2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Argued By:- For the appellants : Sh. Gaurav Sharma, Advocate For respondent No.1 : Sh. Sandeep Bhardwaj, Advocate For respondent No.2 : Sh. Sandeep Chopra, Advocate For respondent No.3 : Struck off, vide order dt. 09.07.2019 For respondent No.4 : Ex parte. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellants/opposite parties No.5 & 4 against the order dated 05.07.2018 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, the District Forum), whereby the complaint filed by respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed in the following manner: Hence, complaint in hand is hereby allowed and OP-4 and OP-

5 are directed to issue No Due Certificate to complainant regarding his loan account pertaining to vehicle bearing no.PB5Y-4955 and other documents required for removal of hypothecation and lien of Company from the documents and said tractor. OPs are further directed to pay 5,000/- to complainant as compensation for harassment and mental agony suffered by him besides 3,000/-as litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to record room.

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the Complaint

3. Brief facts, as averred in the complaint, are that opposite party No.1 was deputed as Collection Manager by L & T Finance Ltd., First Appeal No.572 of 2018 opposite parties No.4 & 5 and was duly authorized for collecting the instalments of loan from the borrowers at Zira. Opposite party No.2 was the Branch Support Manager (Operations) of L & T Finance Ltd. and opposite party No.3 was its Area Collection Manager. The complainant, after taking loan of 5 lac from L & T Finance Ltd., purchased Mahindra Arjun Tractor bearing registration No.PB-05-Y 4955 from M/s Gill Tractors, Zira. M/s L & T Finance Ltd. obtained his signatures on some blank papers and forms at the time of advancing the said loan; which was repayable in instalments of 87,400/- each. The complainant paid the first instalment of 87,400/- in cash, vide receipt No.C1113-1994499 dated 11.05.2015 and second instalment of 87,400/-, vide receipt No.C0415-4203507 dated 24.12.2015. In the month of April 2016, the complainant decided to foreclose the loan account, by clearing all dues. He approached opposite party No.1, who suggested that if he wanted to pay all the instalments due in lump sum and foreclose the account, he would be entitled to the benefit of waiver of interest that would have been levied had he kept the loan for more time, so he was required to pay a consolidated sum of 3,12,500/- in full and final settlement of the said loan and on receipt of the same, the complainant would be issued No Objection Certificate. Accordingly, the complainant paid 3,12,500/- in cash to opposite party No.1 on 05.04.2016, but he did not issue any receipt, on the ground that the receipt book had been lost/finished. However, opposite party No.1 issued a kachi receipt on the back side of paper of M/s L & T Finance, mentioning the account number of the complainant as First Appeal No.572 of 2018 OKG002141R1400769857 and an amount of 3,12,500/-. Opposite party No.1 also handed over a copy of his Voter Card, Driving Licence, Ration Card and PAN Card to complainant. Thereafter, the complainant kept on asking the opposite party No.1 several times to issue the receipt, but he put off the matter on one pretext or the other and lastly he handed over an ACH debit clearing form in lieu of the receipt. However, the complainant received a call from the Company regarding non-deposit of instalments, but he made aware the Company about foreclosing the account by making payment of 3,12,500/- to opposite party No.1. The complainant, vide e-mail dated 22.05.2016, also brought the entire matter to the knowledge of the Company, followed by another e-mail dated 25.05.2016. Thereafter, a meeting was held with the Company official, Gulshan Dutta, on 30.05.2016; who accepted the liability of the Company with an assurance that the No Objection Certificate would be issued to the complainant, as the payment was made by him to opposite party No.1, Collection Manager. On asking of Sh. Gulshan Kumar, the complainant moved application dated 30.05.2016; which was received and endorsed under his signatures. Thereafter on asking of L & T Finance Limited, the complainant submitted an affidavit, along with I.D. proof, and also wrote e-mail dated 30.05.2016 and letters dated 13.06.2016, 11.08.2016, 04.10.2016 and 01.11.2016 raising his grievance, but opposite party No.4 did not issue No Objection Certificate to him. Rather, the Company issued notices dated 13.09.2016 and 12.10.2016, wrongly alleging the complainant as First Appeal No.572 of 2018 defaulter and claimed a sum of 3,45,426/- from him, which also included a sum of 3,12,500/- already paid on 05.04.2016. Since opposite party No.1 was acting as an agent of the Principal, L & T Finance Ltd. for the purpose of collecting the instalments of loan from the borrowers, so as per settled law, the principal is liable for the acts of its agents. The averments of the complainant stand corroborated from the fact that Sh. Dalbir Singh, Area Collection Manager, opposite party No.3, on the basis of an authorization letter dated 30.05.2016 of L & T Finance Ltd. moved an application dated 02.06.2016 to S.S.P. Ferozepur for registration of FIR against Sh. Rohit Sethi, Collection Manager, for commission of offences of fraud, forgery, manipulation, misappropriation etc. During investigation, a telephonic call was also received by the complainant; who wrote letter dated 20.08.2016 to the police, stating his grievances. The matter was thoroughly investigated and investigation report dated 08.09.2016 for registration of FIR against opposite parties No.1 & 3 under Section 406/420/467/468/ 471/120-B/211 IPC was submitted for approval of the S.S.P. Ferozepur; which was approved on 23.09.2016. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant filed complaint before the District Forum, seeking following directions to them:

