PER MR.H.K.BHAISE, HON’BLE MEMBER

1)                    The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, he is the Builder/Developer and carrying out business at Mumbai.  Loan agreement was executed on 15^th September, 2005 to purchase the car for Rs.4,78,080/-.  The loan amount was repayable by monthly installments of Rs.7,968/-.  Last installment was due on 7^th August, 2010.  The complainant issued sixty post dated cheques in favour of the opponent.  In case the cheque is dishonoured, it was agreed to levy penal charges and other charges.  There was no problem till the payment of 56 installments.  However, the opponent misplaced some of the cheques. The complainant made inquiry with the opponent and offered to pay balance amount.  In the month of October-2010, the complainant visited the office of the opponent and requested to issue No due Certificate and N.O.C. as he had repaid the entire amount.  The opponent avoided to return the papers and to give N.O.C.  The opponent issued notice dated 30^th March, 2014 alleging that the complainant has dishonoured the cheques for Rs.39,840/- and the complainant is liable to pay the amount of Rs.1,00,039/-.  The complainant also received notice of arbitration proceeding.  The opponent had not issued any letter informing the cheques were dishonoured. The opponent started litigation in order to extract more money.  The complainant is not the defaulter.  Therefore, he has filed this complaint with a prayer to declare that the opponent is not entitled to recover any amount from the complainant and to direct the opponent to issue N.O.C. to sell the car and to issue No due Certificate.  He has also prayed to direct the opponent to withdraw the intimation circulated to all the bankers.  He has prayed for damages of Rs.1 Lakh and litigation cost. 

2)                The opponent appeared and filed written statement.  It is submitted that last installment was due on 7^th August, 2010.  The complaint is filed after four years therefore it is barred by limitation.  The loan agreement was executed at Kudal, Sindhudurg district therefore this Forum has no jurisdiction to try this complaint.  There is arbitration clause in the loan agreement.  Accordingly, arbitrator was appointed.  The arbitrator passed the award on 25^th August, 2014 in Arbitration Proceeding No.230 of 2014 and the complainant is directed to pay Rs.39,840/- with interest and charges.  As the award is passed by the Arbitrator as per agreement, the present complaint is not maintainable.  The complainant issued sixty cheques.  But, there were mistakes in five cheques.  The complainant was requested to replace those cheques but he failed.  Therefore, arbitration proceeding was started and award is passed.  As per Credit Information Companies (Regulation) Act, 2005, information was circulated to all the financial institutions.  As the complainant failed to repay the loan amount, there is no deficiency in service on the part of the opponent.  Therefore, the complaint is liable to be dismissed with cost.

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- The loan agreement is not disputed.  As per loan agreement, Arbitrator was appointed and the arbitration award was passed.  Copy of award is produced on record.  It shows that notices were issued to the complainant but the complainant remained absent.  Therefore, arbitration award was passed in his absence.  In the written notes of argument, para 6, the complainant has stated that he filed reply in the arbitration proceeding and denied all the allegations.  However, Arbitrator wrongly passed the award.  It shows that the complainant was aware about the arbitration proceeding and the award was passed by the Arbitrator.  Instead of challenging the award passed by the Arbitrator, the complainant has filed this complaint.  The Arbitrator was appointed as per loan agreement, therefore, the award is binding on the complainant.  In view of the arbitration award, present proceeding is not maintainable. 

5)                According to the complainant, he issued sixty cheques for repayment of the loan amount.  According to him, last four cheques were not presented for encashment.  On the other hand, it is the case of the opponent that there were mistakes in five cheques, the complainant was requested to replace those cheques but he failed.  Once the loan amount is received, it was necessary for the complainant to repay it.  It was the duty of the complainant to repay the loan amount within stipulated period.  The evidence on record show that the complainant failed to repay the loan amount was per the agreement.  Therefore, the opponent is entitled to recover it.  Accordingly, arbitration proceeding was started and the Arbitrator passed the award in favour of the opponent.  As per Credit Information Companies (Regulation) Act, 2005, information was circulated to all the financial institutions.  The complainant himself failed to repay the loan amount.  Instead of paying the balance loan amount, he has filed this complaint.  Therefore, the complainant is not entitled for any relief as prayed and the complaint deserves to be dismissed with cost.  Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed with cost.
2. The complainant shall pay cost of this proceeding Rs.10,000/- (Rs.Ten Thousand Only) to the opponent within a period of one month from today.
3. Copies of this order be sent to parties free of cost.

Pronounced on 11^th May, 2016