BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 442 of 2022
Date of Institution: 18.07.2022
Date of Decision: 12.04.2023.
Sukhdev Singh aged about 68 years son of Shri Hargobind Singh, resident of Village Malikpura, District Sirsa. ………Complainant.
Versus
Kotak Mahindra Bank Ltd. Rania Road, Near Tara Baba Kutia, Sirsa through its Branch Manager/ Authorized person.
……… Opposite party.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR………. PRESIDENT
SMT. SUKHDEEP KAUR……………..MEMBER
SH. OM PARKASH TUTEJA… ……….MEMBER
Argued by: Sh. G.S. Chahal, Advocate for complainant.
Opposite party already exparte.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred as OP).
2. In brief, the case of complainant is that in the year 2012, complainant had taken loan of Rs.6,06,807/- from op for the purchase of a combine and as per the loan agreement, the above said loan amount was to be repaid by them in eight half year installments of Rs.1,18,000/- each. That after sanction of loan, the complainant started making payment of installments to the op time to time without any default but surprisingly the op without any default on the part of complainant and without any prior notice took the matter to the Arbitrator in the year 2014. That an exparte arbitration award dated 24.12.2015 was passed by the Arbitrator vide which the complainant was held liable to pay a sum of Rs.4,55,204.89 to the op alongwith interest at the rate of 9% per annum. However, still the complainant kept on making the payments of installments regularly. It is further averred that thereafter the op also had filed an execution petition for implementation of the above said award before the Hon’ble Additional District Judge, Sirsa wherein the complainant appeared and had put the actual and factual position and had also submitted the proper calculation of the payments as per the arbitration award but the op did not appear nor furnished any other calculation as op knew that nothing was due against complainant and installments are being paid regularly and as such the execution filed by op was dismissed in default vide order dated 7.9.2019 by the Hon’ble Court of Dr. Chander Hass, the then learned Addl. District Judge, Sirsa. It is further averred that in this manner, the complainant has already deposited the full and final payment of the loan alongwith up to date interest and expenses as per the Arbitration Award dated 24.12.2015 and nothing remains due against the complainant. That complainant thereafter a number of times contacted the op in this regard and requested to issue the necessary NOC in favour of complainant and further requested to hand over the necessary and relevant documents but on all the occasions the request of complainant has gone unheard. That act and conduct on the part of op is illegal and same amounts to gross negligence, deficiency in service and unfair trade practice on account of which complainant has suffered unnecessary harassment and mental agony. That complainant also got issued a registered legal notice on 24.07.2020 to the op to issue the NOC and documents but to no effect. Hence, this complaint.
3. Notice of the complaint was issued to the op through registered cover but none appeared on behalf of op and as such op was proceeded against exparte.
4. Complainant in his exparte evidence has tendered his affidavit Ex. CW1/A and copies of documents i.e. application for execution of decree/ award alongwith order dated 07.09.2019 Ex.C1, legal notice Ex.C2, postal receipt Ex.C3, registered cover Ex.C4, arbitrator award Ex.C5, certificate of registration Ex.C6, statements of accounts Ex.C7, Ex.C8 and calculation Ex.C9.
5. We have heard learned counsel for complainant and have perused the case file.
6. There is no dispute that an arbitration award on the subject matter between the parties has already been passed by the Arbitrator on 24.12.2015, copy of which is placed on file by complainant as Ex.C5. In this regard learned counsel for the complainant contended that Arbitration Award was passed by the Arbitrator on 24.12.2015 without giving notice to the complainant. But however, in a similar matter the Hon’ble State Consumer Disputes Redressal Commission Shimla in case titled as Ajay Vir Singh vs. HDB Financial Services Ltd. & Ors. in CC No. 06/2017 and Misc. Appl. No. 319 of 2017 decided on 13.07.2017 has held that we are of the opinion that if the complainant is aggrieved against the final Arbitration Award then complainant should approach before the competent authority of law for setting aside the award under Arbitration and Conciliation Act, 1996. It is held that final Award passed by Arbitrator under Arbitration and Conciliation Act 1996 could not be set aside by Consumer Fora under Consumer Protection Act, 1986. Arbitration and Conciliation Act 1996 is a special Act and remedy is also provided under special Act. It is further held that it is well settled law that if parties approach both the forums created under Arbitration and Conciliation Act 1996 and M.N. No. 319/2017 in CC No.06/23017 under Consumer Protection Act 1986 qua same matter then Consumer Fora can refuse to proceed in order to avoid conflicting orders.” The above said authority is fully applicable to the facts of the present case and as the award has already been passed by the Arbitrator on the similar matter, therefore, this complaint is not maintainable before this Commission.
7. In view of above, the present complaint is hereby dismissed being not maintainable before this Commission but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 12.04.2023. District Consumer Disputes
Redressal Commission, Sirsa.
