DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SUBARNAPUR
C.C. No.04 of 2018
Mrs. Yasmeen Hussain, aged about 44 years, W/o. Hamid Hussain, R/o. Majhipada, Sonepur, P.O./P.S. Sonepur, District – Subarnapur, Occupation – Advocate.
………….. Complainant
Vrs.
1. M/s. Mahindra & Mahindra Financial Services Ltd., Sambalpur, 1st Floor, Sabat Tower, Ainthapali, P.O./P.S. Ainthapali, District - Sambalpur.
2. M/s. Mahindra & Mahindra Financial Services Ltd., 2nd Floor, Sadhana House, behind Mahindra Towers, P.B. Marg, Worli, Mumbai – 400 018.
………….. Opp. Parties
Advocate for the Complainant …………. Sri O.P. Pradhan
Advocate for the O.Ps. …………. Sri L. Bej
Present
1. Sri U.N.Purohit, President
2. Sri H.Padhan Member
Date of Filing Dt.16.04.2018
Date of Hearing Dt.22.12.2018
Date of Order Dt.16.01.2023
J U D G E M E N T
By Sri U.N.Purohit, P.
The complainant Mrs. Yasmeen Hussain filed complaint U/s.12 of C.P.Act claiming to direct the O.P. not to charge any interest or penal interest on the unpaid installment amount the fault being on their part. The O.Ps. be directed to pay Rs.2,00,000/- to the complainant towards damage and loss suffered by the complainant for her physical and mental agony. The O.Ps. be directed to have one time settlement by treating all installments as principal amount and charge no interest at all from the complainant with retrospective and prospective effect and any other relief deem fit and proper.
The O.P. appeared on 21.7.2022 and filed a petition regarding maintainability of the complaint, the case fixed for objection on the petition of O.Ps. the complainant not yet filed any objection , the case is lingering since 2018. The case of O.P. is that the O.P. is a company incorporated under Companies Act 1956and representing their Asst. Manager Legal Branch at Sambalpur. The claim of the complainant is malafide, frivolous and vexatious as the
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complainant has suppressed vital material fact in order to avoid legitimate dues of the O.Ps. The complainant approached the O.Ps. for financed Maruti Suzuki VDI vehicle and after due procedure a loan of Rs.5,55,000/- sanctioned with total contract value Rs.8,18,625/- including finance amount and financial charges. The complainant duly executed loan cum hypothecation agreement vide HPA No.3088901 on 24.03.2014 with the terms and conditions the borrower of the loan and the lender are bound by the terms and conditions applicable for the loan stipulated under the agreement. As per Clause 15 and 16 of the loan agreement any dispute between the parties are to be settled by way of Arbitration. As per the provisions of Arbitration and Conciliation Act 1996 and clause 27 of the said agreement defines, the jurisdiction of such proceeding, the parties to the agreement had specifically admitted that the dispute if any between the parties have to be referred to the sole Arbitrator for Arbitration.
The Arbitration clause as per hire purchase/hypothecation agreement was invoked much prior to the present consumer complaint and it was in knowledge of the complainant which she suppressed before this Commission. Due to frequent and intentional default in payment of legal dues of the O.Ps. Mahindra & Mahindra Financial Services Ltd., the matter was referred for Arbitration as per Arbitration clause in the agreement before the sole Arbitrator Mr. R.S. Krishna Kumar on 13.01.2017. An application U/s.17 of Arbitration & Conciliation Act was moved before the learned Arbitrator. After hearing the petition order was passed on 10.2.2017 for repossession of the vehicle and further arbitral award has already been passed on 15.03.2017. Since the award has already been passed and the complainant has not challenged the award before any forum within the statutory period and the award attained its finality. This commission lacks jurisdiction to decide this complaint petition as the decision of Arbitrator is binding on the parties. The O.Ps. relies decision of Hon’ble National Commission in the case of Installment Supply Ltd. Vrs. Kangra Ex-Serviceman Transport Co. & another and Sahara India Commercial Corporation Ltd. Vrs. Manoj Mangal.
The Hon’ble Court held that complaint cannot be decided by a Consumer Forum after Arbitration award passed. In WPC No.2792/2014 in the matter of Bikram Pradhan Vrs. Magma Fincorp Ltd. Hon’ble Orissa High Court held that as the matter has already been arbitrated and the award has already been passed regarding loan amount and hire
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purchased agreement, there is nothing to be decided in the present writ petition. The O.P. has filed the order of Arbitrator award on 15.03.2017 and the entire order dt.10.02.2017 of the Sole Arbitrator Mr. R.S.Krushna Kumar.
On perusal of the complaint petition the complainant in para 14 of her complaint petition stated about receiving of notice in Arbitration Proceeding on 17.02.2017 and has admitted about knowledge of Arbitration Proceeding. The complainant not challenged or filed any objection against this present objection filed by the O.Ps. Section 3 of C.P. Act 1986 the Consumer Protection Act not in derogation of any other law the provision of this Act shall be in addition to and not in derogation of the provisions of not other law for the time being in force.
On the supporting evidence as well as provisions of law continues of this case overriding the Arbitration award is not maintainable and it is abuse of law. It is found that the Arbitration Proceeding has already been in finality and the complainant has right to approach the proper civil court against the Arbitration award or appeal and the case of the complainant is not maintainable in this Commission, hence the case is dismissed without any costs.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for perusal of the parties. File be consigned to record room alongwith a copy of this judgment.
Dated the 16th day of January 2023
Typed to my dictation
I agree. and corrected by me.
Sri H.Padhan Sri U.N.Purohit
Member President
Dt.16.01.2023 Dt.16.01.2023
