KUNDAN KUMAR KUMAI

This is an application u/s 47(1)(b) of the Consumer Protection Act, 2019, preferred against the order no.04 dated 24/01/2024, passed by the Ld. DCDRC, Uttar Dinajpur, Raiganj, in CC/57/2023.

Brief facts of the Revisionists’ case, are that the OP/Complainant, had filed a claim case before the Ld. DCDRC, Uttar Dinajpur, Raiganj, after the vehicle in question had been taken into possession by the Revisionists and prayed for returning of the vehicle along with necessary compensations, for mental harassment, litigation, etc. Thereafter, the OP/Complainant, had filed an injunction petition before the Ld. DCDRC, Uttar Dinajpur, Raiganj, praying for protection order so that the vehicle in question, which had been taken into possession by the Revisionists, be prevented from selling the vehicle in question, till the disposal of the case below. The Revisionists contested the said application before the Ld. DCDRC, Uttar Dinajpur, Raiganj. After hearing the parties, the Ld. DCDRC, Uttar Dinajpur, Raiganj, passed the impugned order, restraining the Revisionists, from selling their vehicle in question, till the disposal of the case, pending before the Ld. DCDRC, Uttar Dinajpur, Raiganj.

Being aggrieved by the impugned order, the Revisionists preferred the instant revision, on the ground that the Ld. DCDRC, Uttar Dinajpur, Raiganj, had erred in law and facts, while passing the impugned order.

                                                             Decisions with Reasons

Ld. Advocate for the Revisionists, at the time of final hearing, had submitted that the OP/Complainant had obtained a loan of Rs.5,00,000/- (Rupees five lakhs) only, under an agreement and as because the OP/Complainant had defaulted for repayment of the instalments, the Revisionists had taken into possession, the vehicle in question. As the OP/Complainant, was bound by the Arbitration Clause mentioned in the agreement and the Ld. Arbitrator had also passed an award, therefore the provisions of the Consumer Protection Act, 2019 was not applicable, as it was governed by the Arbitration & Conciliation Act, 1996. Under such circumstance, the impugned order passed by the Ld. DCDRC, Uttar Dinajpur, Raiganj, suffered from illegality and irregularity and needed to be set aside. Ld. Advocate had relied in the judgement passed in Lalit Kumar Dangi Vs. Kalpana P Sanghavi & Anr., on 08/05/2018, by the Hon’ble NCDRC.

Ld. Advocate for the OP/Complainant, on the other hand, countered that no final arbitral award, had been passed and therefore the question of inapplicability of the provisions of the Consumer Protection Act, 2019, does not arise. That apart he had submitted, that the Revisionists had collected premiums in excess of the required amount. Therefore, the question of defaulting does not arise. He thus, prayed for upholding the impugned order. Ld. Advocate had relied in the judgement passed in Sree Ram Transport Finance Co. Ltd. & Anr. Vs. Pannalal Bhaghel, by the Hon’ble NCDRC, in Revision Petition No.1790/2013.

To start with, no final arbitral award had been produced before this Commission and from the extract of the arbitral order dated 30/11/2023, it transpires that the said award was not only interim in nature, but also ex-parte as well. Therefore, the participation of the OP/Complainant in the arbitral proceedings cannot be said to have been done. With the law being well settled to the effect, that the parties to the agreement are not bound by the Arbitral Clause and are at liberty to choose the Forum of Consumer Protection Act, in various judgements, by the Hon’ble Supreme Court and the Hon’ble NCDRC, no illegality or irregularity appears to have been committed by the Ld. DCDRC, Uttar Dinajpur, Raiganj, while passed the impugned order. As regards, the submissions made on behalf of the OP/Complainant, regarding repayment of the instalments, the same needs to be tested in the trial of the case, pending before the Ld. DCDRC, Uttar Dinajpur, Raiganj. As a result, the instant revision fails. However, before parting, it is laid down that the observations made above, shall not influence the decision making of the case, pending before the Ld. Lower Commission.

It is therefore,

                                                               ORDERED

That the instant revision be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRF, Uttar Dinajpur, Raiganj, for disposing the case pending before it, as early as possible.