i) to issue No Objection Certificate to the complainant in respect of above said vehicle; ii) to pay 50,000/- as compensation for mental agony, pain and harassment suffered by the complainant and litigation expenses; First Appeal No.572 of 2018 iii) to pay 50,000/- on account of deficiency in service and unfair trade practice adopted by them; and iv) It was also prayed that notices dated 13.09.2016 and 12.10.2016 for 3,45,426/- along with interest may be quashed. Defence of the Opposite Parties

4. Upon notice, opposite parties No. 1 to 3 did not appear before the District Forum, despite their service and were proceeded against ex parte. However, opposite parties No.4 & 5 appeared and filed joint reply to the complaint.

5. Opposite parties No.4 & 5, in their reply, raised preliminary objections that allegations of the complainant qua obtaining his signatures on blank papers and forms by coercion and undue influence are totally wrong, false and baseless and have been cooked up just with an intention to avoid repayment of loan amount falling due against him, which as on 18.01.2017 was 3,67,146.01, excluding future receivable interest and charges. The opposite parties are non- Banking financial public limited Company, registered under Companies Act. The complainant does not fall under the definition of consumer, as defined in the Act, as he himself stated that he had taken loan from the answering opposite parties for the purchase of commercial vehicle

i.e. Mahindra Arjun Tractor; which was later on registered vide Registration No. PB-05Y-4955. Furthermore, the complainant had been plying the same by employing drivers, helpers and other required labourers and, as such, he is earning large profits from his business by using the commercial vehicle. He purchased the vehicle after availing First Appeal No.572 of 2018 loan facility from opposite parties to the tune of 5,00,000/- and agreed to repay the same along with finance charges/interest to the tune of 1,91,200/- in eight equal half yearly instalments. It was further pleaded that the complainant was never regular and punctual in repaying the instalments; as a result of which the outstanding amount against the complainant was getting higher. Thus, he was asked by the Company official to pay the balance instalment amount, but he stated that he had paid the entire outstanding amount to the person (as alleged in the complaint). Thus, the complainant was directed to move a written complaint against the alleged official, stating all the facts. He was also assured that the matter would be investigated and after following the due procedure and finding the guilty person, if any, all the rights of the complainant would be protected and it was also specifically told to the complainant that without finding the real culprit, the balance amount had to be paid by him. However, the complainant refused to do so. After waiting for a considerable period, the Company issued demand notices dated 11.07.2016 and 13.09.2016, requesting the complainant to pay the balance and future loan instalments, but to no effect. Due to repeated failure of the complainant in not paying the instalments on agreed time, the event of default has occurred as per Clause 8 of the agreement. Thus, by protecting its rights, the Company had foreclosed the account/agreement of the complainant on 18.01.2017 and as per foreclosure report, a sum of 3,67,146.71 was pending towards him. It was further pleaded that the matter regarding the lodging of FIR is still sub-judice and it was too early to decide the First Appeal No.572 of 2018 issues raised by the complainant in the complaint. It was further pleaded that the District Forum had no jurisdiction to entertain, try and decide the complaint, in view of the arbitration clause in the agreement. The territorial jurisdiction of the District Forum was also barred, as in view of terms of the agreement, the dispute between the parties is liable to be decided by the Courts at Mumbai. The complaint is false, frivolous and vexatious and is liable to be dismissed under Section 26 of the Act. On merits, the pleas, as raised in the preliminary objections, were reiterated. It was admitted that opposite party No.1 was deputed as Collection Manager by L & T Finance Ltd. for collecting the instalments of loan from the borrowers at Zira. It was denied that the complainant kept on visiting the opposite parties for getting No Objection Certificate. It was also denied that opposite party No.1 ever collected the instalment of 3,12,500/- from the complainant or issued kachi receipt to him. All other allegations levelled in the complaint were also denied and it was prayed that the complaint be dismissed with heavy costs. Evidence of the Parties and Finding of the District Forum

