JUDGEMENT

          Complainant by filing this complaint has submitted that he is the owner of a vehicle bearing Registration No. WB-06-C-7097, Model No. TATA Indica Vista Terra TDI, and complainant purchased the same in the name of his partnership firm namely M/s A.B. Enterprise and at the time of purchase, complainant availed of a car loan facility from HDFC Bank, Malancha Branch, Kolkata and his car loan account number is 15973691 and total sum of Rs. 3,84,091/- was sanctioned out of that a sum of Rs. 3,67,622/- was disbursed and EMI amount was Rs. 12,249/- per month and payment period was for 36 months and as per terms and conditions of the said loan, complainant paid more than 90% amount of the principal amount and interest to HDFC Bank month by month in respect of his car loan.

          Suddenly on 02.10.2012 the agents of the op/Bank trespassed into the said premises of the complainant and forcibly took away the said car illegally after abusing and physically assaulting the complainant.  To that effect complainant lodged a police case at local police station.  Thereafter complainant went the office of the HDFC Bank and requested to the concerned officer of the bank to return back the vehicle.  Thereafter complainant went to the local Jadavpur Police Station on 18.10.2012 and lodged a written complaint against the op/Bank and subsequently complainant after collecting a sum of Rs. 1,14,000/- deposited to the said bank as per discussion with the op/bank’s officers in respect of the said car loan account.  On good faith complainant deposited the same but on receipt of the said amount HDFC Bank neglected to handover the same.  After that on 17.11.2012 it was found that the said car was lying in open area at Guha Parking at Saktigarh, Burdwan without proper care and safety and security and on that day the said car was found damaged condition in open area.  But op forced to sign in paper at delivery receipt and complainant without finding no other alternative received it by signing. 

          Somehow complainant brought the car by pushing and by towing the said car complainant paid the tow charges a sum of Rs.2,700/-.  Thereafter it was repaired and a sum of Rs. 44,975/- was paid to make it roadable and on 18.11.2012 complainant narrated the entire incident to Jadavpur Police Station and fact remains op by adopting unfair trade practice and as service provider has so many way harassed the complainant for which this complaint is filed for redressal.

          On the other hand op/HDFC Bank by filing written version has submitted that the complaint is not maintainable because complaint has not filed by A.B. Enterprise because loan was granted to A.B. Enterprise and it is further submitted that due to non-payment of EMIs for outstanding dues as per hire purchase  agreement op has legal right to repossess it and moreover Arbitration proceedings was started and complainant did not appear on behalf of the  A.B. Enterprise and for which Arbitrator passed award and published it on 27.08.2012 and as per that order, complainant repossessed the same.  So, there was no negligence and deficiency on the part of the op.

          Further it is submitted that complainant at the time of receipt of complaint of the said car which was repossessed by the op signed in the delivery receipt and did not make any allegation about any damage etc.  But it was reported to the op after lapse of 7 days which is concocted one and moreover as per law the financer has the right to take away for non-payment of installment and in this regard op did not act negligently and for which the complaint should be dismissed because negligence and deficiency on the part of the op is not proved.

                                                     Decision with reasons

          On in depth study of the complaint and written version it is clear that A.B. Enterprise took loan from the HDFC/Bank against loan agreement No.15973691.  Truth is that the complaint is filed by Biswanath Roy claiming that he is the owner of the vehicle but it is found that the said car was purchased in the name of A.B. Enterprise and A.B. Enterprise took loan and Abhijit Roy also one of the partners who signed in the loan agreement and Biswajit Roy filed this complaint.  So, there is some technical defect in respect of filing this complaint by Biswajit Roy claiming as owner. 

          Moreover it is undisputed as it has not been challenged by the complainant that already as per said hire purchase loan agreement arbitration proceedings was started as per Arbitration Clause of the said agreement and award has already been passed against the A.B. Enterprise and it was published already.  So, the matter in dispute of the complaint has already been adjudicated by the competent authority, the Arbitrator as per Arbitration Clause of the said Hire Purchase Loan Agreement and in the said Hire Purchase Loan Agreement as partners Abhijit Roy signed in the said agreement but not Biswajit Roy and no document in support of partnership firm is filed by the complainant and fact remains the loan agreement was executed on 16.01.2010 and from the complaint, it is clear that he was the defaulter for which he deposited Rs. 1,14,000/- to the HDFC Bank when it was repossessed by the op.

          So, considering that fact, it is clear that the dispute has already been adjudicated by the Arbitrator the competent authority as per provision of Arbitration & Conciliation Act and so after that verdict of the Arbitrator, complainant cannot move before this Forum and it is completely barred by res-judicata.  At the same time as per observation of Hon’ble Supreme Court in Suryapal Singh – Vs – Siddha Vinayak Motors & Anr reported in II (2012) CPJ 8 (SC) it is clear that the financer is the real owner of the vehicle and a person who takes the loan retains the vehicle only as Bailee/Trustee.  The financer has right to repossess the vehicle for non-payment of his installments and it is also observed by the Hon’ble Supreme Court that in a Hire Purchase Loan Agreement the financer has the right to possess the vehicle from the person who takes as Bailee/Trustee and in view of the above findings of the Hon’ble Supreme Court it is clear that the A.B. Enterprise is not the owner of the vehicle but op is owner of the vehicle in the present particular case and in view of the above legal position and also consulting the judgement passed by the Arbitrator in the month of August-2012 and publication of the same present complainant’s right even as partner of A.B. Enterprise is not maintainable before this Forum and in view of the above findings the present complaint bears no merit in the eye of law and it is barred by principal of res-judicata in view of the fact another competent authority that the arbitration has started in between the parties by way of after publishing the same award has been passed by the Arbitrator against the A.B. Enterprise.

          In the result, the complaint fails.

          Hence, it is

                                                              ORDERED

          That the complaint be and the same is dismissed on contest against op but without any cost.