Order-28.
Date-30/09/2015.
In this complaint Complainant Pappu Ray by filing this complaint has submitted that he took a second hand vehicle from Sukumar Nandi of 65 B.M.M Lane Champdani, Baidyabati, Hooghly and got financed on vehicle as loan of Rs.7,25,000/- from the op namely Indusind Bank Ltd. dated 27.06.2012 having Registration No. WB-15A-4855, Engine No. 697TC57BSZ108626, Chasis No. 444026BSZ107092 and Vehicle Type – LPT2515 and was plying the same.
At the time of the Loan Agreement the complainant was charged with an interest (fixed) by EMI and as such the complainant was lawfully abiding the laws, plying the dues to the op.Op agreed to adjust payment of installments made as per reducing balance system but after disbursement of the loan not adjusting the installments as per reducing balance and claiming interest over the amount paid as loan for the total amount till up to the last date of payment at flat rate.
The said vehicle was insured with the Insurance Company op realized charges for Insurances of the said vehicle and also prepared other documents related to the said vehicle.But op did not invest the amount for Insurance and other purposes of the vehicle before the Insurance Authority but the complainant had to pay the insurances charges and registration charges from his own pocket and for the said reason he had to pay further investment of Rs.50,000/-.Subsequently the vehicle met an accident and the complainant asked the op to hand over the Insurance paper, but the op did not pay any interest and avoided and did not hand over the documents and lastly finding no other alternative complainant repaired his vehicle for which complainant incurred huge amount and no Insurance claim was made due to negligence of the op.
Complainant sent an Advocate letter regarding the Insurance paper for which complainant made the payment and his claim was the genuine one and was not released and he has to bear the loss having no fault and subsequently op has seized thrice the vehicle and after taking illegal charges vehicle was released.
The said vehicle was plying through 35, Burman Road, Kolkata-700001, P.S.- Bowbazar when a group of person tried to forcefully took possession of the said vehicle through the help of few muscleman/gundus/antisocial elements and the driver of the said vehicle skillfully drove the vehicle and somehow rescued the said for the time being but it was threat ended that the said vehicle will be seized at any point of time.
Thereafter complainant reported the matter to the Bowbazar P.S. lodging a written complaint to the said P.S. but that P.S. refused to accept the same and they advised to seek help from the appropriate Forum.Complainant states that the said vehicle would be forcefully seized at any point of time and on the part of the ops if said attempt is made successful, then the complainant shall have to suffer loss, injury and also shall have to suffer financial loss.Complainant through his Ld. Advocate wrote a letter to the op regarding the problem created by the recovery agent of the bank about the difficulties what complainant had to face during transits.
In the above circumstances, complainant for justice and for negligent and deficient manner of service and illegal act prayed for relief and for adopting unfair trade practice.
On the other hand op by filing written statement submitted that the present complaint is not maintainable against op and intentionally and with malafide intention complainant has made a party, knowing fully well that the loan was granted from separate division of the op having its office at 41, Shekespeare Sarani, Kolkata -700017 not from the op’s office at 8, Lyons Range, Kolkata is out of the jurisdiction.Loan is granted from separate division and there is two separate division of Indusind Bank Ltd. and in the eye of law Indusind Bank Ltd. cannot be made a party.
Moreover as per Agreement, there is an Arbitration Agreement in between the parties with the separate division and to resolve the dispute by Arbitration it may be referred to Arbitrator.Fact remains that complainant in the month of Sept. 2012 approached to Indusind Bank Ltd. Consumer Finance Division at its office at 41, Shakespeare Sarani, Kolkata – 700017 showing his desirous of purchasing one number of LPT 2515 TC vehicle and approached the bank for financial assistance of Rs. 7,25,000/- and complainant was willing to pay interest as required for availing of the loan facility and complainant also agreed to abide by the terms of the contract and complainant obtained financial assistance from the said division and executed loan agreement dated 12.09.2012 one Loan Agreement in between the Indusind Bank Ltd. as the hirer and the complainant as borrower and one Manoj Kumar Yadav as the Co-Borrower/Guarantor and in terms of the Loan Agreement bearing No.WCC00932D, dated 12.09.2012, the parties of the loan agreement willfully agreed to resolve all disputes arising or touching by or under the Agreement through Arbitration under Arbitration and Conciliation Act, 1996. So, the dispute should be referred to the Arbitrator at Chennai.
