KUNDAN KUMAR KUMAI
This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the judgement and final order dated 31/08/2022 by the Ld. DCDRF, Cooch Behar in Consumer Case No.16/2019.
Brief fact of the Appellants’ Case is that, the Respondent/Complainant, had purchased one OMNI vehicle bearing no. WB-63A-1391, for her livelihood with financial help from the Appellants. The Respondent/Complainant had paid all the loan amounts to the extent of Rs.29,300/- (Rupees twenty-nine thousand three hundred) only (approx.).
But on 19/09/2017, some persons from the Appellants, had snatched the Respondent/Complainant’s vehicle, from Chowpatty station, Cooch Behar, from the driver and handed him one re-possession list. Thereafter, the Respondent/Complainant had gone to the Appellant No. 1, to repay the dues and demand her vehicle, but there was no response. On 11/10/2017, he issued one Legal Notice for clearing of the dues. The Respondent/Complainant’s lawyer then received a Notice dated 17/10/2017, which was a pre-sale Notice dated 21/09/2017. Subsequently, the Respondent/Complainant sent Legal Notices dated 16/11/2017 & 27/11/2017 to the Appellant No.1. But the Appellant No.1 refused to receive the same. The Appellant No.2 in reply to the Legal Notice dated 27/12/2017 replied through a letter dated 09/01/2018 stating that the vehicle had been sold on 25/10/2017. Having sold the vehicle without informing and also not remitting the sale amount, the Appellants had committed deficiency in service and unfair trade practice. Finding no alternative, the Respondent/Complainant lodged the complaint before the Ld. DCDRF, Cooch Behar with necessary prayers.
The Appellants contested the claim by filing Written Version, wherein they submitted that the Respondent/Complainant, had filed the Case by suppressing the material facts. It was also submitted that the vehicle had been used for commercial purpose and therefore the Case did not attract the provisions of the Consumer Protection Act, 1986. It was further mentioned that the Respondent/Complainant was a chronic defaulter, as she could not pay the EMIs on time, when she was required to pay the EMI at the rate of Rs.29,300/- (Rupees twenty-nine thousand three hundred) only (approx.) for the first five months and Rs.22,350/- for the remaining months. It was also mentioned that the re-possession had been done on the basis of a direction passed by the Ld. City Civil Court, Calcutta, u/s 9 of the Arbitration and Conciliation Act, 1996 and pre-repossession and post-repossession intimation had been sent to the Cooch Behar Police Station. Moreover, the Arbitration Award dated 11/05/2018 had already been passed, which by influx of time had become a Decree and the Consumer Commission did not have jurisdiction to entertain the instant case. It was further prayed that the Case be dismissed.
After going through the evidence, the Ld. DCDRF, Cooch Behar, passed an impugned order, directing the Appellants to pay a sum of Rs.40,000/- (Rupees forty thousand) only, within a month from the date of passing of the order, failing which interest @ 6% per annum would be attracted till the date of repayment.
Being aggrieved by the impugned order, the instant appeal was preferred on the ground that the Ld. DCDRF, Cooch Behar, erred in law and facts, while passing the impugned order.
Decisions with Reasons
Ld. Advocate for the Appellants at the time of final hearing, had argued that the jurisdiction of the Consumer Protection Act was not attracted as an award under the Arbitration and Conciliation Act, 1996, had already been published on 11/05/2008 on the basis of Clause 23 of the Loan Agreement. He has relied in the judgements passed in S. Seetharaman Vs. Tamil Nadu Telecommunications Office & Anr. reported in I (2006) CPJ 610, Caronet Constructions (India) Pvt. Ltd. Vs. Sri Ram Chits Tamil Nadu (P) Ltd. and Anr. reported in II (2008) CPJ 513, Indian Medical Association Housing Society Ltd. Vs. M/s. Rustumji Developments reported in III (1994) CPJ 130 (NC), Instalment Supply Ltd. Vs. Kangra Ex-servicemen Transport Co. & Anr. reported in I (2007) CPJ 34 (NC), IndusInd Bank Vs. Ranbir Khaitan decided by West Bengal Hon’ble State Commission, Circuit Bench at Siliguri in RBR/A/11/2019 on 29/08/2019, M/s. Durga Commercial Corporation Vs. M/s. United India Insurance Co. Ltd. & Ors. reported in (1992) 3 CPJ 38 (2) (NC), Balmukund Joshi Vs. Suresh Rathi Securities reported in (2023) SCC Online NCDRC 8 and Navneet Jha Vs. Magma Shrachi Finance Ltd. by the Hon’ble Supreme Court in SLP No. 13778/2021.
The existence of Clause 23 of the Loan Agreement (Annexure E) and the Award (Annexure F), clearly go on to show that the Arbitral proceeding had been completed between the parties and Award had been granted, clearly indicating the procedure hereinafter would be governed by the provisions of section 34 of the Arbitration and Conciliation Act, 1996. The above citations also clearly support the view that the provisions of the Consumer Protection Act, 1986 would not be attracted as the Arbitral Award would have to be challenged as per the procedure laid down Section 34 of the Arbitration and Conciliation Act, 1996.
Thus, the impugned order passed by the Ld. DCDRF, Cooch Behar upholding the right of the Respondent/Complainant to the protection of the Consumer Protection Act, 1986 appears to be transgressing into the jurisdiction of the provisions of the Arbitration and Conciliation Act, 1996 and therefore appears to be an erroneous interpretation of the facts and application of the provisions of the Consumer Protection Act, 1986. Under the circumstance, the instant appeal succeeds.
It is therefore
ORDERED
That the instant appeal be and the same is allowed on contest, but without cost.
The impugned order is hereby set aside.
Copy of the order be sent to the parties free of cost.
Copy of the order be sent to the Ld. DCDRF, Cooch Behar for necessary information.
The statutory amount be returned from whom received.
Jt. Registrar of WBSCDRC, Circuit Bench at Siliguri to do the needful.
