BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.166 of 2016
Date of Instt. 08.04.2016
Date of Decision: 29.01.2019
Jagdeep Singh s/o Tarlochan Singh R/o H. No.153, Village Rampur Jagir, Tehsil Sultanpur Lodhi, Distt. Kapurthala.
..........Complainant
Versus
1. M/s Cholamandlam Investment & Finance Co. Ltd. Registered Office at “Dare House No.2” N. S. C. Bose Road, Parrys, Chennai and having its Regional Office at 20, Panesar Complex, Near Vishal Mega Mart, G. T. Road, Jalandhar through its Attorney/Auth. Representative.
2. M/s Cholamandlam Investment & Finance Co. Ltd., its regional office at 20, Panesar Complex, Near Vishal Mega Mart, G. T. Road, Jalandhar through its authorized representative Senior Associate.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. PS Jhand, Adv Counsel for the Complainant.
Sh. Gurcharan Singh, Adv Counsel for the OPs No.1 & 2.
Order
Karnail Singh (President)
1. Brief facts of the complaint are that the complainant in order to earn his livelihood, has decided to purchase a vehicle for self-employment and accordingly, the complainant approached the finance company M/s Cholamandlam Investment & Finance Co. Ltd. at its Jalandhar office for purchasing TATA 709 Truck and so entered into purchase agreement No.XVFP-JDR 00000677386 dated 26.12.2011 in respect of vehicle No.PB-10-AR-9059 and started using this vehicle for his self-employment. As per loan agreement, an amount of Rs.2,25,000/- was sanctioned and disbursed to the complainant by respondent. As per terms and conditions of the agreement, complainant was required to repay the loan amount along with interest in 34 equal installments of Rs.8404/- per month. The complainant also entered into arbitration agreement with the OP at the time of advance of loan for purchase of above stated vehicle. By the said arbitration agreement, Shri P. M. S. Narang, Adv Jalandhar has been appointed as Sole Arbitrator to decide all the disputed and differences arising out of the said agreement. The complainant made offer to the 2nd party for making full and final payment of loan amount advanced to the complainant. The 2nd party No.2 calculated the total sum of Rs.1,21,000/- including interest upto 26.08.2014 and the father of the complainant handed over the cheque of Rs.1,21,000/- there and then on 26.08.2014 prematurely in 31 installments instead of 34 installments as agreed upon.
2. That on request by the 1st Party under RTI Act, the 2nd Party delivered the statement of account from which the 1st Party came to know that the 2nd Party calculated the excess amount of sum of Rs.25,212/- at the time of making offer for full payment of loan amount and interest accrued upto 26.08.2014 and accordingly, delivered cheque as stated above. On coming to know from the account statement about the demand and excess receipt of the loan amount and accrued interest upto the date of payment, the 1st party made request through registered post on 13.04.2015 for making repayment of excess amount and issuing clearance certificate to the 1st party, but to no response or reply from the 2nd party. Thereafter, the complainant, met the 2nd party again and again, who dilly dallied the matter on one pretext or the other. The above said act of the 2nd party is unfair trade practice and deficiency in service. The 2nd party was to recover the sum of Rs.2,25,000/- as principle and Rs.60,736/- as interest, total Rs.2,85,736/-, whereas the 2nd party recovered Rs.3,10,948/- thereby recovering excess amount of Rs.25,212/- over and above the principle amount. The final payment with excess amount of the principle amount to Rs.25,212/- was demanded and received on 26.08.2014. But with malafide and fraudulent intention, the OP made an arbitration reference on 01.09.2014 and obtained exparte award on 21.03.2015, which is unlawful, illegal, non-entity, non-est in the eyes of law. This act is just to harass the complainant and is unfair trade practice and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund Rs.25,212/- excess recovered as an interest from the complainant along with interest thereon @ 48% per annum from 26.08.2014 and further OPs be directed to pay compensation for causing harassment, to the tune of Rs.50,000/- and also directed to issue “Clearance Certificate” and be also directed to litigation expenses.
3. Notice of the complaint was given to the OPs, who appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and further averred that the complainant is not consumer as per the provisions of the Consumer Protection Act as the vehicle in question was and has always used as commercial purpose so on this score, the complaint is liable to be dismissed. Even the complainant has no locus-standi to file the present complaint. It is further alleged that the complainant has no cause of action to file the present complaint and further submitted that the loan agreement contains an Arbitration Clause and as such, this Forum has no jurisdiction to entertain the present complaint. On merits, the factum in regard to obtain a loan for purchase of vehicle is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-14 and closed the evidence.
5. Similarly, counsel for the OPs tendered into evidence affidavits Ex.OP/A and Ex.OP/B along with some documents Ex.OP1 to Ex.OP3 and then closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. Before imparting with the main issue in dispute, we like to discuss a legal question, which is came out from the complaint itself. In Para No.3 of the complaint, the complainant himself stated that the complainant also entered into Arbitration Agreement with the OP at the time of advancement of the loan for purchase of the above said vehicle and by the said Arbitration Agreement, Sh. P. M. S. Narang, Adv, Jalandhar has been appointed as Sole Arbitrator to decide all the disputes and differences arising out of the said agreement and then complainant again in Para No.8 of the complaint stated that the OP with malafide and fraudulent intention made an arbitration reference on 01.09.2014 and obtained exparte award on 23.01.2015, which is unlawful, illegal, non-entity, non-est in the eyes of law and is unfair trade practice and in support of these pleadings, the complainant himself also brought on the file photostat copy of the award passed by Sole Arbitrator Sh. P.M.S. Narang, Adv, the said award decided on 21.03.2015, though the copy of the said award has not been exhibited or marked by either of the party, but in the interest of justice, we itself mark it as Ex.CX for further reference.
8. The above discussion itself established that the matter in dispute has been already soughted out by the Sole Arbitrator and the remedy with the complainant is not to challenge the said arbitration award in the District Forum by taking a plea an unfair trade practice rather the complainant has to challenge the said award before the Appellate Authority. No doubt, whenever there is an Arbitration Clause in the agreement, but the same does not oust the complainant from filing a complaint before the Consumer Forum because as per Section 3, a filing of complaint before the Consumer Forum is an additional remedy, but the case in hand having some different facts because the arbitration award has been already passed and after passing award, the complainant has no right to challenge the same by way of filing complaint and accordingly, we came to conclusion that the instant complaint is not maintainable, therefore, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Thatai Karnail Singh
29.01.2019 Member President
