This appeal is directed against the order of Ld. DCDRF siliguri dated 24/07/2015 in cc no. 50/S/2014. The crux of the case is that the respondent Ranbir Khaitan purchased a vehicle bearing no. WB 73/B- 4384 financed by appellant Bank by a loan agreement dated 14/06/2009 to be paid by the respondent by instalments. Subsequently the appellant Bank forcefully and fraudulently took custody of the vehicle and it was not returned to the respondent intentionally. So, he registered the consumer complaint case before the Ld. Forum on 29/04/2014 claiming compensation of Rs. 9,00,000/- for value of the vehicle, Rs. 10,00,000/- for compensation for harassment and RS. 50,000/- as litigation cost.
The appellant Bank as OP of that consumer case in spite of receiving notice did not contest the case. So, the case was heard ex-parte and award of Rs. 6,10,900/- with interest @9% P.A. as refund, Rs. 1,50,000/- as compensation and Rs. 10,000/- as litigation cost was delivered in favour of the respondent.
Being aggrieved with the said order this appeal follows on the ground that the consumer complaint was not maintainable and the decision of the Ld. Forum was based on misconception and misappropriation of facts. The positive case of the appellant in the memo of appeal asserted by the appellant is that according to the loan agreement, there was a clause to refer dispute to any arbitrator in respect of all disputes regarding the breach of terms of the agreement and as the respondent could not pay the installments in time, the matter was referred to the arbritrator who had passed an award in the arbitration proceedings on 12/1/22012 and surpressing the said material fact, This consumer complaint was registered before the ld. Forum and for that reason, the decision of the Ld. Advocates, suffers from irregularity and nullity. The appeal was registered and the respondent was given an opportunity of being heard and he had contested the case personally and the appeal was heard in presence of both sides.
Decision with reasons
During the course of hearing of the appeal, the Ld. Advocate of the appellant refers the loan agreement dated 14/06/2009 which is marked as annexure D in this appeal which speaks that there is clause 23 in the agreement where both parties of the loan agreement was agreed to settle the dispute, if any in future to refer the same to an arbitrator. Accordingly, being a joint stock company, the appellant bank has referred the matter to the arbitrator who had sent notice to the respondent for appearance and to take participation in the arbitration proceedings but the respondent did not contest the same. After completion of the proceedings arbitrator delivered an award Annexure F and suppressing the said award, this consumer complainant/respondent has approached through Ld. Forum illegally keeping the Ld. Forum in dark about the award of the arbitration proceedings and as such the proceedings before the Ld. Forum was deemed to be illegal, ab initio since the beginning and for that reason, the order of Ld. forum should be set aside. The respondent Ranbir Khaitan has countered this argument by submitting written notes of argument and referred some judgments of hon’ble upper Forums.
- 2016 (10 SCC 729)
- The Judgment of Hon’ble Supreme Court in Civil Appeal no. 23512 of 2017
He further argued that the appellant bank by suppressing certain material facts has approached this Commission in order to obtain the unlawful results in favour of the bank and has taken the defense of arbitrator proceedings which was illegal in the eye of law as because this respondent wanted to settle the dispute before the Consumer Forum and not in the settlement of arbitration proceedings. So, the memo of appeal should be dismissed. After hearing both sides, and after perusing all the relevant documents submitted before this Commission by the parties to this appeal, the commission find that it is the choice of the complainant as per provisions of section 3 of the CP Act 1986 to go to Consumer Forum until the matter is not settled between the parties. But in this case, the matter was referred to the arbitrator in the year 2012 and the arbitrator proceedings was completed in the same year 2012 and arbitrator has declared the award on 12 December 2012 and thereafter the respondent Ranbir Khaitan moves to the Ld. Consumer Forum for his grievances without challenging the arbitration award in the proper Forum prescribed in the arbitration and conciliation act 1986. It is settled principle of law that when the arbitrator award already passed and all disputes settled by the arbitrator, then only remedy lies to the aggrieved party of arbitration to challenge the same before the judicial Forum as prescribed in the Arbitration and conciliation Act, 1986. The complainant/respondent had the opportunity to challenge the said arbitration award in the proper forum or to the competent civil court.
He has wrongfully choosen to move before the Ld. consumer Forum, suppressing the fact that an award of arbitration was already in existence so in view of legal provisions any award or decree passed without jurisdiction of the decretal authority such award or order becomes null and void. For that reason, the order of Ld. Forum seems to be illegal and irregular one. Accordingly, the order passed by Ld. forum which is challenged in this appeal is liable to be set aside.
Thus, the appeal succeeds,
Hence, it is,
Ordered,
That the instant appeal be and the same is here by allowed on contest without any cost.
The Final order of Ld. D.C.D.R.F, Siliguri dated 24/7/2015 in CC NO. 50/S/2014 is hereby set aside.
Let the order be supplied to the concern parties free of cost and also to be sent to ld. D.C.D.R.F, Siliguri by e-mail.
