23.12.2014.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 05.04.2013 allowing the same on contest against the O.P. with cost of Rs.10,000/- directing the O.P. to pay a sum of Rs.2,22,432/- as valuation of the vehicle in question in favour of the Complainant within one month from the date of judgment, to pay a sum of Rs.50,000/- towards loss of income along with a further direction to pay a sum of Rs.1,50,000/- in favour of the Complainant towards his mental pain and agony.  The O.P. was further directed to liquidate all the above mentioned decretal amount in favour of the Complainant within one month from the date of judgment failing which the Complainant was to recover the said amount along with interest @ 10% p.a. to be calculated on and from the date of filing of this case till the date of recovery of the entire decretal amount by filing a separate proceeding against the O.P. as per provision of law.  The O.P. was also directed to deposit a sum of Rs.20,000/- only with the State Consumer Welfare Fund within one month from this date, failing which the concerned authority of State Consumer Welfare Fund would be at liberty to recover the said amount along with interest @ 10% p.a. to be calculated on and from 05.04.2013 till the date of realization of the said amount from the O.P. by filing a separate proceeding as per provision of law.

Being aggrieved by the impugned order the O.P. has preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum ought to have considered that an award had already been passed through arbitration proceedings and further a huge amount has been lying unpaid which is payable by the Complainant.

The case of the Complainant, in short, is that he entered into a Hire Purchase Agreement with the Tata Motors Finance Ltd., Siliguri for the purpose of financial assistance in respect of a vehicle (Tata 207 DI) bearing Registration No. WB-73B-8905 and, accordingly, the Equated Monthly Instalment for repayment of the loan was fixed as Rs.12,900/-.  The vehicle was delivered to him.  The Complainant has stated that he paid the EMI off and on but the O.P. – financer repossessed the said vehicle on 23.08.2012 using muscle power.  The Complainant lodged a complaint with the Moynaguri P.S. by Speed Post with A/D and subsequently, in connection of which the said P.S. was directed to take up the investigation by the Ld. C.J.M., Jalpaiguri.  However, the O.P. on 24.08.2013 informed the Complainant by a telegram that the vehicle in question has been repossessed due to non-payment of the EMI as per terms of hire purchase agreement and again, on 30.08.2012 the O.P. wrote a letter asking him to pay all outstanding amount within 48 hours from the date of receipt of the notice failing which the O.P. would sell the vehicle on ‘as is where is’ basis and would also take steps for recovery of the shortfall amount, if any.  The Complainant has further stated that due to this whimsical activities of the O.P. – financier the Complainant along with his family members were put into trouble since the earning of his livelihood had been ceased and as such the Complainant filed the petition of complaint before the Ld. District Forum praying for direction upon the O.P. to return the vehicle 207 DI (Pick up Van) (Engine No: 497SP28GZY630649 & Chassis No. MAT478011A9G22125) bearing Registration No. WB-73B-8905 which has been repossessed illegally by muscle power, to pay a sum of Rs.50,000/- to the Complainant for the loss of income, to pay a sum of Rs.1,50,000/- towards mental pain and agony and to pay to the Complainant a sum of Rs.30,000/- as litigation cost.

It appears from the record that the O.P. contested the case and filed Written Version denying and disputing the material allegations.

In course of hearing of the appeal Ld. Advocate for the Appellant has submitted that the vehicle in question had been repossessed and, thereafter, sold to a third party.  Ld. Advocate has further submitted that an Arbitration award was passed on 13.07.2012 in that matter but the Respondent – Complainant did not appear before the Ld. Arbitrator though notice was served upon him.  Ld. Advocate for the Appellant has specifically mentioned that the jurisdiction of the Ld. District Forum ceased to exist since the petition of complaint was filed on 05.11.2012 which is subsequent date of passing the award by the Ld. Arbitrator.  Ld. Advocate for the Appellant has further submitted that presale notice was issued to the Complainant in respect of the repossessed vehicle and thereafter the said vehicle was sold.  In support of his contention Ld. Advocate for the Appellant has relied upon the following decisions:- 

(1)     I (2014) CPJ 221 (WB) – ICICI Bank Ltd. – vs. – Majed Khan.

(2)     I (2007) CPJ 34 NC – Instalment Supply Ltd. – vs. – Kangra Ex-Serviceman Transport.

(3)     II (2014) CPJ 87 (NC) – Jasobanta Narayan Ram – vs. –  L. & T. Finance Limited.

(4)     S.C. Case No. FA/385/2013 – The Indusind Bank Limited, Balurghat Office & Anr. – vs. – Mr. Titas Sarkar, State Commission, West Bengal.

Ld. Advocate for the Respondent – Complainant has submitted that no pre-repossession notice was served upon the Complainant, only the pre-sale notice has been served and, therefore, the repossession of the vehicle was very much illegal. 

Having heard submissions and on perusal of the record it appears that the arbitral award was passed on 13.07.2012 and filing the complaint case before the Ld. District Forum on 05.11.2012 is a subsequent event.  Now, the moot point is whether the Ld. District Forum had the jurisdiction to entertain the complaint case after passing arbitral award by the competent authority.  In this context we rely upon the decision of the Hon’ble National Commission reported in [2006 (3) CPR 339 (NC) – The Installment Supply Ltd. – vs. – Kangra Ex Serviceman Transport Co. and Anorther] wherein the Hon’ble National Commission was pleased to hold that a complaint cannot be decided by the consumer fora after an arbitration award is already passed. 

In such view of the matter, we are of opinion that the petition of complaint is not maintainable under the C. P. Act since the arbitral award was passed before filing the petition of complaint before the Ld. District Forum.  The Ld. District Forum was not justified in allowing the complaint.

In the result, the appeal succeeds.

Hence, ORDERED that the appeal is allowed on contest without cost.  The impugned judgment is set aside.  The petition of complaint is dismissed.