O R D E R

Per Smt. T.SUNEETHA , MEMBER

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking directions on the opposite party to hand over the auto goods vehicle to the complainant along with two cheques bearing No.555483 & 555484 besides compensation of Rs.3,00,000/- and other costs.       

2.   In brief the averments of the complaint are these:

The complainant purchased an auto goods vehicle by name Mahindra Maximo from Pioneer Auto World Pvt. Ltd., Guntur on            22-01-2013 for an amount of Rs.3,38,313/-.  The opposite party provided loan at the place of Pioneer Auto World Pvt.,Ltd., Guntur by collecting Rs.37,000/- as down payment, Rs.5,500/- for document charges on 22-01-13 and fixed E.M.I @ Rs.10,926/-.  The complainant expressed his inability to produce cheques of his own as he has no bank account.  The opposite party stated that they will accept the cheques of the father of the complainant and later they would take the posted date cheques of the complainant.  party took six post dated cheques and three empty cheques from the father of the complainant.  The complainant is depositing the E.M.I amount in the State Bank of Hyderabad, Tobacco Board Branch, Guntur regularly and the same is withdrawn by the opposite party.  After paying the sixth E.M.I the complainant requested the opposite party to take the signed post dated cheques of himself and to return the remaining cheques of his father.  The opposite party postponing the matter on one pretext or the other. 

The complainant is depositing the E.M.I in State Bank of Hyderabad, Tobacco Board branch, Guntur, but the opposite party with mallified intention has not withdrawn the E.M.I from the bank of remaining two cheques which are available with him asking the complainant to give cash.  The opposite party has send notices to the complainant to clear the outstanding due amount which is illegal, unethical and unfair on the part of opposite party. 

The opposite party on 18-02-14 has sent three persons to complainant’s house who threatened the complainant and his family members to pay the E.M.I amount or they would take the vehicle.  They have taken a report from the complainant in which he stated  to return the cheques of his father and take his cheques.

 On 04-03-14 the opposite party again sent six persons to the house of the complainant who abused the complainant and his family members in filthy language and they have touched their caste and taken away the vehicle illegally and unethically. The complainant lodged a complaint in old Guntur police station but they have not taken any action.  Therefore the opposite party committed  deficiency of service .  Hence the complaint.        

3.      Version filed by the opposite party which is in brief as follows:

          The complaint filed by the complainant is not maintainable either in Law or on facts.  As per the clause 10.16 of the loan agreement executed by the complainant and his guarantor with the bank the dispute is to be referred to arbitrator and the clause is produced here under: 

“……. Any and all claims and disputes arising out of or in connection with this agreement or its performance shall be settled by Single Arbitrator  to be appointed by the Bank.  The arbitration shall be held, in Chennai, in accordance with the provisions of the Arbitration and Conciliation Act, 1996”.  This opposite party filed I.A.No.   /2014 application under section 8 of Arbitration Act along with Notarized agreement copy and stating the facts that the parties to the agreement are governed by the Arbitration agreement and requested to refer the matter to Arbitration and the in view of the above clause, the complaint is not maintainable and this Hon’ble Forum has no jurisdiction to entertain the complaint and as such the complaint is liable to be dismissed on this ground also. 

        The complainant and his father signed the agreement as barrower and co-barrower. Since the complainant has no bank account in his name and requested to accept the post-dated EMI cheques of his father who is a co-borrower for the first seven months and two cheques as security to the loan amount taken by the complainant and mentioned the loan amount on those cheques.  The EMI was fixed @ Rs.10,926/- per month.  Accordingly the opposite party Bank has deposited seven cheques mentioned above drawn on State Bank of Hyderabad, tobacco board branch, Guntur for Rs.10,926/- per month.  Thus the loan payment was cleared for the period 06-03-13 to 06-09-13 i.e. for seven months.  It is not true to say that the complainant offered his bank account cheques and requested to return the post dated cheques which were kept as security and the opposite party is dodging the matter without depositing the remaining two cheques of his father.  It is not true that the people of opposite party requested the complainant to pay cash to them.  It is true the representative of the bank visited the complainant house and intimated that he has to deposit 28 post dated cheques for the remaining installments and requested him to do so.  It is true that the opposite party deposited seven cheques and withdrawn from the account of the complainant’s father.  It  is against the policy to deposit the remaining two cheques which were given as security purpose.