6. The complainant, in support of his claim, tendered into evidence his own affidavit Ex.C-1, along with documents Ex.C-2 to Ex.C-38. On the other hand, opposite parties No.4 & 5 tendered into evidence affidavit of Sh. Sourav Saini, Authorized Legal Retainer Ex.OP4&5/1, along with documents Ex.OP4&5/2 to Ex.OP-4&5/12. The District Forum, after going through the record and hearing learned First Appeal No.572 of 2018 counsel for the parties, allowed the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties

7. I have heard learned counsel for the appellants and respondents No.1 & 2, as name of respondent No.3 was struck off from the array of parties, vide order dated 09.07.2019 and respondent No.4 did not appear despite his service and was proceeded against ex parte, vide order dated 19.03.2019. I have also perused the written arguments submitted on behalf of the appellants and respondent No.1 and have carefully gone through the records of the case.

8. In the written arguments, the appellants/opposite parties No.4 & 5 took the same stand, as taken by them in their reply. It was further contended that the averments of the complainant are contradictory, as on the one hand, he has stated that he deposited 3,12,500/- with opposite party No.1 who did not issue the receipt and on the other hand, he stated that opposite party No.1 issued a kachi receipt, mentioning loan account of the complainant. However, the said kachi receipt has not been produced on record by the complainant, for the reasons best known to him. Even if it is presumed that the complainant deposited the said huge amount of 3,12,500/-, then also he has failed to prove, as to from where he got that amount and no Bank Statement has been produced to prove withdrawal of that amount. Even if he was having that much amount in his pocket, then why he took loan from the appellants is not explained. Thus, it is proved that the complainant has concocted a false story of depositing First Appeal No.572 of 2018 3,12,500/- with opposite party No.1. It was further contended that complicated questions of facts and law are involved in the present case, which require elaborate evidence and trial and, thus, it can be decided only by the Civil Court. In this regard, reliance was placed on Oriental Insurance Co. Ltd. v. Munimahesh Patel . (2006) CPJ 1 (SC). It was further contended that opposite party No.1 was not authorized to waive off any amount, without getting approval of management of the Company, nor he sought any such approval of the Company. Thus, the appellants, being the principal, cannot be held liable for the act of agent, which is not in the scope of agents authority. It was further contended that the complainant was duty bound to collect the receipt on making cash payment, as he had already paid two instalments of loan, against receipts. It was further contended that the District Forum wrongly presumed that opposite party No.1 admitted that he had received the amount of 3,12,500/-, but the fact remains that he never admitted this fact. It was further contended that the complainant and opposite party No.1, agent, are of common intention to cheat the Company and the complainant intentionally with ill-motive had not got the original receipt of the Company from opposite party No.1. As per Company policy, if the loanee pays the amount of instalment in full and final loan amount more than 1,00,000/-, then he has to pay the said amount by way of demand draft/cheque, but admittedly in the present case, the complainant paid the entire loan amount to opposite party No.1 in cash. This shows the connivance of the complainant and opposite First Appeal No.572 of 2018 party No.1. The District Forum failed to appreciate the real controversy involved in the complaint and passed a wrong order; which is liable to be set aside, by way of allowing the appeal.

