BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
I.A. No. 158(B)/2017
in
C.C. No. 113/2017
ORDER DATED: 31.10.2017
Petitioners/Opposite parties:
- Mahindra Finance Service Pvt. Ltd., Gate Way Building, Appollo, Bunder, Mumbai-400 001.
- Branch Manager, Mahindra Finance Service Pvt. Ltd., Ground Floor, Thushara Tower, Puthenchantha P.O, Varkala.
(By Adv. Abhishek. R.V)
Counter Petitioner/Complainant:
Sunil Kumar, CB Buildings, Janardhanapuram, Varkala.
(By Adv. P.S. Jobin)
ORDER
This I.A filed by opposite party to hear the question of maintainability on the ground that the opposite parties initiated arbitration proceedings against the complainant and the co-borrower and guarantor of the agreement before the Hon’ble Arbitrator Mr. A. Sreenivasan as Ref. No. 5K-NPA-ARB-AS/KE/BN 1913/JN 635/AGG No. 2239222 of 2014. The Hon’ble Arbitrator on 28.11.2014 passed an award in favour of these opposite parties. The award passed by the arbitrator is first in time. Sec. 3 of the Consumer Protection Act provides only alternate remedy. But the parties cannot get both the remedies. Once the dispute between the parties is already adjudicated if this Forum is continuing with this complaint it will lead to passing conflicting judgments. Moreover as per Sec. 8(1) a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the Arbitration Agreement or any person claiming through or under him, so applies not later than the date of submitting this first statement on the substance of the dispute then notwithstanding any judgment, decree or order of the Supreme Court or any court. Refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. For the said reason also this Forum lacks jurisdiction and the present complaint is not maintainable before this Forum. As per the ruling of Hon’ble National Commission in Revision Petition No. 1936 of 2015 in M/s Magma Fincorp Ltd. Vs. Praveen Benson & anr, “After the award was passed, the District Forum had no jurisdiction to try this case. The award passed by the Arbitrator is first in time. Sec. 3 of the Consumer Protection Act provides only alternative remedy, but the parties cannot take benefit of both the remedies”. No objection filed by the complainant. Hence we are of the opinion that this case is not maintainable before this Forum. Hence I.A allowed.
In the result, I.A allowed and complaint dismissed as not maintainable.
Sd/-
P.SUDHIR : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
jb