            The notices were sent to the complainant as per the procedure of the bank intimating the current due amount payable by complainant to the opposite party bank.  The opposite party has sent  a notice dated   04-11-13 to clear the outstanding amount of eight installments and the complainant kept quite.  Later on 06-01-14 the opposite party has sent repossession notice dated 06-01-14 as final notice to repay the outstanding amount for the 8^th, 9^th and 10^th installments and there was no reply from the complainant.  The opposite party bank ceased the vehicle and brought back to the yard of the opposite party at Vijayawada.  But it is not true that the people who went to cease the vehicle threatened the complainant and his family members and had taken a report from the complainant as such he requested to return the cheques of his father.

           On 04-03-14 the opposite party bank has sent a letter showing the outstanding payable and requested to pay the arrears and take that vehicle which was kept with them and if he fails the vehicle will be auctioned and adjust the same to the loan account and he has to pay the balance amount along with interest and other expenses.  Again on 11-03-14 the opposite party bank sent has sent a letter that the bid amount was came for Rs.80,000 /- and the complainant has to pay the balance amount on 04-03-14.  The opposite party has informed about highest bid offer received by the opposite party and to bring a buyer with the better quote from any person, through a letter dated 11-03-14.  The complainant is running the goods auto for his commercial purpose as such the complainant is not a consumer under the Consumer Protection Act.  The Hon’ble Forum may be pleased to dismiss the present complaint by imposing heavy cost.      

4.      The complainant and opposite party filed their respective affidavits. Exs.A-1 to A-15 were marked on behalf of the complainant and  Exs.B-1 to B-9 were marked on behalf of opposite party. 

5. Now the points that arose for consideration in this complaint are:

        1.     Whether the complaint has jurisdiction to this Forum?

        2.     Whether the opposite party committed deficiency of                                 service?

        3.     To What relief?

6.    POINT NO.1:-  The opposite party in his affidavit dated                        17-06-14 has stated that the repossessed vehicle was stationed in the authorized parking yard of the bank i.e., opposite party at Guntur. The part of cause of action took place at Guntur branch office of opposite party. Therefore, this complaint comes under the jurisdiction of this Forum.        

      The learned counsel for the opposite party relied on the decision reported in 2012 (4) CPR 15 (GOA) to out the jurisdiction of this Forum.   The learned counsel for the complainant on the other hand, contended that the complainant can choose any Forum of his choice to ventilate his grievance.

      Ex.B-1 is copy of loan cum guarantee agreement executed by the complainant and his guarantors.   Clause 11.6 of Ex.B-1 reads as follows:

       “Unless the same falls within the jurisdiction of Debts Recovery Tribunal established under the Recovery of Debts due to banks and Financial Institutions Act, 1993, any and all claims and disputes arising out of or in connection with this agreement or its performance shall be settled by arbitration by a single arbitrator to be appointed by the bank.   The arbitration shall be held, in Chennai, in accordance with the provisions of the Arbitration and Conciliation Act, 1996”.             

As rightly contended by the opposite party Ex.B-1 agreement contained an arbitration clause.

In Prasad K. Amonkar vs. S.K. Land Developers & Others (2012 (4) CPR 15 (Goa) it was held:

“The Consumer Protection Act, 1986 is not in derogation of section 8 of the 1996 Act.   The 1996 Act being a special law and having been enacted later in point of time ought to prevail over the provisions of C.P.Act, 1986.   Seciton 8 of the 1996 Act is preemptory and casts an obligation on the juridical authority to refer the parties to arbitration.  The pre-requisites of section 8 are satisfied in this case and the said pre-requisites having been satisfied, this commission has no other option but refer the dispute to arbitration and this may have the effect of ousting the jurisdiction of the commission by necessary implication.   The first choice of the parties, in the event of dispute, chosen by them is by way of a settlement through an arbitrator.  The parties therefore, are required to adhere to their first choice.   In view of the above discussion, and considering the mandate of Section 8 of the 1996 Act, we hereby direct the parties to act in terms of the said agreement between them by referring the present dispute to arbitration.  With the above observations, we allow the application under consideration and proceed to dismiss the complaint with no order as to costs”.

