Complainant by filing this complaint has submitted that for his own use, complainant bought a pre-owner’s car being Model No. Honda CRV by taking a Used Car Loan from the op to the extent of Rs. 6,78,930/- and monthly EMI amount was Rs. 19,270/- and tenure was of 48 months and op disbursed loan on 31.12.2011 and the said EMI started from 05.02.2012 through an ECS system directly from the complainant’s account. Complainant was a regular payee of the installments and never defaulted in repayment of the EMIs which had been deducted from the bank account of HDFC of the complainant through ECS system. But in the month of November 2013 complainant paid his EMI through ECS. But suddenly the complainant faced an accident and was bedridden for 8-9 months and never the complainant became defaulter in paying the EMIs to the ops because the payment system through ECS directly from the complainant’s account. In the fag end of 2013 complainant started his repayment of his loan amount when op sent their representative to the complainant’s house to collect the cheques of the monthly EMIs.
Complainant asked them the reason and also requested them to take two cheques at two different months as if one is lost or missed or any other reasons which might create complication but the representative of the op did not give any satisfactory answers to the queries of the complainant. But the complainant in the month of January and February issued two cheques being Nos. 000032 and 000033 respectively both dated 16.02.2014 and Amit Bose representative by agency ID Card No. 206724 issued two number of receipts bearing Nos. 32672174 and 32672175 and complainant also paid the EMI for the month of March through the op vide receipt No. 33088791 dated 27.03.2014.
But in the month of April complainant personally called up the op to collect the cheque for the month of April. But after receiving the call he would not be able to come to collect the cheque due to extreme heat, instead he will collect the cheques for the month of April and May at the same time on the month of May. But immediately after one or two days the op’s staffs started threatening along with the verbal abuses through landline and mobile. They simply denied listening to anything and they threatened to take away the car by sending the flyers and musclemen and also used filthy languages along with the threat of physical abuses.
It is specifically mentioned by the complainant that he is never a defaulter regarding his payments of EMI but yet on 18.02.2014 the op without any reason sent advocate’s letter demanding Rs. 21,507/- on the basis of that complainant made series of default in paying the EMIs. But it is completely unfair trade practice and deficiency of service on the part of the op and the entire activities is deceitful in manner and in the above circumstances, complainant has prayed for redressal with a prayer for directing the complainant to stop making any payments any further and forfeit the remaining amount so pending by the complainant to pay the op and also direct the op to pay compensation to the complainant by the op etc.
On the other hand op by filing written statement on 14.08.2014 submitted that no doubt complainant was granted loan and same was disbursed that is an amount of Rs. 6,80,000/- on 31.12.2011 and installment was at the rate Rs. 19,670/- per month for 48 months first part of installment was payable on 05.02.2012 and the last of such installment payable on 05.01.2016. But in the event of any default for making payment of his dues under the subject agreement, the same would terminate ipso facto and the complainant will forthwith become liable to pay the entire outstanding including future installments immediately. No doubt complainant duly availed and utilized the said loan amount for purchasing the subject vehicle and that was insured with HDFC Ergo General Insurance Co. Ltd. But complainant was irregular in payment of his EMIs and in breach of the terms of the agreement the complainant paid only 26 installments and part of 27th installment and failed and neglected to pay part of the 27th installment and all subsequent installments thereafter and most of the ECS returned unpaid and as such the op bank terminated the aforesaid agreement by a notice dated 25.07.2014 and called upon the complainant to repay the total outstanding of Rs. 4,31,691/- within 7 days and inspite of the notice, complainant did not turn up and the op has referred the dispute to arbitration and it is submitted that timely repayment of the amount is the essence of the loan agreement and in the meantime complainant has not paid the same and all other allegations is made by the complainant is false and fabricated and in the above circumstances, the present complaint should be dismissed.
Decision with reasons
On proper consideration of the complaint and written version and also hearing the argument of the Ld. Lawyers and particularly the plea of the op is that prior to filing of this complaint, arbitration proceedings has already been started. So, we shall have to consider whether any arbitration proceeding has already been started or not against the complainant in respect of his loan account.
Fact remains loan account No. 20394256 dated 31.12.2011 consists of an arbitration clause in respect of Honda CRV being registration No. WB 02Z 3988 and at the time of argument defence along with their written argument op submitted a judgement of Sole Arbitrator Paritosh Kumar Pal in connection with Arbitration Case No.1063/2014 wherefrom it is found that as per agreement clause of Arbitration Paritosh Kumar Pal was appointed as Sole Arbitrator and that Arbitrator already passed award in favour of the op for a sum of Rs. 4,31,691/- and also interest and that award was passed finally on 07.11.2014 and when the Arbitrator has already submitted his award and when the present dispute has already been decided in arbitration proceedings. Then the present Consumer Forum has no further authority to decide the present dispute in view of the fact that complainant got such notice of the said arbitration proceedings.
Op appeared on 25.07.2014 and on 06.08.2014 it was a date of filing written version by the op. But op took time and ultimately submitted written version on 14.08.2014 and after appearance of the op before this Forum, op managed to start the said arbitration proceedings on 04.08.2014 and only for starting that proceedings, op did not file written statement note on 06.08.2014 and on 14.08.2014 op reported that arbitration proceedings has been started. But from the order of the Sole Arbitrator it is found that there is no whisper that notice of the arbitration proceeding was duly served upon the complainant and practically Paritosh Kumar Pal the Arbitrator is well known person as Arbitrator many cases in which passed such award without serving actual notice properly and in the present award there is no such document to show that notice was served by the Arbitrator and notice was duly served upon the complainant. In the field of arbitration proceeding Paritosh Kumar Pal is well known arbitrator whose dishonest act in respect of arbitrator proceeding is well known even to many Hon’ble Courts and from the arbitration order it is found that there is no whisper that complainant received notice of arbitration proceeding but did not appear, whatever it may be when arbitration award has been passed by such well known person Paritosh Kumar Pal, there is no other alternative on the part of the complainant but to file such appeal against that order before the Court of Chief Judge, City Civil Court for redressal and this Forum cannot declare that said award is invalid and in the above circumstances we are convinced to hold that the present Forum’s power to decide this consumer dispute is curtailed due to existence of award passed by well-knownParitosh Kumar Pal in Arbitration Case No. 1063/2014 and no doubt op managed to procure the same suppressing the fact that consumer proceeding has already been started and that was not also reported to Paritosh Kumar Pal the Sole Arbitrator of Arbitration Proceeding Case No. 1063/2014.
Another factor is that from the said award, it is clear that the notice for appointment of arbitration was issued on 04.08.2014 when already op appeared before this Forum and prayed for time for filing written version and in reality HDFC Bank practiced unfair trade practiced with the present Forum and suppressed the fact that they already sent notice on 04.08.2014 and that matter ought to have been ventilated on 06.08.2014 on which date op prayed for time for filing written version and only to avoid Consumer Forum proceeding by manipulation and suppressing fact that arbitration proceeding was started and most interesting factor is that complainant was not aware of the said arbitration proceeding. But anyhow due to legal complication this Forum has no jurisdiction at this stage to decide this consumer complaint when an award rightly or wrongly had already been passed prior to disposal of this case.
So, complainant shall have to take recourse against that award before the Court of Chief Judge City Civil Court for proper relief.
In the result, the complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest against the op but without any cost.
