Sri Shyamal Gupta, Member
Aggrieved with the order of the LD. DCDRC, Hooghly dated 18.06.2019 in Complaint Case No. 244/2017, this revision petition is moved by the Revisionist/OP No.1.
The factum of this Revision petition is that the Complainant is an unemployed youth. For his livelihood and to maintain his family members he purchased a car TATA MAGIC & 8 SEATER on 15.11.2013 from Lexus Motos Limited having register office 209, AJC Bose road, Kolkata—700017, but the said car was delivered to the petitioner/Complainant at Lexus Motors Limited, M.G Road, Dharampur, Chinsurah, Near Khadina More, Shilbagan, Chinsruah, Hooghly—712101. That the original cost of the said car with registration charge & Insurance charge is of Rs. 4,19,700/-. Out of total amount, complainant paid Rs. 50,000/- as advance and rest 3,69,700/- was financed by Tata Motors Finance Ltd. That your complainant as per loan agreement with the said financer being agreement no 5001426174, dated 15/11/2013 already paid 46 out of 47 EMI by ECS system through Punjab National Bank, Main Branch being A/c no. 2615000100013650 and one EMI has been due. That on 20/11/2017 where the complainant went to Bhadraswar for their driver of said Finance company forcefully taken the custody of the subject vehicle and parked the vehicle at ‘Utsa Parking’ Delhi road under the P.S—Bhadreswar, District—Hooghly.
At this stage the Complainant/OP filed the complaint case before Ld. DCDRC on 08.12.2017.
Ld. Revisionist/OP No. 1 filed a non-maintainability petition before the Ld. DCDRC on 07.03.2018, on two fold grounds i.e.—‘Commercial purpose’ and ‘Arbitration Clause’. After hearing both sides Ld. DCDRC passed the order dated 18.06.2019 rejecting the ‘maintainability petition’ and told that Complainant is a Consumer u/s 2(d) of C.P Act, 1986.
Heard both sides at length.
During the course of argument, Ld. Advocate for the Revisionist submits that Tata Motors Finance Ltd. is a non-banking finance company incorporated under the Companies Act, 1956. The finance company is in the business of extending financial assistance to borrowers for various purposes including loans against property. Accordingly a loan agreement was executed between the Finance Company as the lender and the complainant for a loan of Rs. 3,69,700/-. The complainant paid a few installments towards repayment of his loan but thereafter started making defaults. The finance company on 21.2.2017 sent a loan recalling notice to the complainant. It was also stated in the said notice that Mr. N.C. Joseph has been nominated as the arbitrator to adjudicate the disputes. But in spite of repeated demands and reminders the complainant and the co-borrower failed and/or neglected to make any further payment towards repayment of the aforesaid loan. In the agreement it is stated that if any dispute cropped up between the parties, the same had to be referred to a Ld. Arbitrator for the adjudication of disputes under the Arbitration & Conciliation Act, 1996. Therefore, this Ld. Forum has no jurisdiction to try this instant case.
The disputed matter was referred to arbitration and a notice for the commencement of arbitration proceeding was also sent to the complainant. The complainant even after receiving the said notice failed and/or neglected to appear before the Ld. Arbitrator for adjudication of the disputes. After hearing the matter the Ld. Arbitrator was pleased to pass an award in favour of the Finance Company directing the compliant to make payment of the awarded amount along with interest @ 18% per annum till the date of realization of the same. The said awarded dated 26.05.2017 was duly served on the complainant.
At this stage, Complainant before the District Forum under C.P Act, 1986 is not maintainable and cited one decision of SCDRC, Chhattisgarh (FA/12/422 dated 24.01.2014) which speaks as follows:-
“If once award is passed by the Arbitrator then only remedy available to an aggrieved party is to file an application under Section 34 of the Arbitration and Reconciliation Act, 1996 for setting aside the award. Looking to the record of the District forum, it appears that the complainant/appellant did not opt to file an application under Section 34 of the Arbitration and Reconciliation Act, 1996 before competent District Judge and instead of filing application under Section 34 of the Arbitration and Reconciliation Act, 1996 the complainant/appellant continued in prosecuting the matter before District Forum.”
Ld. Advocate for the Respondent/Complainant filed few citation of Apex Court contradicting the same.
1. In N.K. Modi’s case the 2-Judge Bench of the Supreme Court after taking into consideration the provisions of the C.P Act, the Arbitration Act of 1996 and Arbitration Act, 1940 held as under:
“The Provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force.”
2. In Skypay Couriers Ltd.’s case the Supreme Court again in the context of Arbitration Act of 1940 observed as under:-
“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”
3. In Trans Mediterranean’s case, the Hon’ble Supreme Court observed as under:-
“In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy.”
Perused the order dated 07.03.2018. The same speaks nothing with ‘Arbitration’ matter.
Now the crux of the question is “whether once an arbitral award is passed, be it after full-fledged hearing or ex parte hearing, then proceedings can be initiated before the CF on same issue?”
Over the matter, the current citation of the Apex Court be referred:-
The Hon’ble Three Judges Bench of Supreme Court comprising of Hon’ble Justice Uday Umesh Lalit & 2 others observed on 6th September, 2021 in M/S Tata Motors Finance Ltd—Vs—Raju Dutta & Ors. as follows:-
“If according to respondent no. 1, he was not served with any notices and the proceedings in arbitration had gone ahead ex parte, it was open to him to avail of the remedies available under the Arbitration Law but the proceedings in arbitration could not directly or indirectly be commented upon or challenged before the Consumer Forum.”
And similarly on the same date in Associate Vice President, Office of the Consumer, M/S Tata Motors Finance Ltd. & Anr—Vs—Ram Deo Pandit & Ors the Hon’ble Apex Court of same Bench observed as follows:-
“The Respondent no.1, if he was aggrieved by the award passd by the Arbitrator or any observations made therein, could have challenged the arbitral award by initiating proceedings in accordance with law. The arbitral award could not be challenged in proceedings initiated before the Consumer forum. If the arbitral award was not challenged in a manner known to law such award had to be accepted by the Consumer Forum.”
In view of the foregoing position, Consumer Complaint Case 244/2017 shall, therefore, stand dismissed.
The Revision thus stands allowed without any order as to costs.
