Complainant Ms.Saroj Bala, through the present complaint has sought the necessary directions to the opposite parties namely M/s.Shriram Equipment Finance Company Ltd,  through its Manager to deliver Excavator Tata Hitachi 200 to her which has been illegally and forcibly taken away from her possession, in the same condition as it was at that time when illegally snatched or make the payment of Rs.18,00,000/- actual cost of the machine alongwith interest @ 18% per annum from the date of confiscation of machine till realization. Opposite parties be further directed to pay Rs.1,50,000/- on account of mental tension, torture, harassment, humiliation suffered by her besides litigation expenses.

 2.          The case of the complainant in brief is that her husband Mr.Mahinder Pal had been running his workshop in the name and style M/s.Mahinder Steel Industries as its sole proprietor. Her husband purchased one Excavator Machine of make Tata Hitachi 200, Model TEL0006 of year 2009 from M/s.Sahara Marbles and Granites having its registered office at Vill. Oda, P.O.Godi, Tehsil Kherwara, District Udaipur, Rajasthan through its Proprietor Gajender Patel son of Harchand Patel by availing said loan of Rs.24,00,000/- from opposite parties and by paying the remaining costs of Rs.7,24,000/- from his own resources. Her husband availed loan from Shriram Equipment Finance Company which was to be repaid in 36 installments amounting to Rs.31,22,322/- and he had been regularly paying the amount of loan to the opposite parties from time to time. He availed loan for purchase of Excavator Machine for earning his livelihood by way of self employment. She has further pleaded that unfortunately, her husband died in a motor vehicular accident on 9.4.2012 at Malikpur, Pathankot leaving behind his wife, a son and two daughters and old and ailing parents. She repaid total amount of Rs.27,88,200/- out of total loan amount of Rs.31,22,322/-. The operator of the excavator was coming back from work at Village Behrian at about 6.00 PM on 12.11.2014, then musclemen/gundas of M/s.Shriram Equipment Finance Company Ltd came and started abusing him and misbehaved and manhandled him.  The operator informed her but the opposite parties took away excavator forcibly. She alongwith her brother-in-law visited the office of opposite parties and requested the officials to return the excavator as she had already made payment of substantial amount towards loan account but they stated that if an amount of more than Rs.6,00,000/- is deposited instantly. She requested that amount due outstanding towards loan account is very less. Thereafter the opposite parties did not pay any heed to her requests to return the vehicle on receipt of the amount actually due outstanding. However the machine was not available with the opposite parties. She was astonished at the behaviour and attitude of the officials of the opposite parties when they stated that they did not want to keep the dealings with her continuing anymore and she could get back said vehicle only on payment of the entire loan amount today with interest @ 36% p.a., penalty and expenses of hiring of musclemen/gundas for forcible snatching of the said machine. She demanded reasonable time for payment of loan amount due but the officials of opposite parties avoided the matter and threatened to sell the same at throw away price. She had an amount of Rs.3,34,122/- due payable by her to the opposite parties in respect of the loan amount but their officials were demanding an amount of Rs.6,19,317/-. Her father-in-law and brother-in-law Surinder Kumar visited the office of opposite parties at Pathankot, Chandigarh and requested that the amount due outstanding is Rs.3,34,122/- and they are ready to pay the said amount but the official at their Chandigarh office demanded very exorbitant amount and did not accede to their genuine requests.  Hence this complaint.

