Haryana

Karnal

CC/592/2021

Deepak Kajal - Complainant(s)

Versus

Mahindra And Mahindra Finance Service Limited - Opp.Party(s)

S.S. Moonak

21 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 592 of 2021

                                                        Date of instt.21.10.2021

                                                        Date of Decision:21.09.2022

 

Deepak Kajal, aged 29 years, son of Shri Ramesh Chand, resident of village Birchpur, Tehsil and District Karnal (Aadhar no.9252 6579 9864)

                                               …….Complainant.

                                              Versus

 

1.     Mahindra and Mahindra Finance Service Ltd., SCO 87, 88, 2^nd floor, Mahila Ashram Complex, above Hero Honda Showroom, behind main Bus Stand, Karnal through its Branch Manager.

2.     Mahindra and Mahindra Finance Service Ltd., SCO 33-35, Sector 34-A, Chandigarh through its Zonal Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

              Dr. Rekha Chaudhary…..Member

          

 Argued by: Shri S.S. Moonak, counsel for complainant.

Shri Dheeraj Sachdeva, counsel for OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                   The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant had taken loan for the purchase of a New car make TUV-300 T-4 from the OPs, in the year 2016 amounting to Rs.4,50,000/-,  now having its registration no.HR-05-AU-2766. The complainant was paying the installments regularly to the OP. However, due to some illness of the complainant, there was some delay in paying the installments of the said car. Lateron, the matter was settled between the complainant and the OP, the entire loan amount was cleared in the month of December, 2020 and the account was treated as closed. It is pertinent to mention here that the OP has filed an application under section 9 of the Arbitration and Conciliation Act, 1996, which was disposed off by the court of Shri A.K. Yadav, Learned Civil Judge, Junior Division, Karnal vide order dated 23.12.2020, as per the statement made by the counsel of OPs, namely HPS Kochhar, Advocate, as such there was nothing due towards the complainant. Thereafter, complainant visited the office of OP and requested for the issuance of NOC and other relevant documents, and return of the blank cheques of Syndicate Bank, Barota Branch, Karnal which were obtained by the OP at the time of disbursement of the loan amount. The officials of the OPs also obtained the signatures of the complainant on various blank papers, pronote, printed papers with blank column, affidavit etc. Even after clearing the loan, the OPs did not issue the NOC and other relevant from for deleting the entry of HPA from the competent authority. The complainant requested the officials of the OPs but the officials of the OPs did not give any response and dragged the matter unnecessarily without any reason on one pretext or the other, due to which complainant has suffered great mental pain, agony as well as financial loss, the complainant is unable to ply the said car on road. Then complainant served a legal notice dated 16.09.2021 through his counsel and the same was acknowledged by the OPs but till today they have not issued the NOC and other relevant documents of the said car to the complainant. So, the act of the OPs is totally, illegally, unjustified and against the law and principle of natural justice. Hence, complainant filed the present complaint seeking direction to the OPs to issue the NOC and relevant documents/forms of the car in question, so that he may get the hypothecation entry deleted from the competent authority and further the OPs be directed to return the blank documents, cheques to the complainant, also to pay a sum of Rs.30,000/- as compensation for mental agony and litigation expenses and OPs be restrained from taking the possession of the car from the complainant.