In DLF Limited and others vs. Mridul Estate (Pvt) Limited and others (2013 (2) CPR 756 (NC) it was held that consumer Fora are not bound to refer dispute to arbitrary tribunal in terms of valid arbitration agreement.

In view of the above decision of the National Consumer Disputes Redressal Commission, we are of the opinion that the Consumer Forum have jurisdiction to entertain the case even in the presence of arbitration clause.   The said contention of the opposite party is devoid of merit.

POINT NO.2:- The complainant obtained loan of Rs.3,04,000/- payable in 35 installments @ Rs.10,926/- The opposite party obtained nine cheques from the complainant  out of which realized seven cheques under seven installments between 06-03-13 to 06-09-13.

         The complainant alleged that opposite party without realizing the remaining two cheques illegally seized the vehicle .

         The opposite party took nine cheques from the complainant at the time of agreement and encashed 7 cheques out of 9 . The opposite party stated that they have intimated to the complainant that the two cheques were kept as security .  

          Admittedly, the opposite party encashed only 7 cheques from out of 9 cheques  by father of the complainant being co-barrower.  

            The learned counsel for the opposite party did not bring any such clause to the notice of this Forum about the opposite parties right to retain some cheques given by either borrower or co-barrower as a security.

        The contention of the opposite party  that the opposite party kept those two cheques as a security for the loan sanctioned ,has no locus standi in view of Ex.B-1 agreement.

        Ex.A-11 is schedule of loan agreement deal with payment of installments.   The complainant has to pay 10926/- on or before 5^th of every month commencing from 05-03-13. 

        The opposite party on 04-11-13 got issued a notice to the complainant to clear outstanding amount of Rs.10,926/- as seen from Ex.A-12.   Ex.A-13 is another notice dated 06-01-14 given by the opposite party not only to the complainant but also his borrowers requiring them to clear outstanding dues of Rs.32,778/- to avoid further action as per agreement.   The contention of the learned counsel for the complainant that the opposite parties ought to have presented those two cheques in respect of the installments falling due on 05-10-13 and 05-11-13 is having considerable force.   The opposite parties in our considered opinion committed an error in not presenting those two cheques given by guarantor of the complainant towards the said installments.

        The opposite party kept quite till another installment falling due on 5^th December, 2013 and gave Ex.A-13 consolidated notice claiming Rs.32,778/- (10926x3).   In Ex.A-13 the opposite party mentioned the following:

      “Repeated Reminders given this is final notice to clear outstanding Rs.32,778/- in Agreement TFE – 1838534 to avoid further action as per agreement entered between us at your cost and consequences”. 

Inspite of notices the complainant for the reasons best known to him did not respond in writing to Ex.A-12 and A-13 notices. The complainant ought to have given some more post dated cheques for the installments due by him . The opposite parties further issuing Ex.A-13 notice only took possession of the hypothecated auto.   Even before the sale also the opposite party issued Ex.A-14 notice .

      Under those circumstances, the opposite party repossessing hypothecated auto after Ex.A-13 notice and selling vehicle in auction subsequent to Ex.A-4 notice in our considered opinion did not constitute deficiency in service.   We therefore held this point against the complainant.

          POINT NO.3:- The opposite party did not commit any deficiency of service in repossessing the vehicle. Therefore complainant is not entitled for any compensation from the opposite party.

9. In the result, the complaint is dismissed without costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 18^th day of July, 2014.

Sd/-XXX                                  Sd/-XXX                                  Sd/-XXX

MEMBER                                  MEMBER                                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:   

                                                                                                                     Sd/-XXX    

   PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.