9. The written arguments submitted on behalf of respondent No.1/complainant are also on the lines of the complaint. It was further contended that the complainant paid two half yearly instalments of 87,400/- each to the appellants, through opposite party No.1 on 11.5.2015 and 24.12.2015 against proper receipts Ex.C-2 and Ex.C-3. In the month of April, 2016, with a view to foreclose the loan account, the complainant approached opposite party No.1, who asked him to deposit the amount of 3,12,500/- in full and final settlement for foreclosing the loan account. The complainant paid that amount to opposite party No.1; who issued kachi receipt Ex.C-4, on the pretext that his original receipt book had been stolen. It was assured that No Due Certificate would be issued within a few days, but the complainant received a call from the Finance Company regarding non- deposit of said instalment. The complainant made the appellants aware about deposit of above said amount of 3,12,500/- and in a meeting held on 30.05.2016, Sh. Gulshan Dutta, official of the appellants, also accepted the liability of the Company, with assurance to issue the NOC, as complainant had already paid that amount to opposite party No.1, who was duly authorized to collect the payment on behalf of the appellants. The Company moved a complaint, Ex.C- 32, to SSP, Ferozepur, against opposite party No.1. The complainant also sent letter dated 20.08.2016 Ex.C-34 to SSP, Ferozepur in this First Appeal No.572 of 2018 regard. In the investigation report dated 08.09.2016, Ex.C-35, it was proved/held that a sum of 3,12,500/- was received by opposite party No.1 from the complainant. It was also found that opposite parties No.1 & 3 issued fake receipts to consumers and cheated them, by not depositing the amount with the appellants. The District Forum has considered the ratio of all these facts in its right earnest and passed a correct order and, as such, the appeal is liable to be dismissed. Consideration of Contentions

10. I have given my thoughtful consideration to the contentions raised on behalf of the appellants/opposite parties No.4 & 5 and respondent No.1/complainant.

11. First of all, I would like to deal with the plea of the appellants raised in the written arguments that the complaint could not be decided by the District Forum, due to involvement of complicated questions of law and facts therein.

12. This matter is no more res-integra. The Honble Supreme Court in case Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi, 2002 (2) CPC-640, held that under the Act, the Honble National Commission is headed by a retired Judge of the Honble Supreme Court and the State Commission is headed by a retired High Court Judge. Similarly, the District Forums are headed by retired District/Additional Session Judge or the person of legal background having equivalent experience and, as such, they are competent to decide the complicated issues of law or facts. It is expected of them to First Appeal No.572 of 2018 decide the cases on merits, on the basis of prima facie evidence on the record.

13. Similarly, in Shiv Kumar Agarwal v. Arun Tonden & Anr., 2007 (2) CPC 129 (NC), it was observed by the Honble National Commission in Para No.5 as follows:

5. We heard the learned Counsel for the petitioner and perused the material on record. Like before the State Commission, the learned Counsel for the petitioner argued before us that this case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary procedure adopted by the Consumer Fora. After seeing the complaint, written version as also the judgments of the Hon'ble Supreme Court in the case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi , and other catena of judgments, we are of the view that Consumer Forum, which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. The Consumer Protection Act, 1986 under Section 13 provides for calling for expert evidence, if necessary.

14. In view of the ratio of laid down in the authorities discussed above, the Consumer Forums are being presided by the competent senior judicial authorities and they are capable of dealing with even complex questions. The ratio of the law laid down in the authority cited by the learned counsel for the appellants is distinguishable, in view of the law laid down in the above discussed cases. Accordingly, the plea of the appellants in this regard is rejected.

15. So far as the objection raised by the appellants/opposite parties No.4 & 5 in their reply that as per terms of the agreement, the matter between the parties is liable to be resolved through arbitration, is concerned, it is relevant to mention here that the Larger Bench of the Honble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh First Appeal No.572 of 2018

v. EMAAR MGF Land Limited & Anr., also held that an arbitration clause in the afore-stated kind of agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Honble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Honble Supreme Court, vide order dated 10.12.2018. Consequently, the existence of an arbitration clause in the agreement, if any, is not a bar to resolve this dispute by this Commission. Accordingly, the said objection of the opposite parties is also rejected.

