MR. PRABODHA KUMAR DASH, PRESIDENT:-
As per direction of Honbl’e SCDRC under Review Petition No. 47/2022 U/s-47(b) of C.P.Act. We are disposing IA Case No. 2/2022 alongwith C.C.Case No. 6/2022 after going through the letter & spirit of the order.
Brief Fact:-
Complainant filed C.C.Case No. 6/2022 alongwith IA No. 2/2022 filed for an ex-party order for release of vehicle seized by Ops bank. This commission pleased to direct the Ops to release the vehicle on deposition of Rs. 1 Lakh before Ops Bank. The Ops without release the vehicle filed RA U/S-40 for recall the order passed dtd. 25.03.2022 and the RA application dismissed on dt. 27.04.2022. being aggrieved the Ops filed Review petition Honbl’e SCDRC vide No. 47/2022 on which Honbl’e SCDRC directed to dispose the present IA alongwith C.C.Case.
These are the points which we have to considered for final disposal-
- Whether the Complainants are consumer under C.P.Act, 2019?
- Whether the DCDRC have jurisdiction to entertain the C.C.Case when there was a arbitration proceeding between parties?
Issue No.1-
There are two Complainants, one is the original owner also a borrower of Ops who purchased the vehicle & handed over to other Complainant for running the same under an agreement, the vehicle @ EMI. The Ops raise the question of maintainability of C.C.Case on point that both are not consumer. Original owner can’t transfer the vehicle by agreement to other person(Consumer). The vehicle was commercial vehicle No. OD-29-F-4511 and Complainants are not consumer. The provision Sec-2(7)(1) of C.P.Act “ when such use is made with the approval of such person” but does not include a person who obtains such goods for resale or for any commercial purpose. The vehicle being movable property can be taken by other Complainant with former consent by written or verbal when the original owner unable to keep a movable property. The Truck used for arranging livelihood & also for self-employment. The vehicle having a commercial Registration & run by a driver can’t be taken as a commercial vehicle.If nay body read explanation to Sec-2(7)(a) then can understand what the provision when if interpreted in that sense. The Point raised by Ops about maintainability of C.C.Case neither have any documentary evidence to prove any of the Complainant have Income Tax return nor any case law that the commercial registration vehicle owner are not consumer within C.P.Act, 2019. The point raised are devoid of merit and also not acceptable to this Commission, therefore issue No.1 decided in Complainant’s favour.
Issue No.2-
The Ops seized the vehicle & did not released after a direction of this quasi-judicial Commission when one Complainant belongs to Kendrapara District & have original jurisdiction to file a C.C.Case. The Ops are private Finance Company their business of finance coming under “service” in Sec-2(42) which includes financing with others trades. The Ops are practised “Unfair contract” on Complainants when the C.C.Case is pending terminating loan agreement unilaterally a contract without consent of the consumer. The Ops are also practiced unfair trade practice by imposing arbitration proceeding unilaterally. Arbitration Act was enacted in 1996 for settlement of Corporate disputes when parties are in equal footing not between unequal persons. The Corporate Ops provided loan & not given a chance to Complainant but debarred the Complainant from the custody of property by receiving many installments with down payment. The case we cited is appropriate to this case wherein Honbl’e National Commission held on “An arbitration Clause in the agreement does not bar the jurisdiction of the consumer Fora to entertain the complainant” vide(NC N.D P.88) CPR Jan-2023. Jurisdiction of Commission not bar either the pending arbitration or award passed by any arbitration. In our opinion where arbitration between un equal parties are devoid of any legal effect which was outside the State where no possibility of Complainant to appear and defend the same out of State when the property itself not with them. Why the Ops arbitrated in Calcutta when doing business in Orissa? Is there no arbitrators in Orissa to arbitrate the issues? This Commission have no bar to adjudicate any matters as per Sec-100 of C.P.Act not in derogation of any other law but in addition to all laws.
The award passed on dt. 27.09.2021 have no legal effect on Complainant. The beneficial legislation C.P.Act,2019 enacted only to safeguard innocent persons/consumer who are affected by these financial terrorist weeken our Orissa’s people by practice of unfair contract & unfair trade practice. The arbitration Act provided provisions to set-aside award which are against the public policy of Republic of India & also award obtained by practicing fraud. The award passed by arbitrator appointed by Ops is illegal, arbitrary and not acceptable to this Commission for interest of justice. The case referred by Ops are all old cases which already overruled by National Commission, SC which have no legal enforceability today. This issue also gone in favour of Complainants.
The Complainant prayed for redressal equitably for financial loss sustained due to illegality committed by Ops. Loss sustained by Complainant by repossession of vehicle Rs. 15,00,000/- for business loss, mental agony suffered Rs. 200,000/- from such illegality & litigation cost Rs. 10,000/- which is just & proper.
O R D E R
Taking into consideration of facts & laws discussed above it is directed that the Ops are liable to pay Rs. 15,00,000/- as financial loss by repossession of vehicle & Rs. 2,00,000/- mental agony and harassment & Rs. 10,000/- as litigation cost in toto Rs. 17,10,000/- to the Complainant within a period of one month from the date of receipt of this order failing which the Ops are liable for execution proceeding under the C.P.Act, 2019.
On the above observation the C.C.Case is allowed.
Issue extract of the order to the parties for compliance.
Pronounced in the open Commission, on this the 14th day of March,2023.
I, agree
Sd/- Sd/-
MEMBER PRESIDENT