2.             On notice, OPs appeared and despite of filing the written version moved an application for dismissal/rejection of the complaint with the averments that present complaint is not maintainable in the present form. It is further averred that complainant is fully conversant with the terms and conditions of the written loan agreement. The complainant and the guarantor was made to understand before signing the agreement and after understanding all the contents of the agreement he put his respective signatures over the documents/agreement after going through and understanding the contents of same and executed the written agreements and is bound by the same, the applicant company has hypothecation over the vehicle. Complainant has himself admitted the fact that he was unable to pay the installment of loan amount rather he was also not followed the repayment schedule of the loan. It is further submitted that OPs contacted the complainant many times and requested him to pay the defaulted amount, but complainant did not adhere to the genuine request of the OPs. It is further submitted that complainant was very irregular for paying the installments of the loan amount from the very beginning and the company officials requested the complainant many times to pay the loan dues, but complainant did not adhere to pay the installments as per the repayment schedule of the loan and the dispute arose between the parties and the OP initiated the Arbitration proceedings before the Arbitrator and award passed in favour of the applicant company. OP maintained a statement of account in the due course of law and as per the statement of loan amount of Rs.6,26,009/- was due against the complainant. It is further submitted that more than 20 cheques got bounced for Insufficient Funds.  It is further submitted that the claim statement filed before the Arbitrator and claim statement filed before the Arbitrator decided and an Arbitration Award has already been passed in favour of the OPs company on 24.12.2020 and the present complaint has been filed in the month of October, 2021. Learned counsel for applicant/OP relied upon the judgment of Hon’ble National Commission titled as Magma Fincorp Ltd. Versus Gulzar Ali 2016(2) CPJ 231 in which Hon’ble National Commission held that Deficiency in services alleged-Arbitration Clause-Arbitration Award-Legality of-Whether complaint can be decided by Consumer Fora after arbitration award already passed-Held, as per agreement entered into between parties matter to be referred to Arbitrator-Terms and conditions of Agreement do not Bar the Jurisdiction of Consumer Fora but when parties opt to proceed, first of all, before Arbitrator, that that event, Jurisdiction of commission stand barred-moreover, Consumer Fora cannot question award and no power to set aside award or decree passed by civil court-if this power is given to consumer Fora , this lead to contradictory judgments-Order passed by Fora below wrongly arrogated to themselves power, which the Fora did not possess-Petitioner got any objections against Arbitrator, he should challenge award before higher court, as per law-Thus, question whether complainant was served in this case, whether award passed by Arbitrator is correct or not, all these questions do not come in ambit of power of Consumer Commission and  the Hon’ble National Commission in case titled as Installment Supply Ltd. Vs. Kangra Ex-service man Transport 2006(3) CPR 339  held that award was passed before the complaint was filed by respondent no.1 it will thus governs the dispute between the parties. In view of the decision of Arbitrator which is binding on the parties the Fora below should not have passed an order by overlooking the award hence this revision petition is allowed order passed by for a below set aside and complaint dismissed.”  That in wake of the aforesaid judgment of Hon’ble National Commission, this Commission has no jurisdiction to try and decide the present complaint and prayed for dismissal of the complaint with costs.

3.             Application has been resisted by the complainant by filing reply with the averments that the application of the OPs is false and frivolous as the complainant has already cleared the loan amount. The OP has already issued the No Dues Certificate, which is already on the case file. It is further averred that OP did not disclose the terms and conditions of the loan agreement at the time of disbursement of the loan amount nor the copy of the same was supplied to the complainant despite his repeated requests. The signature on the documents of the complainant as well as guarantor was obtained on the blank papers, printed papers with blank columns, the blank cheques which were unfilled and undated. The officials of the OP told to complainant that it is the normal procedure of the loan given by the company. Nothing is due towards the complainant as the complainant has already cleared the entire loan amount in the month of December, 2020. The OPs have issued No Dues Certificate but when complainant asked for the NOC from the OPs now they have taken a new stand by demanding more amount from the complainant. It is further averred that the present complaint is very much maintainable, the OPs have also withdraw the proceedings filed before the court of Shri Anil Kumar Yadav, Learned Civil Judge, Karnal under section 9 of the Arbitration and Conciliation Act, 1996, as such OPs are estopped from filing this application. Moreover, the proceedings are much maintainable as the remedy under the Act is additional remedy.

4.             The complainant had taken a loan for purchasing of new car in the year 2016 to the tune of Rs.4,50,000/-. Due to non-deposition of the EMI, the Arbitration Proceedings were started by the OPs and Arbitration Award has already been passed on 24.12.2020 in favour of the OPs. The present complaint has been filed on 21.10.2021 after passing of the Arbitration Award dated 23.12.2020.  Thus, the present complaint is not maintainable.

5.             Keeping in view the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present application, the application filed by the OPs is hereby allowed and present complaint of complainant is hereby dismissed being not maintainable. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:21.09.2022                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)                   

Member                 Member