DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 131 of 1.4.2016
Decided on: 19.7.2017
- Ranjit Singh son of late Jaswant Singh;
- Pardeep Singh son of Ranjit Singh, both residents of village Boharpur,PO Janharian, Tehsil & District Patiala.
…………...Complainants
Versus
1. Magma ITL Finance Limited registered office at Magma House 24 Park Street, Kolkata, through its M.D.
2. Magma ITL Finance Limited, having its Branch office at Patiala, through its Branch Manager.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.S.S.Bal,Advocate,counsel with complainant
Sh.Vikas Mittal,Advocate,counsel for OPs No.1&2
ORDER
SMT.NEENA SANDHU, PRESIDENT
Complainants have filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.).
2. In brief the case of the complainants is that they availed a Tractor loan of Rs.3,95,577/- on 31.7.2012, from OP no.2 , repayable in 48 installments. It is stated that since the date of advancement of the loan, they had been depositing the installments of loan regularly. It is the case of the complainant that they received a notice from the court of Dr. Ranjeesh, Addl. District Judge, Patiala, on 3.2.2016 with regard to the exparte award dated 23.2.2015,passed against them, according to which, the agreement of loan dated 31.7.2012 was terminated vide notice dated 30.7.2014 and the arbitration proceedings were initiated on 22.11.2014 which were decided on 23.2.2015. It is stated that they never received any notice/letter regarding the termination of agreement of loan or any intimation regarding non payment of the installment of loan. The OPs concealed the facts from the complainants and they kept on depositing the amount since 1.9.2012 with the OPs. They have deposited an amount of Rs.5,18,546/- approximately with the OPs. The OPs claimed an amount of Rs.3,25,586/- with future interest @24% per annum, through the execution application, filed against the award dated 23.2.2015. The act of the OPs amounted to unfair trade practice as well as deficiency in service on their part, which caused mental agony and physical harassment to them. Hence this complaint with a prayer for a direction to the OPs to not to raise illegal demand of the amount on the basis of alleged award, to give proper calculations of the amount so deposited by them; to waive the penalties illegally imposed, in respect of the said loan alongwith compensation of Rs.5,00,000/-for causing mental tension and physical harassment. Any other relief, which this Forum may deem fit may also be awarded .
3. On put to notice, OPs appeared and filed the written version taking preliminary objections that the complaint is not maintainable and that the complainants are not consumers as defined under the Act.On merits, it is stated that the complainants availed the loan in the year 2012 and failed to pay the installments for which the company had taken legal course.It is stated that proper notices were issued to the complainants by the arbitrator for appearance but they failed to appear and the award was passed exparte, which is binding on both the parties and could not be challenged before this Forum.It is stated that deposit of the amount by the complainant is matter of record.They have never been approached by the complainants for settlement. After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
4. On being called to do so complainant Ranjit Singh has tendered in evidence his affidavit,Ex.CA alongwith documents Exs.C1 to C21 and closed the evidence.
The ld.counsel for the OPs has tendered in evidence Ex.OPA affidavit of Sh.Harpreet, Authorized representative of Magma ITL and closed the evidence.
5. We have heard the ld.counsel for the parties, gone through the written arguments filed by the ld.counsel for the complainants and have also gone through the record of the case, carefully.
6. Admittedly, on 31.7.2012, the complainant availed a tractor loan of Rs.3,95,577/- from the OP no.2. The grievance of the complainants is that they had been paying the loan installments regularly as per settlement, which had to repay in 48 installments. However, the Ops arbitrarily terminated the loan agreement dated 31.7.2012 vide termination dated 30.7.2014 and initiated arbitration proceedings on 22.11.2014, which were decided ex-parte on 23.2.2015.They never received any notice regarding termination of the loan agreement or for any non deposit of the loan installment. Even, they have not received any notice from the court of Arbitrator and came to know regarding the arbitration award on receipt of notice from the court of ADJ, Patiala, on filing of execution application by the Ops. The said act of the Ops not only amounts to deficiency in service but indulgence into unfair trade practice also and prayed that the Ops may kindly be directed to not to raise illegal demand of the amount on the basis of alleged award . They may further be directed to provide the proper calculation of the amount already deposited by the complainant and to waive off the penalty imposed with respect to the said loan . They may also be granted compensation for the mental agony and physical harassment suffered by him.
7. The stand of the Ops No.1&2 is that due to non-payment of the loan installments by the complainant, the Ops were forced to terminate the loan agreement executed between them and took a legal course by pursuing the matter before the Arbitrator. The notice of Arbitrations proceedings was duly served upon the complainants but the complainants failed to appear and award was passed by the Arbitrator on 23.2.2015. For execution of the said award an application has been filed before the court of ADJ, Patiala, which is sub judice. The complainants just for the purpose to evade their responsibility to pay the awarded amount to the OPs had filed the present complaint , which is not maintainable before this Forum and the same may kindly be dismissed.
8. By filing this complaint, the complainants have prayed for issuance of directions to the Ops not to raise the demand of the amount on the basis of award passed by the Arbitrator on 23.2.2015. It may be stated that once the award has already been passed by the Arbitrator, under the Arbitration and Conciliation Act;1986, and the matter in dispute is still subjudice before the court of ADJ, Patiala, therefore, we are of the view that the present complaint filed by the complainants is not maintainable and is liable to be dismissed. In the case of Vishnu Chandra Sharma Vs. Sri Ram Finance Co.Ltd. & Another Vol.III(2017)CPJ 211(NC), it has been held by the Hon’ble National Commission that, “provisions of C.P.Act,1986, cannot be used for in-derogation of Arbitration and Conciliation Act,1986. Remedy under Consumer Protection Act,1986 is an additional remedy, if main remedy under concerned Act has not been taken. It was made known to the petitioner-complainant that remedy under Arbitration & Conciliation Act,1986 was already taken up by the Opposite party No.1, as per provisions of agreement. Therefore, proceedings under Consumer Protection Acr,1986 cannot have been taken has an alternative remedy.”
9. In view of the aforesaid discussion, we dismiss the complaint being not maintainable without any order as to costs. However, the complainants are at liberty to challenge the award passed by the arbitrator, before the appropriate court or authority as per law, if so advised. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED: 19.7.2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