16. Now, coming to merits of the case, it is an admitted fact that the complainant had taken a loan of 5 lac from the appellants/opposite parties No.4 & 5, vide Loan-cum-Hypothecation Agreement dated 22.02.2014, Ex.OP4&5/2; which was repayable in 8 instalments, along with interest at the rate of 9.56% per annum. In pursuance to that loan amount, the complainant had deposited two half-yearly instalments worth 87,400/- each to the appellants, vide receipts dated 11.05.2015 and 24.12.2015, Ex.C-2 & Ex.C-3, through Sh. Rohit Sethi, opposite party No.1; who was admittedly the Collection Manager of opposite parties No.4 & 5. Thereafter, the First Appeal No.572 of 2018 complainant decided to foreclose the loan account by depositing the amount in lumpsum. Accordingly, he deposited 3,12,500/-, vide kachi receipt Ex.C-4, with Sh. Rohit Sethi, opposite party No.1; who has admitted this fact in his statement, Ex.C-35 (colly.) at page 137 of District Forum record, stating that he has deposited the said amount with the Area Collection Manager, Dalbir Singh, opposite party No.3; who has misappropriated the same. However, the opposite parties made phone calls to the complainant regarding non-deposit of instalments. In the meeting held between the complainant and Company official Sh. Gulshan Dutta, the Company admitted its liability/payment of entire loan amount by the complainant and undertook to issue No Due Certificate, but nothing was done despite that. This fact is evident from e-mail Ex.C-16 on record. Thereafter, the M/s L & T Finance Ltd. lodged complaint dated 02.06.2016 with S.S.P. Ferozepur, Ex.C-32, against the opposite parties. The complainant also sent letter dated 20.08.2016 Ex.C-34 to SSP, Ferozepur in this regard. The police made thorough investigation and prepared the Investigation Report dated 08.09.2016, Ex.C-35 (colly.). As already discussed above, Sh. Rohit Sethi, opposite party No.1, made his statement Ex.C-35 (colly.) before the police during the investigation; in which he duly admitted that he had received the amount of 3,12,500/- from the complainant towards full and final settlement for foreclosing the loan account and he deposited the said amount with the Area Collection Manager, Dalbir Singh, opposite party No.3, but he misappropriated the same. During investigation, the police had also First Appeal No.572 of 2018 recorded statements of other borrowers of the Company, from whom Sh. Rohit Sethi, opposite party No.1 and others had collected the instalments. They stated that the employees of the Company used to collect the amount of instalments from the borrowers, without issuing any receipts. The receipts Ex.C-2 to Ex.C-5 have duly been admitted by the opposite parties in the investigation conducted by the police and there is no denial of this fact on their part. Furthermore, there is no rebuttal to the above discussed documents, on the part of the opposite parties. Thus, it is proved on record that the payment of 3,12,500/- has duly been made by the complainant in lumpsum, for foreclosing the loan account. No doubt, opposite party No.1 alleged that opposite party No.3 misappropriated the above said amount by not depositing the same with the Company, yet the fact remains that there is no fault on the part of the complainant, as he deposited the said amount in full and final settlement of his loan account in lumpsum with opposite party No.1, who was authorized by the Company to collect the instalments from the borrowers. As such, the Company cannot be absolved of its responsibility arising out the loan agreement and it is liable to issue the No Due Certificate to the complainant in respect of the loan account and it cannot raise such illegal demands from him. Even if any fraud was committed by opposite party No.1, in connivance with opposite party No.3, the same is the inter-se matter between the Company and its officials. However, the Company, being the principal, is liable for the acts of omission/commission of its employees/agents and the complainant cannot be made to suffer on account of this fact. First Appeal No.572 of 2018

17. In view of my above discussion, I do not find any irregularity in the impugned order passed by the District Forum. Accordingly, the appeal is dismissed and the impugned order is upheld.

18. The appellants had deposited a sum of 4,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The appellants deposited another sum of 3,000/-, in compliance of order dated 16.11.2018, as costs for condonation of delay; which was to be paid to the complainant, as and when he appeared. This amount, along with interest accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith, if not already paid to respondent No.1/complainant. Respondent No.1/ complainant may approach the District Forum for the release of the above amounts and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.

19. The appeal could not be decided within the statutory period due to heavy pendency of court cases. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT May 22, 2020. (Gurmeet S)