signatures of complainant on many blank papers and also obtained 10 blank cheques. Complainant made payment of instalments in time even then, OP seized vehicle without any intimation and sold it and further demanded Rs.5,000/- from him. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that complaint was not maintainable and further submitted that complainant committed default in payment of two instalments; so, as per agreement, vehicle was sold after notice to the complainant and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,77,600/- with 6% p.a. interest to complainant and further awarded Rs.50,000/- towards mental agony and Rs.2,000/- as cost of the proceedings. Appeal filed by OP was dismissed by learned State Commission as barred by limitation as well as on merits against which, this revision petition has been filed.

3. Heard learned Counsel for the parties finally at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that even though there was no delay in filing appeal, learned State Commission committed error in dismissing appeal as barred by limitation. It was further submitted that impugned order is not a speaking order on merits; hence, revision petition be allowed and matter may be remanded back to learned State Commission to decide it by speaking order after treating appeal in limitation. On the other hand, learned Counsel for the respondent also agreed that appeal was not barred by limitation and submitted that impugned order is a speaking order which does not call for any interference; hence, revision petition be dismissed.

5. As far delay in filing appeal is concerned, learned State Commission observed that it cannot be believed that petitioner has not received copy of order from District Forum; hence, application for condonation of delay is rejected. It has further been observed that petitioner got copy of District Forum’s order on 14.6.2013 and appeal was filed on 17.7.2013. As far free copy of District forum’s order is concerned, perusal of District Forum order reveals that free copy was not sent to the petitioner by District Forum and in such circumstances, learned State Commission committed error in believing that petitioner must have received free copy of the District Forum order. Stamp on certified copy of District Forum order clearly reveals that free copy was not sent to the petitioner, but he applied for certified copy on 13.6.2013 and got copy on 14.6.2013. Learned Counsel for the petitioner further submitted that appeal was filed on 10.7.2013 instead of 17.7.2013; hence, appeal was within limitation from receiving copy of the order. He further submitted that even if it is presumed that appeal was filed on 17.7.2013, there was delay of only 3 days which should have been condoned by the State Commission. Learned Counsel for the respondent also agreed that apparently there was no delay in filing appeal. Thus, it becomes clear that learned State Commission committed error in dismissing appeal as barred by limitation and appeal has to be treated within limitation and even if there was delay of 3 days in filing appeal, delay is condoned.

6. As far merit of the case is concerned, learned State Commission observed as under:

'Of course, the vehicle was hypothecated to the appellant by the respondent and the financier has got every right to seize the vehicle without notice if there is any single default in making the payments. In order to sell the vehicle a prior notice is to be given to the owner of the vehicle even though he has taken the loan from the financier.

The DF after considering the facts and circumstances and the payments made by the respondent towards instalments as well as the amount deposited by way of EMIs, the DF rightly held that there was discrepancy in the acts of the appellant and it is a clear case not only the negligence in service but it amounts to unfair trade practice.

Ex.R-4 produced by the appellant before the DF which is postal acknowledgment but the appellant has not produced the copy of the notice sent to the respondent. Since the appellant has not made clear either before the DF or before this Commission by producing the copy of the letter or notice called upon the respondent to pay the balance of loan amount, if any and therefore, in our view, the DF has rightly not accepted the contents of EX.R-4. Hence we hold that the appellant has not made out any prima facie case to admit this appeal. Accordingly, we pass the following.'

7. Perusal of aforesaid order reveals that learned State Commission has not dealt with grounds taken in memo of appeal and simply upheld order of District Forum whereas apparently there was delay in payment of first, second and third instalments and apparently as per hypothecation agreement, petitioner was entitled to re-possess the vehicle and sell it after due notice. Petitioner has also filed copy of Sale-cum-Final Notice dated 5.7.2010 and photocopy of A/D pertaining to notice received by respondent and has not dealt properly with these documents.

8. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:

'1. In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

‘We have heard the Law Officer of HVPN – appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal’.

2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Co

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mmission'. 9. It appears that learned State Commission was persuaded by the fact that the appeal was barred by limitation and has not dealt on merits of the case elaborately and in such circumstances, the matter is to be remanded back to the learned State Commission to decide it afresh by speaking order by treating it within limitation. 10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 16.09.2013 passed by the learned State Commission is set aside and matter is remanded back to the learned State Commission for deciding it by a speaking order after giving an opportunity of being heard to the parties after treating appeal within limitation. 11. Parties are directed to appear before the learned State Commission on 21.11.2014.