Truth is that the vehicle was hypothecated or charged in favour of the complainant as security towards repayment of the outstanding dues of the complainant in terms of the said Agreement and the said Deed of Hypothecation Cum Loan Agreement dated 12.09.2012 was executed and as per agreement complainant was required to pay the principal amount of Rs. 7,25,000/- along with interest 9 percent p.a. and it must be paid in equal 42 equated monthly installments.But complainant failed and neglected to repay the installment in terms of the agreement and for which agreement stood terminated ipso facto and the consumer division, Indusind Bank Ltd. has issued one notice dated 21.03.2014 terminating the loan agreement dated 12.09.2012 and he is entitled to recover the entire remaining balance which was payable by the complainant in terms of the said agreement.
Bank made several requests/reminders to the complainant to make payment but complainant refused to pay the aforesaid sum and as because there is Arbitration clause whereas all disputes and differences arising out of touching the issues arising out from this agreement and it shall be referred to arbitration in accordance with the said agreement under Arbitration and Conciliation Act, 1996.The present complaint is not maintainable and in the meantime the matter was referred to Arbitrator and Ld. Arbitrator Shri Jayachandra Babu was pleased to pass award dated 18.06.2014 which was duly served upon the complainant and complainant has no knowledge of Indusind Bank Ltd./op and when the Arbitrator passed such award on 18.06.2014, the present complaint is barred under Section 5 of the Arbitration and Conciliation Act, 1996.Moreover as per Section-8 of the Arbitration and Conciliation Act, 1996 contains a mandatory provision to that effect that if proceedings are instituted before Judicial authority in respect of which there is an existence of Arbitration Clause, then it shall be referred to the Arbitration Authority.In the above circumstances, the complaint should be dismissed.
Decision with reasons
On proper consideration of the complaint and written version and also considering the argument as advanced by the Ld. Lawyers of both the parties and further on overall assessment of the document and particularly the award of Sole Arbitrator Shri Jayachandara Babu Advocate Chennai dated 18.06.2014, it is clear that arbitration proceeding had already been completed and award has been passed against Pappu Ray and when award has already been passed by the Sole Arbitrator, then the dispute has already been decided as per terms of the agreement of loan and it is mandatory provision of law if there is any award of Arbitrator, the Consumer Forum has no further authority to decide the same and as per provision of Section-5 read with Section-8 of the Arbitration and Reconciliation Act, 1996 – no court or judicial authority or any authority can verify the genuinity of the award, in respect of same matter either in Civil or Quasi Judicial Authority if there is already Arbitration award so such a proceeding is not maintainable but only remedy is to file Appeal before Principal Civil Judge of a district.
In the present case, it is proved that Arbitration award had already been passed on 13.06.2014 and copy of the same was sent by Speed Post to the complainant.So, under any circumstances regarding that vehicle, regarding loan agreement, regarding hypothecation agreement, no question can be challenged before this Forum because this Forum has no authority to decide. As per Arbitration Clause Arbitrator also a competent authority like quasi judicial authority.When it is proved that the award has been passed on 13.06.2014 and that had already been sent by Speed Post, the present complaint is not maintainable in view of the fact that this Forum has no jurisdiction to decide the present dispute because that dispute had already been decided by the Arbitrator and Arbitration award is final where no challenged as yet.
In fact this Arbitration Proceeding was started on 12.05.2014 and this complaint was filed on 19.12.2013.But whatever it may be during continuation of this proceeding Arbitration award has been passed.So, there is no scope to decide the dispute under any circumstances, and it has created a bar under Section 5 & 8 of Arbitration and Reconciliation Act 1996 and in the result at this stage the present complaint is not maintainable and this Forum has no jurisdiction to bypass that award of the Arbitrator and at the same time it is truth that complainant was a defaulter and habitual defaulter and as per National Commission Judgement passed in RP No. 3319/2012 as per Hire Purchase Agreement the financer is authorised to repossess the vehicle in case of default, in case of failure of payment of loan installment and Hon’ble Supreme Court passed such judgement in Managing Director Oric Auto Finance India Ltd. has already decided that financer may repossess the financed vehicle. Mere fact is that possession was taken by the financer cannot be the ground to contend the hirer is prejudiced.
In the result, the present complaint is not maintainable for which the complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest without any cost against the ops.