3.        Upon notice, the opposite parties appeared and filed its written version through its counsel, taking the preliminary objection that complaint is not maintainable in the present form and is without any merits and without any cause of action; the complainant has failed to set out any deficiency in service or unfair trade practice on the part of the opposite parties; the complainant has clear cut violated the terms and conditions of the Loan agreement and as such the complainant is not entitled to any relief and the complainant is estopped by her act and conduct from filing this present complaint. The husband of the complainant namely Sh.Mahinder Pal got one commercial vehicle/machine Telcon Ex 200 Excavator, Chasis No.396522JSZ222588 and machine No.200110635 and Sh.Mahinder Pal had obtain a loan of Rs.24 lakhs from the opposite parties for the purchase of said commercial vehicle in respect of which hypothecation cum-agreement date 19 July 2011 bearing No.PTNKTO107190002 was executed and the loan was to be repaid in 35 installments with first installment of Rs.1,06,522/- and rest of the 34 installments of Rs.88,700/-. The loanee seriously defaulted in the repayment of the loan and thereafter various demand notices were issued upon the complainant to clear the defaulted EMIs but the defaulted EMIs were not cleared by the complainant and moreover on the repeated request of the opposite parties the complainant failed to make the vehicle available for inspection to the officials of the opposite parties thus the opposite parties initiated arbitration proceedings as per the clause 15 of the loan agreement and thereafter the opposite parties had filed an application for appointment of the receiver to repossess the abovesaid commercial vehicle and on such application the Ld.arbitrator had appointed Mr.Satish Kumar the employee of the opposite parties as receiver to take the possession of the abovementioned commercial vehicle from the complainant vide its order dated 7.11.2014 and as per the orders of the Ld.Arbitrator, receiver namely Mr.Satish Kumar with the help of the local police had repossessed the abovesaid commercial vehicle from the complainant. This fact has been deliberately concealed by the complainant to take undue advantage. And the complainant has filed a false, frivolous and infractuous complaint. On merits, it was submitted that the husband of the complainant namely Sh.Mahinder Pal got one commercial vehicle/machine Telcon Ex 200 Excavator, Chasis No.396522JSZ222588 and machine No.200110635 and Sh.Mahinder Pal had obtain a loan of Rs.24 lakhs from the opposite parties for the purchase of said commercial vehicle in respect of which hypothecation cum-agreement date 19 July 2011 bearing No.PTNKTO107190002 was executed and the loan was to be repaid in 35 installments with first installment of Rs.1,06,522/- and rest of the 34 installments of Rs.88,700/-. The loanee seriously defaulted in the repayment of the loan. The loan was commercial loan sanctioned to M/s.Mahinder Steel Industries through Sh.Mahinder Pal its Proprietor. It was further submitted that the opposite parties fully cooperated with the complainant after the death of her husband but the complainant failed to pay the monthly installments in respect of the abovementioned commercial vehicle and thereafter demand notices were issued upon the complainant but then also the loan amount was not cleared and nor the complainant used to get the vehicle inspected from the officials of the opposite parties as per the norms of the company. It was next submitted that the opposite parties initiated arbitration proceedings as per the clause 15 of the loan agreement and thereafter the opposite parties had filed an application for appointment of the receiver to reposes the abovesaid commercial vehicle and on such application the Ld. Arbitrator had appointed Mr.Satish Kumar the employee of the opposite parties as receiver to take the possession of the above mention commercial vehicle from the complainant vide its order dated 7.11.2014 and as per the orders of the Ld.Arbitrator, receiver namely Mr.Satish Kumar with the help of the local police had repossessed the abovesaid commercial vehicle from the complainant. This fact has been deliberately concealed by the complainant. All other averments made in the complaint have been vehemently denied and prayed for the dismissal of the complaint.

4.       Counsel for the complainant tendered into evidence affidavit of complainant Ex C1, of Surinder Kumar Ex.C2 and of Shammi Kapoor Ex.C3 along with the other documents exhibited as Ex.C4 to Ex C14 and closed the evidence.

5.        On the other hand, the opposite parties tendered into evidence affidavit of Rohit Varun Singh Thakur Sr.Legal Executive Ex.OP-1 along with the other documents exhibited as Ex.OP2 to OP6 and closed the evidence.

6.       We have carefully examined all the documents/evidence as available on the complaint records (as duly produced by the litigants) along with the scope of the adverse inference that may be judicially drawn for those ignored to be produced; of course, in the very back-drop of arguments as put forth by the learned counsels for the two sides. We find that the present complainant had somewhat admittedly defaulted in repayment of the Loan raised by her ‘late’ husband from the OP financers for the purchase of one pre-used but running Excavator Machine. And, at the above repayment-default, the OP financers, in line with the terms of the mutually consented upon Loan Agreement (of 19.07.2011) availed of the legal remedy of ‘arbitration’ and repossessed the financed Excavator (on 12.11.2014) through the arbitrator ex-parte appointee Receiver Satish Kumar. The complainant through her passive acquiescence before the authority of ‘Arbitrator’ (amounting to resolve-submission) has lost her legal right to the ‘alternative’ remedy under the Consumer Protection Act’ 1986. She, however, shall always be free to legally continue her pursuit through the already availed of remedy of ‘arbitration’ to its logical end as per law and in accordance with the procedure prescribed in law.   

7.       Lastly, in the light of the settled legal proposition as reproduced above, we hereby ORDER for the dismissal of the present complaint for want of the requisite adjudicatory jurisdiction. However, the complainant shall always be at liberty to avail of the legal remedy of her choice as available to her in law in order to put forth/accomplish her legal rights, if she so desires or is so advised.

8.       A copy of the orders be conveyed to the parties as per the provisions of the Act and after compliance, file be consigned to records.

                                                                                            (Naveen Puri)

                                                                                                   President.      

ANNOUNCED:                                                                           (Jagdeep Kaur)

May 11, 2016.                                                                                  Member

*MK*