IN THE CONSUMER DISPUTES  REDRESSAL FORUM,KASARAGOD

I.A-59 /2021 IN CC.151/2021

Dated this, the 30^th   day of July 2021

PRESENT:

SRI.KRISHNAN.K                         :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                            : MEMBER

Mohammed Kunhi,

S/o Arabi, R/at Mailankote House,                                    : Complainant

Adhur Village, Adhur

Kasaragod District

(Adv: Benny Jose)

And

1. Branch Manager,

Mahindra & Mahindra Finance Ltd,

ICICI Bank Building, Bank Road,

Kasaragod.                                                                : Opposite Parties

2. Author is signatory,

Mahindra & Mahindra Finance Ltd,

4^th Floor, Noel House,

Thrikkakara Post, Near SBI, Kakkanad

Kakkanad Cochin, Pin - 682021

ORDER

 SRI.KRISHNAN.K  :PRESIDENT

            The interim petition IA 59/2020 dated 19/02/2021 by the petitioner/Opposite Party to frame the preliminary issue and decide on maintainability of complainant in view of passing of Arbitration Award dated 10/02/2020  relating to the vehicle KL -14 W – 7721.

2.         The case of the complainant is that he availed vehicle loan of Rs. 1145000/- from Opposite Party on 05/10/2018 for purchase of tipper lorry by hypothecating the vehicle.  He has to remit monthly installments.  He requested time to pay but not ready to hear anything by the Opposite Party.  He is ready to pay the amount to Opposite Party if a breathing time is given.  Prayer in the petition is to prevent seizure of vehicle to permit clearance of loan within a period to be fixed by the Forum.

3.         The Opposite Party filed written version stating that huge amount of loan is in arrears.  He committed default and Opposite Party filed arbitration case.  Arbitrator after issuing of notice to complainant passed award dated 10/02/2020 long period before filing of consumer complaint dated 11/11/2020.  Complaint is devoid of any merit and thus sought dismissed as not maintainable in law.

4.         In the meanwhile Opposite Party filed IA 59/2021 to decide maintainability of complaint by producing arbitrations award copy.  Award by arbitrator shows that arbitration notice invoked on 25/11/2019 notice of appearance is sent by registered post, and arbitrator passed the award directing the respondents there in including the complainant herein to pay Rs.11,38,216/- with interest thereon.  No document is filed to show that any appeal or petition is pending against the award of arbitration.

5.         The arbitral tribunals are private fora chosen voluntarily by the parties to the dispute to adjudicate their disputes in place of courts and tribunals which are public Fora constituted under the laws of country.

6.         Consumer Protection Act is a society beneficial legislation offer socially beneficial remedies that are in addition to and different from the remedies offered by Civil courts or arbitration.  Consumers can always choose to file and puruse consumer disputes instead of seeking relief in arbitration.  The Honourable Supreme Court of India, vide its Judgement in M/s Emaar MGF Land Limited V/s Aftab Singh (Review petiion © numbers 2629-2630 of 2018 in civil Appeal No.23512, 23513 of 2017) has indisputably concluded that if a dispute brought before the consumer Forum emerges from an agreement which has an arbitration clause, the consumer forum will the proper and appropriate forum for hearing the dispute.

7.         We have heard learned advocates appearing on behalf of parties and we have also perused records.

8.         It is well settled law that when prior order is passed by arbitrator under arbitration and conciliation Act it is not expedient in the ends of justice and on the principles of natural Justice to pass subsequent order under Consumer Protection Act 2017 (III)CPJ 380 NC titled Lalit Kumar Dangi Versus Kalpana P. Sanghavi and Anr, Sec 2016  (II) CPJ 231 NC titled magma Fincrop Ltd Vs Gulzar Ali.

9.         Submission of learned Advocate appearing on behalf of Opposite Party ie, Finance Company that remedy to complainant was to file appeal against order passed by Arbitrator under arbitrations and conciliation Act 1996.

10.       In view of findings above IA 51/21 allowed consumer complaint and CC No 151/2020 dismissed as not maintainable for reasons stated above without any order as to costs.

       Sd/-                                                 Sd/-                                                      Sd/-

MEMBER                                          MEMBER                                          PRESIDENT

Forwarded by Order

                                                                                    Senior Superintendent

Ps/