CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)x
New Delhi – 110 016
Case No. 41/2011
SH. GULSHAN SAINI,
S/O LATE SH. VED PRAKASH
R/O H.NO. B-263, M.I.G FLATS,
EAST OF LONI ROAD, DELHI
THROUGH ATTORNEY SH. KULBHUSHAN SAINI
………. COMPLAINANT
Vs.
M/S.MAGMA FINCORP LIMITED
R/O 193, OKHALA INDUSTRIAL AREA,
OPP. POLICE STATION, PHASE-I, DELHI
………….RESPONDENTS
Date of Order: 12/12/2018
O R D E R
Ritu Garodia-Member
The complainant entered into an agreement with OP for financing two commercial vehicles namely HR 38K 6329 and HR 38K 6331. The loan commenced on 1/10/2004 with an EMI of Rs. 49,320/-. It is stated that the complainant has paid Rs. 22,72,387/- and Rs.94,973/- was outstanding as per the statement of account. The complainant also paid Rs.50,000/- to OP on 8/11/2008 and Rs.5,000/- on 31/1/2009. It is alleged that Rs.94,973/- was additional amount credited by OP as interest charges.
On 17/12/2012 the truck bearing no. HR38 K6329 was coming from Orissa. It was taken into possession by OP at Rachi with the help of local police. A complaint was made to the police station and FIR was lodged. A final report was also submitted by the I.O. stating that the vehicle is untraced.
It is alleged that the vehicle was forcibly taken from possession of the complainant. He was also threatened by OP that his other vehicle would also be taken into possession. The complainant received a notice from OP on 21/12/2010. The complainant prays that the vehicle bearing registration no. HR38K 6329 be handed over to OP. The complainant has filed receipt dated 8/11/2008, 31/1/2009, statement of account, complaint made to the police, FIR dated 18/12/2010, notice for appointment of arbitrator and letter sent by arbitrator to both the parties.
OP in its reply has stated that the arbitration award was passed by the sole arbitrator Shri Pinaki Narayan Ganguly at Calcutta on 28/2/2011. It is stated that award allowed the claim of Rs. 3,96,527/- in favour of OP.
The complainant in his rejoinder has stated that he has given a detailed reply to the OP before the arbitrator. It is alleged that the sole arbitrator has no jurisdiction to pass any award. It is also stated that he received a legal notice by OP dated 16/6/2010 to clear the dues of 39,973/-.
We have considered that pleadings and documents filed by both the parties. The statement of account shows that the agreement was for commercial vehicles. The loan commenced on 1/10/2004 with termination date of 1/8/2008. It also shows that total amount received from the complainant is 22,68,720/-. The statement further shows that Rs.94,973/- were due and pending on 1/8/2008.
It is admitted by the complainant that he paid Rs. 50,000/- on 8/11/2008 and 5000/- on 31/1/2009. It is also admitted that he received a legal notice for balance payment of Rs.39,973/- on 16/6/2010. Subsequently, one of the vehicle bearing no. HR38K 6329 was taken into possession by OP on the intervening night of 17/12/2010 and 18/12/2008. FIR dated 18/12/2010 was also registered. The complainant received a proposal sent by OP to the sole arbitrator MR. Pinaki Narayan Ganguly dated 20/12/2010 which is as follows:-
Dear Sir,
Sub: Arbitration Agreement contained in the Hire Purchase Finance Agreement dated 17/09/2004
Pursuant to execution of the above-referred Agreement between ourselves and Gulshan Saini, Manish Saini, Ramesh Kumar and Kulbhushan Saini ( referred to therein as the ‘Hirer’. ‘Co-Hirer’ and ‘Guarantor’ respectively), 2 (two) Nos. Of TATA/LPT 2515 Ex were let out on hire to Gulshan Saini subject to payment of the monthly installments as stipulated in the said Agreement. Due to default in payment of dues and policy complaint made by the hirer as below, irreconcilable disputes and/or difference having arisen between the parties.
We have, as per Clause 14(i) (p) of the said agreement, taken possession of one of the subject vehicles, namely, having Reg. No HR38K 6329 on 18th December,2010. After repossession over the said vehicle the hirer had lodged a complaint before Namkum Police station, Ranchi, Jharkhand and after receiving of that complaint vehicle has been seized by the said police station and presently the vehicle is lying with Namkum police station.
In terms of the Arbitration Agreement we hereby appoint you as the Arbitrator to adjudicate the said disputes and/or differences and also praying for immediate possession of the other vehicle having reg. No. HR38K 6331.
Notice dated 20.12.2010 regarding appointment of Sole Arbitrator was issued and copy was sent to the complaint also. It is admitted by the complainant that he had filed a detailed reply before the arbitrator in the month of February 2011. It is also stated by the complainant that the order passed by the arbitrator is illegal.
Hon’ble National Commission in M/S. Manas Construction vs L&T Finance Ltd. & Anr. has observed that I fully agree with the observation of the State Commission that the complainant cannot proceed under two Acts for the same grievance. It is true that Section 3 of the Consumer Protection Act envisages proceedings under the Consumer Protection Act as an additional remedy but it is clear that a person cannot proceed under two legal authorities under two different Acts for the same relief. Both the judgements relied upon by the learned counsel for the appellant seem to be inapplicable in the circumstances of the present case, as in those judgements, the arbitration proceedings, was not initiated whereas in the present case, the complaint has been filed during the pendency of the arbitration proceedings. Both the referred judgement only provide that in spite of the arbitration clause in the agreement, the proceedings under the Consumer Protection Act, 1986 are maintainable. As the proceedings under Arbitration Act are already going on, the proceedings under Consumer Protection Act, 1986 cannot proceed simultaneously. This Commission has already decided this issue in number of judgement as mentioned below:
- M/S Magma Fincorp Ltd. vs Gulzar Ali, RP 3835 of 2013 decided on 17/04/2015, this Commission held as follows:-
“It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred”.
It is clear that in case of award passed by Ld. Arbitrator only remedy available to an aggrieved party is to file an application under Section 34 of the Arbitration and Reconciliation Act, 1996 for setting aside the award.
In the instant matter, notice dated 21/12/2010 was issued by Ld. Arbitrator to complainant which was duly received. The complainant has filed a detailed reply before the Arbitrator. The complainant is also aware that award dated 28/2/2011 has been passed by the complainant. It appears that complainant did not opt to file an application v/s 34 of the Arbitration and Reconciliation Act, 1996. He filed a Consumer complaint in April, 2011 which is after the date on which the Arbitration award has been passed. Hence the jurisdiction of this forum is barred. Even otherwise, the loan agreement was for commercial purpose which is not maintainable section 2 (i) (d) of Consumer Protection Act, 1986.
Hence, complaint is dismissed in default. File consigned to record room.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C SURI) (A.S YADAV)
MEMBER MEMBER PRESIDENT
