MR. BIBEKANANDA DAS, MEMBER:-
Complainant has filed the aforesaid C.C Case seeking following relief, this Honbl’e Commission may be pleased to admit the complaint and upon hearing the parties may hold the action/service of the Ops to be unjust, unfair and deficient, which is liable to be compensated appropriately as quantified above of the complaint. Besides while holding the seizure as illegal necessary direction for restoration of the vehicle 3718 BS IV Truck bearing No. OD-29-G-3027, which was illegally repossessed on dt. 04.12.2022 be passed, the OpNo.5 be directed not to change the ownership in the name of any other person in respect of the aforesaid vehicle for the interest of justice.
This Commission vide order dt. 08.02.2023 passed the following order “The I.A. Case No. 10/2023 arising out of C.C.Case No. 23/2023 filed under Sec-38(8) of C.P.Act, 2019. Grievances of the Complainant being an uneducated unemployed purchased one AL 3118BSIV in Sep-2019 financed by Op No. 1 to 4. Due to unavoidable circumstances beyond his control could not paid 4 installments as a result the Op No. 1 to 4 without prior notice using muscle power repossessed the vehicle on dt. 04/12/2022 from Gopa Chhak, Kendrapara. The Complainant’s loan amount Rs. 30,40,000/- re-payable in 60 installments Rs. 71,495/- per months. The Transport Industries suffered from the Pandemic 2019 continued till 2021 and vehicle owner already suffered a lot and could not paid timely installments for which the Finances Companies after receipt 50% of installment repossessing the vehicle illegally and arbitrarily without notice even without following due procedure of law. The Complainant prayed unless this Commission exercising it Jurisdiction pass ex-parte order as under section 38(8) of C.P.Act the Complainant will suffer irreparable loss which can’t be compensated in any way.
Taking into the grievances of the Complainant and prayer made their in C.C.Case No. 23/2023 as well as in I.A. No. 10/2023 this is a fit case to pas an ex-parte interim order for interest of Justice.Further the Complainant prayed to release the Vehicle OD-29 G 3027 in favour of Complainant by depositing Rs. 1,50,000/-(Rupees One Lakh Fifty thousand) before Op No.1 to 4, then the Ops shall release the vehicle. The Ld. R.T.O, Kendrapara shall not transfer ownership till disposal of I.A No. 10/2023 as well as C.C. Case No. 23/2023.
“ It is hereby directed to the Op No. 1 to 4 shall release the vehicle OD-29 G 3027 on deposit of Rs. 1,50,000/-(Rupees One Lakh Fifty thousand) by the Complainant before Op No. 1 to 4 within 30 days on receipt of the order, failure of which the Op No.1 to 4 shall liable for execution as per C.P.Act, 2019. Further the OpNo.5, R.T.O, Kendrapara directed not to transfer the ownership of Vehicle OD-29-G-3027 till disposal of C.C.Case No. 23/2023 alongwith I.A. No. 10/2023”.
Challenging the order passed by this Commission, Ops filed R.P. No. 49/2023, wherein the Honbl’e State Commission vide order dt. 10.05.2023 directed as under -
“ Heard Learned Counsel for the Petitioner. It is admitted that Learned District Commission without hearing the Op passed the order as if complaint case has been disposed of. The order itself shows that there is 50% of the outstanding payable, but ultimately, they have passed the order to prove that the vehicle will be released subject to deposit of Rs. 1,50,000/- although outstanding is more than Rs. 8,00,000/- . So, he submitted that he should be given opportunity of being heard by the Learned District Commission before the interim order is passed.
Consider the submissions, perused the DFR including the impugned order. Learned Dist. Commission has purportedly passed the ex-parte order under section 38(8) of the Consumer Protection Act, 2019 and that order appears to be the main order to be passed in the complaint case. On the other hand, this order should be passed after hearing the parties. However, without interfering with the impugned order, we hereby direct the learned District Commission to hear both the parties again and pass a speaking order on the interim application. Till then the impugned order is stayed. It is made clear that Learned District Commission will dispose of the interim petition within 30 days from the date of receipt of this order.
Ld. Counsel for the Petitioner is directed to appear before this Commission on 22,5,2023 to take further instruction in the matter. The R.P.Case is accordingly disposed of ”.
We heard the Ld. Counsel for both the parties, the Ld. Counsel for Complainant submitted that, he availed financial service for an amount of Rs. 30,40,000/- and has paid substantial portion of the said amount to the Ops and he is residing & carrying on business within the jurisdiction of this Commission. The vehicle seized on dt. 04.12.2022 at Gopa Chhak Kendrapara and demanded the due amount for which cause of action arose within this Commission’s jurisdiction.
Complainant further submitted that, he has not supplied with the copy of loan agreement and he has orally informed regarding interest payable, quantum of EMIs, date of collection of EMIs, and Complainant issued blank signed cheques. The Complainant paying installments and has paid substantial amount as due on dt. 10.05.2021 and in the meantime due to outbreak of COVID-19 Complainant failed to pay some EMIs and the loan was restructured and repayment was supposed to start from dt. 10.11.2021 and Complainant has paid 7 EMIs and thereafter defaulted for which his vehicle was seized on dt. 04.12.2022 on the way to repair. The Complainant approached to release the vehicle on payment of two installments but it was not adhere to by the Ops. The vehicle stands in the name of Complainant and hypothecated to Ops but no prior notice before repossession was served sufficiently ahead of repossession. Thus, the action of Ops amounts to deficiency in service. The Ops have filed their written version wherein it is stated as per clause in the agreement dt. 03.08.2019 arbitration proceeding has been initiated and Sec-17 notice has been duly served upon the Complainant on dt. 28.11.22. As such the present C.C.Case is not maintainable before this Commission in view of the decision of Honbl’e National Commission in Manas Construction vrs L& T Finance Ltd. & others wherein Honbl’e National Commission:-
“ Heard the learned counsel for the appellant at the admission stage and perused the record. Learned counsel for the appellant stated that the State Commission has dismissed the complaint on mainly two grounds. Firstly, the State Commission has held that the consumer complaint is not maintainable as the arbitration proceedings are going on. Secondly, the State Commission has held that the machine was purchased for commercial purpose and therefore, complainant was not a consumer.
