ORDER

(Passed on – 18^th  July, 2018)

As per Hon’ble President. Mr. Shekhar Muley.

          Order on O.P.’s application for dismissal of complaint  Exh. 19 & 26

1.                    In the above two complaints filed against H.D.B. Financial Services, the opposite party (H.D.B. Fin. Services) has filed the applications for deciding preliminary issue of jurisdiction and maintainability of the complaints. On these grounds it has prayed for dismissal of the complaints. Since facts in both the complaints and grounds raised in the applications are identical, we decide the applications by a common order.

2.                    According to the OP, the complaints are filed by suppressing material facts. It is stated the complainants have taken loan for purchasing vehicles on certain terms and conditions which have been incorporated in the agreement executed between the parties. As per the agreement and documents the complainants are not consumers, since they purchased the commercial vehicles for commercial purpose. Therefore the present dispute cannot be entertained as consumer dispute. Further, as per the agreement, in the event of any dispute between the parties, the same is to be referred to arbitration. Besides, the arbitrator has passed award on 22/8/2014 against the complainants, who have challenged it in District Court in appeal. On these grounds it is submitted to dismiss the complaints without going in to the merits.

3.                   The complainants have filed their reply, which is also identical in both the cases. They have denied that any fact is suppressed by them. It is denied that they purchased the vehicles for commercial purpose and therefore they are not consumers. The contention about reference to arbitrator is baseless. However, it is not denied that the arbitrator has passed award and they have challenged the same. The applications are said to be baseless since the same are filed after submitting written reply to the complaints. Hence, it is submitted to reject the applications.

4.               At the outset, Ld counsel for the complainants submitted, when the OP has already filed written reply to the complaint the case may be heard finally on merits instead of deciding preliminary objections. However, ld counsel for the OP insisted to decide these applications first since the very jurisdiction of the forum is in question. Relying on a judgment in T.K.Lathika v/s Seth Karsandas Jamnadas (1999) 6 SCC 632, he submitted where question arises as to maintainability it must be decided first. Since the objection pertains to want of jurisdiction, we have heard Ld counsels on these applications.

5.               Ld counsel for the OP submitted that the loan transaction executed between the parties itself speaks that the vehicles were purchased for commercial purpose ans the vehicles are also commercial vehicles. He particularly referred to some documents filed by the complainants to support his contention. In documents like, payment receipt, loan statement, type of vehicle is described as commercial vehicle. He then referred to para 1 and 6 of the complaints and contended the averments made in those paras are also sufficient to show that the transaction is commercial one. In reply, ld counsel for the complainants submitted, only because the vehicle is commercial one does not mean that the transaction is of commercial nature and therefore the complainants are not consumers. He contended the vehicles may be commercial products but the same were purchased for earning livelihood, therefore, the complainants are consumers.

6.                    It is an admitted fact that the complainants have obtained loan from the OP and with the assistance of said loan they purchased trucks. The complainants have admitted in their complaints that they purchased the trucks for doing business. Admittedly the each complainant took loan of Rs. 15,93,535/- which was to be repaid by installment of Rs. 37,630/- p.m. Further, in a letter to the OP explaining reason for non payment of installments it is mentioned that they have taken commercial loan to purchase the trucks and because of strike called by businessmen truck business came to standstill and hence, installments could not be paid. On similar facts, National Commission has held that when the vehicle was purchased for commercial purpose complainant could not be termed as a consumer. Suresh Baban Gadekar v/s ICICI Bank II (2013) CPJ 474 (NC). Thus, considering these facts, we are of the view that the complainants do not fall in the definition of consumer.

7.                Next it is contended that arbitration award is already passed against the complainants. Therefore, now, the forum cannot decide the complaints. Reliance is placed on Instalment Supply Ltd v/s Kangra Ex-Serviceman Transport Co. (2007) CPJ 34 (NC). We have perused the award. The complainants appeared before the arbitrator and sought time to file reply. But finally they did not contest the arbitration proceedings. It was their choice not to contest the arbitration proceedings, but they were aware of arbitration proceedings initiated against them. So it cannot be allege that they had no knowledge of the award. They have challenged it by filing an appeal. Thus after passing of an arbitration award, the consumer complaint cannot be decided. Relying on the judgment in  Instalment Supply Ltd A.P. State Commission in HDFC Bank Ltd. v/s  Yarlagadda Krishna Murthy 2013 (1) CPR 129 (AP) has also held that after award is passed by arbitrator consumer forum cannot decide consumer complaint.

                                     For aforesaid reasons, we accept preliminary objections to decide these complaints and dismiss both the complaints.

ORDER

1. Both the complaints, C.C.No. 13/349 & 13/676  are dismissed for want of jurisdiction to decide the same.
2. No order as to cost.
3. Proceedings closed.
4. Copy of the order kept with CC/13/349 and certified copy with CC/13/676.
5. Copy of judgment be given to both the parties, free of cost.