Date of Filing : 08/10/2015                                                       Date of Order : 09/11/2017

Order No.23, dated 09/11/2017

Sri Asish Kumar Senapati, President

The Ld. Agents of both parties file haziras.

Today is fixed for order in respect of the petition dated 07.07.17 filed by the OP No.2.

The sum and substance of the petition dated 07.07.17 may be described as follows:-

The Complainant one Mahiruddin Mia filed the present case against the Ops for his Vehicle being Registration No.WB-63/9909 purchased by him on receiving financial loan through OP No.2 Tata Motors Finance Ltd. in terms of Loan-Cum- Hypothecation Agreement executed between the parties and according to the terms and conditions of the Agreement, all the disputes, differences, claims arising out of the said Agreement are the matters of the arbitration under Arbitration and Conciliation Act, 1996. 

That the OP No.2 had initiated arbitration proceeding before the sole Arbitrator Kainaz Irani being Arbitration Case No. LOT/85/FBRY 119 of 2016 in respect of Agreement No.5001715278 dated 08.01.15 in terms of Clause 23 of the said Agreement and the Complainant did not appear before the Arbitrator inspite of due service of notice upon him, resulting order passed by the Arbitrator on 03.05.16.  The matter of dispute has already been adjudicated on 03.05.16 by the Arbitrator and so the present case is not maintainable.

The Complainant filed written objection on 24.10.17 contending that the petition dated 07.07.17 is not maintainable and it is liable to be dismissed u/s 26 of the CP Act, 1986.  The Complainant has filed the present case due to non-settlement of this claim by the Insurer of his vehicle and there is no dispute between the Complainant and the OP No.2 regarding the payment of loan amount, as such, there is no relation between the claim petition filed by the Complainant and the petition filed by the OP No.2.

The Ld. Agent for the OP No.2 submits that OP No.2 referred the dispute to the  Arbitrator for arbitration in terms of Clause 23 of the Agreement between the parties dated 08.01.15.  It is argued that the Ld. Arbitrator has already adjudicated the dispute vide his award dated 03.05.16.  It is urged that the OP No.2 filed an application dated 13.01.16 praying for an order of dismissed of this case and the Forum passed an order directing the parties to refer the dispute to the Arbitrator as per Agreement between the parties vide order dated 05.02.16 and the OP No.2 has informed this Ld. Forum about the proceeding of Arbitration from time to time.

The Ld. Agent for the OP No.2 submits that both parties agreed to settle their dispute through Arbitrator as per Clause 23 of the Hypothecation-cum-Loan Agreement and now the Arbitrator has finally adjudicated the dispute vide order dated 03.05.16 and so this Forum has no jurisdiction to entertain the case.   He draws our attention to a number of decisions reported in (2016) 1 WBLR (CPSC) 661, (2015) 1 WBLR Cal.518, II(2009)CPJ368(NC)19964 SCC 704, 1(2007) CPJ 34 (NC), III (1994) CPJ 130 (NC), 1 (2006) CPJ 610, III(2007) CPJ 425 (NC), II (2008) CPJ 513 and State Consumer Disputes Redressal Commission, Pandri, Raipur (C.G) dated 24.05.17 in Vinesh Kumar Sharma –Vs- Manager, Chola Mandalam Finance.  He prys for allowing his petition dated 07.07.17.

In reply, the Ld. Agent for the Complainant submits that the dispute is relating to settlement of claim by Insurer –OP No.3. and there is no dispute between the complainant and the OP No.2 regarding payment of loan amount.  He argues that this Forum has ample jurisdiction to entertain the complaint case as the matter was not referred to the Arbitrator before institution of the complaint case.  He prays for rejection of the petition dated 07.07.17.

We have gone through the complaint petition, dated 07.07.17, written objection, the documents filed by both parties and the decisions referred by the Ld. Agent for the OP No.2.  It appears from the order passed by this Forum dated 05.02.16 that a petition dated 13.01.16 was filed by OP No.2 u/s 8 of the Arbitration and Conciliation Act, 1996 for dismissal of the case and this Forum observed that we have no alternative but to direct the parties to refer the dispute to the Arbitrator and the parties are directed to refer the dispute to the Arbitrator for its arbitration as per agreement between the parties.  Accordingly, the dispute was referred by OP No.2 to the Arbitrator and ultimately, arbitration order was passed on 03.05.16 in arbitration case No.LOT/85/FBRY 119 of 2016.  With due regard to the decisions referred by the Ld. Agent for the OP No.2 and after careful consideration over the materials on record and the submission of both sides, we think that petition dated 07.07.17 filed by OP No.2 should be allowed as the dispute between the parties has already been adjudicated by the Arbitrator in terms of clause 23 of the Agreement dated 08.01.15. 

The petition dated 07.07.17 is thus disposed of.

As the dispute between the parties has already been adjudicated by the Arbitrator on 03.05.16, the complaint case should be dismissed.

Hence,

it is Ordered,

That the complaint case be and the same is hereby dismissed without cost as the dispute between the parties has been adjudicated by the Arbitrator on 03.05.16 in terms of clause 23 of the Agreement between the parties dated 08.01.15.

Let copy of order be supplied / sent to the parties free of cost.