The learned counsel argued that Section-3 of the Consumer Protection Act, 1986 clearly states that the provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force. It was emphasized that proceedings under the Consumer Protection Act can continue even if the remedy has been claimed elsewhere. Learned counsel for the appellant has relied upon the following judgments:
(1). National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and Another, (2012)2 SCC 506, wherein the Hon'ble Apex Court held as follows:-
The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section-8 of the Arbitration and Concilation Act, 1996 Act. Moreover, the plain language of Section-3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force."
In DLF Vs. Mridul Estate (Pvt.) Ltd., Revision Petition no. 412 of 2011, decided on 13.05.2013, wherein this Commission held as follows:-
In N.K. Modi's case (supra) and Skypay Courier's Case (supra), the Hon'ble Supreme Court in the context of the provisions of the C.P. Act and in particular Section-3 of the Act and Arbitration Act of 1940 has held that the Consumer Fora created under the C.P. Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to the Arbitration proceedings pursuant to an Agreement entered into between the parties. Ld. Counsel appearing for the Opposite Parties submitted before us that these judgments would not be applicable as they are in the context of the Arbitration Act of 1940.
That the Arbitration Act of 1996 has brought out fundamental changes and in view of the Arbitration Act of 1996, it is mandatory on the part of the Judicial Authorities to refer the parties to the arbitration. That the mandate of Section-8 of Arbitration Act of 1996 would be defeated if the matter is not referred to arbitration in the cases where the parties have agreed to refer the dispute to the Arbitration. We do not find any substance in this submission as well. Hon'ble Supreme Court in Madhusudhan Reddy's case (supra) after posing the following questions for its consideration in para 31 of the judgment:-
The Ld. Counsel relied upon Section-8 of the Arbitration and Concilation Act, 1996 and argued that in view of the arbitration clause contained in the agreements entered between the appellant and the growers, the latter could have applied for arbitration and Consumer Forums should have non-suited them in view of Section-8 of the Arbitration and Concilation Act, 1996. held that the complaint filed under the C.P. Act would be maintainable and the consumer cannot be denied the relief by invoking the jurisdiction of Section-8 of the Arbitration Act of 1986. That Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition and not in derogation of the provisions of any other law for the time being in force....
Another aspect in relation to the consumer disputes which has to be taken note of is that most of the complainants/consumers sign the agreement containing an arbitration clause under duress(instance is taken from Builder's agreement) because the other party which is in a dominating position insists for it, else they would not enter into builders' agreement. In most of the cases, the builder who is in a dominating position reserves the right to appoint Sole Arbitrator to himself and the Arbitrator so appointed in most of the cases is the officer of the builder from whom it is almost impossible to expect an impartial and fair award. If the builder is allowed to have resort to the arbitration agreement contained in the Builder's agreement, going by the prevalent practice and little experience we have in the matters, the consumer would never be able to redress his genuine grievance. Legislature by providing the additional remedy under Section 3 of the C.P. Act has tried to take care of such a situation to redress the grievances of the small consumers.
Respectfully following the view taken by the Hon'ble Supreme Court in catena of judgments and in particular in Madhusudhan Reddy's case (2012)2 SCC 506, the question referred is answered in negative, i.e. in favour of the Complainants and against the Opposite Parties. It is held that the Consumer Fora constituted under the C.P. Act are not bound to refer the dispute raised in the complaint on an application filed u/s. 8 of the Arbitration Act of 1996 seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties."
"It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred".
The Complainant relied on the decision of Honbl’e Supreme Court in Civil Appeal No. 5440/2002 and SCDRC, Lucknow U.P and another case where the Honbl’e Court passing the order, Case No., and party name are not available. The First case relates to mortgaged property and not hypothecation and the 2nd U.P. SCDRC case also relates to builders/constructions/promoters and not a case of hypothecation and the 3rd one is perhaps very old decision passed by Honbl’e Justice Shivraj V. Patil without having any case No., Court name, party name appears to have been overruled and for which we have not taken note of the same (3rd one).
The order passed by the Honbl’e National Commission in Manas Construction has dealt with many cases particularly in the case of Madhusudan Reddy by Honbl’e Supreme Court 2012(2) SCC,506 wherein the case relates to hypothecation and it is our considered view that the Complaint Petition is not maintainable under C.P. Act where Arbitration proceeding has already been initiated. In this case Arbitration proceeding has been initiated prior to filing of the present C.C. Case before this Commission and as such the C.C.Case No. 23/2023 as well as I.A. 10/2023 are not maintainable and are hereby dismissed. No order as to cost.
Issue extract of the order to the parties concerned.
Pronounced in the open Commission, on this the 27th day of June,2023.
I, agree
Sd/- Sd/-
PRESIDENT MEMBER
