This is a case filed by the complainant Mithun Sarkar wherein it is contended inter alia to the effect that since taking loan from O.P.No.1 he(the complainant) purchased a Pick-up van for which an agreement was made on 01.04.2007 between O.P.No.1 and the complainant. As per said agreement the O.P.No.1 gave loan of Rs.4,35,000/- in favour of complainant whose said vehicle was registered as WB-73/B-0272. The complainant became a defaulter in payment of the installment of E.M.I.(which was started from April 2007 and the complainant paid installment of E.M.I upto the December 2007),from January 2008. It is further case of the complainant that the said vehicle was snatched away from the lawful possession of the complainant through some unknown person and the complainant subsequently realized that the said vehicle has been repossessed by O.P.No.1 and he claims that he was cheated by the O.Ps. Hence this case.

       The Opposite Parties contested this case by filing written version and denied all material averments in relation to allegation as alleged by the complainant against the O.Ps. It is specific case of the O.Ps. to the effect that the case is not maintainable either in law or in facts. It is also liable to be dismissed due to lack of jurisdiction as the matter has been finally disposed of by arbitrator in arbitration proceeding. The sufficient time was given by O.Ps. to the complainant to pay the dues amount, but in vain. Resultantly the O.Ps. were compelled to repossess the said vehicle and sold the vehicle, in question, in open market after sending a legal pre-sale notice. In the circumstances, the O.Ps. have prayed for dismissal of the case with costs.

          Under the above averments both parties went on hearing with the following points:-

POINTS TO BE DECIDED

1)  Is the case maintainable in the eye of law and barred by limitation?

2)  Is the complainant a defaulter?

3)  Was the matter referred to Arbitrator and  finally disposed of by the  Arbitration Proceedings?

4)  Is the complainant entitled to get relief as prayed for?

5)  To what other relief or relief is the complainant entitled?

DECISION WITH REASONS

        Point Nos. 1 to 5:-

         All the points are taken up together for consideration for the sake of convenience as they are interlinked and interrelated.

         Admittedly, the complainant purchased the vehicle, in question, on Hire Purchase agreement under the financial assistance of the O.P. Mahindra & Mahindra Financial Services Ltd. It is fact that since having the said vehicle the complainant paid only 9 months installment on E.M.I basis for the period of April,2007 to December 2007. On 15.02.2008 the said vehicle met with an accident for which he failed to pay the further monthly installments in favour of the O.P. According to complainant he (the complainant) once met O.P.in the year 2009 and again in the middle of 2010 to pay off arrear E.M.Is., but the O.P. refused to accept the same which have been totally denied by the O.Ps. Moreover the complainant also could not adduce any cogent and/or documentary evidence to prove that he ever tried to pay off the arrear E.M.Is. In absence of that evidence an adverse inference must be drawn against the complainant on 25.09.12 the complainant sent a Legal notice to O.P. for creating cause of action to file this case and in reply to that Legal Notice the O.P. sent a reply dt. 12/10/12 to the complainant mentioning that the vehicle has already been confiscated.

         It is further case of the complainant that on 20.11.2008 the O.Ps. took away/ extorted the said vehicle with the help of muscle men by applying force from the possession of the then driver of the vehicle and this episode is also denied by the O.P. who proved the documentary evidence by showing that as the complainant became defaulter by violating the terms and condition of Hire-Purchase agreement the vehicle was rightly repossessed by the O.P.No.1. It is in evidence on record that the said vehicle met with an accident on 15.02.08 and the O.P. took the possession of the vehicle on 20.11.2008. Considering these relevant materials we should say that the complainant could not satisfy us as to why the complainant refrained himself from paying off the then E.M.Is. at least since after repair of the said vehicle till its alleged taking away by O.Ps on 20.11.2008. In absence of specific evidence in this respect the adverse inference must be drawn against the complainant. As the complainant hasviolated the clause 12.1(ii) of the Hire-Purchase agreement (i.e. loan agreement) the alleged repossession of the vehicle from the lawful possession of the complainant should not be considered to be illegal. So the decision in relation to jurisdiction of this Forum, as alleged, is considered to be redundant.

         Now we are to consider in relation to Arbitration Proceedings as made in this matter. It reveals in record that due to non-payment of balance E.M.Is as per terms and conditions as mentioned in clause 26 of Loan agreement dt.01.04.2007 the matter/ disputes was referred to the Ld. Arbitrator who by his order dt.30.07.2008 was pleased to pass an award directing the complainant to liquidate a sum of Rs. 4,15,280/- and cost of Rs.4500/- alongwith interest @18% p.a.to be calculated from the date of said award till realisation of the said awarded amount. In this connection the Ld.Advocate of the complainant after referring a decision reported in 1(2004)CPJ 558(Tamilnadu State C.D.R. Commission, Chennai) argued that without considering the matter, in dispute, only on the basis of decision of Arbitration Proceedings,  this complaint should not be dismissed and the Ld.Advocate of the complainant further argued that as the said Arbitration was not held as per law, the said Arbitration award is presumed to be misconceived and in that case the complainant is entitled to get relief as per provision of Sec.3 of C.P.Act 1986.

         In reply, the Advocate of the O.P. citing several decisions(fully mentioned in his Written Argument) i.e.,

1)      11(2006) CPJ 449,

2)      1(2012) CPJ 116,

3)      IV(2009) CPJ 297(NC),

4)      II(2011) CPJ 133(N.C.),

5)      I(2004) CPJ 374,

6)      IV(2011) CPJ 52,

7)      (2013) 1 SCC400,

8)      II(2007)CPJ 325(NC),

9)      I(2012)CPJ 100,

10)  IV(2006)CPJ 68,

11)  (1996)4 SCC704,

12)  1(2007)CPJ 38,

13)  III(1994)CPJ1 30(NC),

14)  I(2006)CPJ610,

15)  III(2007)CPJ 425(NC),

16)  II(2008)CPJ 513.

has argued that as all the disputes between the parties have already been settled by Ld. Arbitrator in accordance with the arbitrator agreement, the award passed in that Arbitrations Proceeding must be binding upon this complainant as well as on O.Ps. After having regard to the above mentioned citations and after having regard to the argument advanced by both parties we got materials to mention that (a)the loan agreement between the parties was made on  01.04.2007, (b) the complainant lastly made payment for the month of December-2007, (c) the alleged accident, according to complainant, was taken place on 15/02/2008,(d) the award of Arbitration proceedings was made on 30/07/2008, (e) the repossession of the vehicle, in question, was taken by O.P. on 20/11/2008, (f) the Legal Notice for filing this case was sent by complainant on 25/09/2012,( g) In reply to that Legal Notice the O.P. informed the complainant on 12/10/2012 stating that the vehicle was already confiscated/sold away and, h) the present case has been filed on 06/03/2013.

      After close scrutiny of those materials and after having considered the relevant materials on record we  are of the opinion that the complainant could not satisfy us by adducing and showing any material to consider the said Arbitration award was made wrongly.

      Moreover we find no ingredient in the petition of complaint to the effect that the complainant used the said vehicle for the purpose of earning his livelihood by means of self-employment. So, after having considered the materials of the case we are of views that the complainant failed to establish his case. Accordingly, we do hold that owing to paucity of evidence on record in relation to merit of the case the complainant is not entitled to get any relief as sought for.

      Resultantly, the case is liable to be dismissed. 

Hence, it is

ORDERED

That the C.C. No.12/13 filed on behalf of complainant Mithun Sarkar be and the same is dismissed on contest.

      There shall be no order as to any cost.