Rajasthan

StateCommission

A/171/2016

Magma Leasing Ltd - Complainant(s)

Versus

Chhaju s/o Kalu Ram Regar - Opp.Party(s)

Umesh Nagpal

29 Jul 2016

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 171/2016

 

Magma Leasing Ltd., 207,208 Kamalratan Chamber. M.I.Road, Opp. GPO, Jaipur through Manager & ors.

 

Vs.

 

Chhajuram s/o Laduram r/o Plot No. 109 Raigar Basti,Mansinghpura, Tonk Road, Jaipur.

 

FIRST APPEAL NO: 1137/2015

 

Chhajuram s/o Laduram r/o Plot No. 109 Raigar Basti,Mansinghpura, Tonk Road, Jaipur.

 

Vs.

Magma Leasing Ltd., 207,208 Kamalratan Chamber. M.I.Road, Opp. GPO, Jaipur through Manager & ors.

 

 

Date of Order 29.7.2016

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Before:

 

Hon'ble Mr.Vinay Kumar Chawla-Presiding Member

Hon'ble Mr. Kailash Soyal - Member

 

Mr. Umesh Nagpal counsel for Magma Leasing Ltd.

Mr. Rajdev Tripathi counsel for the complainant

 

 

BY THE STATE COMMISSION

 

Both these appeals arise out of the order dated 28.8.2015 passed by the learned DCF Jaipur 2^nd by which the complaint was allowed.

 

Brief facts are that the complainant had purchased a tempo for his livelihood for Rs. 4,98,000/-. He had taken a financial assistance of Rs. 3,83,400/- from Magma Leasing Ltd. and margin money of Rs. 1,15,400/- was deposited by the complainant. The loan of Magma Leasing Ltd. was to be paid in 48 installments of Rs. 11,300/- each. Till 15.4.2010 the complainant had paid 35 installments amounting to

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Rs.3,95,500/-. He defaulted in payment of three installments and his tempo was confiscated by the Magma Leasing Ltd. The complainant offered to deposit the over due 5 installments and requested them to release the tempo but the financiers demanded Rs. 2,57,282/- in one payment. The complainant filed a civil suit and prayed for restraining the Magma Leasing Ltd. to auction his vehicle. The complainant alleged that despite stay order the Magma Leasing Ltd. auctioned his vehicle and he was not informed of the sale proceeds etc.

 

In addition to this other relevant facts are that Magma Leasing Ltd. started arbitration proceedings in Kolkata under clause 22 of the agreement entered into between the complainant and Magma Leasing Ltd. On 26.4.2010 the complainant had been issued notices by the arbitrator but as per the arbitration award failed to appear before the arbitrator and award of Rs. 57282/- was passed against him. The complainant has denied any knowledge of the arbitration proceedings.

 

When his application u/s 151 of CPC for taking delivery of the vehicle was rejected, he filed a consumer

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complaint before the learned DCF on 1.11.2011 and the arbitrator had passed his award on 19.3.2012. Before the DCF the opposite party however, pleaded that complaint was barred by res judicata. Secondly the award has been passed by the arbitrator and the complaint was not maintainable but the opposite party failed to produce any evidence in support of its objections. No award of the arbitration was filed before the DCF, therefore, the DCF rejected this application vide its order dated 2.2.2015.

 

The opposite party has not filed any formal reply of the complaint before the DCF and after their application was rejected on 2.2.2015 they absented themselves from the proceedings and the DCF passed its order after hearing the complaint. The complainant filed an appeal no. 1137/2015 challenging the award of the DCF on the ground that complainant has not been adequately compensated. He had taken loan of Rs. 3,83,400/- and had re-paid Rs. 3,95,500/- and his vehicle was confiscated and auctioned. He was not informed of the sale proceeds, thus, the compensation was not adequate.

 

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The opposite party filed the appeal challenging the award of the DCF on the ground that arbitration proceedings had been instituted before filing of this complaint, hence, the complaint was not maintainable. The appeal by the opposite party was filed with delay of 136 days. It has been stated that there were two complaints pending before the DCF and under some wrong impression they were informed that this complaint has been dismissed by the DCF. We have considered the reason for delay and we find that the delay has not been satisfactory explained. Opposite parties were appearing before the DCF and had objected to the maintainability of the complaint and there can be no ground of impression of the result of complaint.

 

The learned counsel for Magma Leasing Ltd. submitted that arbitration proceedings had been instituted in the year 2010 and arbitrator had proceeded ex-parte against the complainant as he failed to appear before the arbitrator. The execution proceedings for executing the award of the arbitrator against the complainant is pending and award of DCF has become infructous. The learned counsel for the

 

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complainant submits that they had no knowledge of arbitration proceedings.

 

We have heard the counsels of both the parties.

 

We are of the view that Magma Leasing Ltd. is trying to play hide and seek with the proceedings before the DCF. The complaint was filed on 1.11.2011. On 27.9.2012 the opposite party was given last opportunity to file reply. The opposite party had been served with notices, on 9.7.2012 counsel gave an undertaking to file power. No reply was filed on next date 611.2012 but an application was filed regarding arbitration proceedings. No copies of arbitration proceedings were filed. This application was heard on 2.2.2015, till then no copies of proceedings or award was produced. When the application was rejected they did not file an revision/appeal against this order. After that they were irregular in appearing before the DCF. Even after award was passed by the DCF, the appeal was filed after more than four months and reason for delay seems to be absolutely filmsy. This leads us to conclusion whether any arbitration proceedings had been started before filing of complaint is doubtful. Arbitration

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award shows appointment of one Mr. Swapan Kumar Chatterjee who had left for United Kingdom without completing the proceedings. Then second arbitrator was said to be appointed on 16.5.2011. The delay in filing copy of arbitration award raises a doubt whether the complainant had knowledge of these proceedings. Whether he had consented to arbitration proceedings to be conducted at Kolkata or he gave consent for referring the matter to arbitrator is not proved. It has been held by the Apex Court that remedy under Consumer Protection Act is an additional remedy and complainant could approach Consumer Fora. We are not inclined to condone the delay in filing the appeal or submitting arbitration award. The appeal no. 171/2016 does not deserve to be admitted.

 

Coming to the appeal of the complainant for enhancement, we have considered the argument of the learned counsel for the complainant. The complainant had already paid 35 installments amounting to Rs. 3,95,500/- on the date confiscation of vehicle. He had initially invested Rs. 1,15,400/- of his own in the vehicle. The complainant was not informed of the auction or the sale proceeds. Naturally the

 

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complainant was put to great loss. In these circumstances we wish to modify the order of the learned DCF and increase the compensation to Rs.2,00,000/-. Rest of the order is maintained. Order be complied within one month.

 

The appeal no. 171/2016 is dismissed. The appeal no. 1137/2015 is allowed as above.

 

(Kailash Soyal) (Vinay Kumar Chawla)

Member Presiding Member

 

 

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