BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR
Complaint No.306 of 2017
Date of Instt. 23.08.2017 Date of Decision: 09.03.2021
Baldev Singh son of Sh. Prem Singh, resident of Village Daudpur, Tehsil & District Kapurthala.
..........Complainant
Versus
1. S.N Hire Purchase Ltd, Opposite Ambika Tower, Near Court Complex, Jalandhar.
2. Chola Mandalam Investment & Finance Company, Near Vishal Mega Tower, G.T Road, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh.Aman Kumar, Advocate Counsel for complainant.
OP No.1 Exparte.
Sh. Gurcharan Singh, Advocate, Counsel for OP No.2.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, against OPs on the averments that he was to purchase a vehicle 1109 bearing registration no. PB-11 AT 7396 year of manufacturer 2011. The vehicle was purchased by him from OP no.1 at Jalandhar. OP No.1 finances vehicle from OP no.2. The amount was finance a sum of Rs.6,48,020/- in 47 monthly installments of Rs.21,400/- on 01.01.2015. He gave a sum of Rs.3,50,000/- in installments till March 2016. He unpaid only two installments and OP no.2 took forcibly the vehicle and seized in the month of May 2016 and sold the vehicle without following procedure informing him. It is only source of income of the complainant. He gave part installments at Kapurthala but receipt issued by OP through billing and OP no.1 seized the vehicle from him. He requested OPs for returning the vehicle but OP did not agree with the same. Due to this act of OP, he suffered a loss at the hands of OPs. He is entitled to the tune of Rs.4,00,000/- on account of cost of vehicle and Rs.50,000/- on account of abrupt seizure and sale of vehicle causing harassment and inconvenience to complainant. Due to this act and conduct of OPs, he has filed the present complaint and prayed that the OPs be directed to pay Rs.4,00,000/- as cost of vehicle , Rs.50,000/- on account of pains and suffering and Rs.5000/- as cost of litigation.
2. Notice sent to OP no.1 received back with report “Refused by Employees”. From perusal of report, it appears that OP no.1 have knowledge of the complaint but have refused to accept the same. As such, OP no.1 was proceeded against exparte by this Commission, vide order dated 15.01.2018.
3. OP No.2 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has no locus standi to file the present complaint and complainant has no cause of action to file the present complaint. On merits, it was averred that the complainant has purchased a vehicle bearing registration no. PB11-AT-7396 year of manufacturer 2011 and the amount of finance was sum of Rs.6,48,020/- in 47 monthly installments of Rs.21,400/- on 1.01.2015. The complainant never maintained financial discipline in payment of installments to OP. The complainant usually defaulted in payment of the installments by the stipulated day and since from the inception of the agreement. A pre-seizure information for seizure of the vehicle was duly given to the police station at Amritsar on 28.07.2016 and thereafter vehicle was seized in peaceable manner. Thereafter, complainant was served registered letter dated 30.07.2016 to make the payment. After waiting of 10 days OP sold the vehicle for Rs.4,30,000/- on 17.09.2016. OP on 06.03.2017 invoked the arbitration clause by sending a letter of appointment of Sh. J. Venkateshaperumal, Ld. Arbitrator requesting to adjudicate the claim, which was received by the complainant. The complainant has failed to appear before the Arbitrator. Notice issued by ld Arbitrator and was rightly proceeded exparte. OP is entitled to recover Rs.249621/- along with interest @ 18% per annum from 06.03.2017 till the date of realization as per award dated 23.10.2017. The complainant gave part installment at Kapurthala. But it was wrong that Ops seized the vehicle and after that sold the vehicle without giving any information to complainant. Rest of the averments of the complainant was denied by OP no.2 and it prayed for dismissal of the complaint.
4. The complainant has tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-8. On the other hand, OP no.2 tendered in evidence affidavit of Vikal Sharma Attorney of M/s Cholamandalam Investment & Finance Co. Limited as Ex.OP-2/A. Affidavit of Neeraj Deputy Officer of OP no.2 as Ex.OP-2/B. along with copies of documents Ex.OP-2/1 to Ex.OP-2/6.
5. We have perused the written arguments filed by counsel for complainant and heard learned counsel for the OP no.2 as well as record of the case very carefully.
6. The vehicle was purchased by the complainant from OP no.1 at Jalandhar. OP no.1 finances the vehicle bearing registration no. PB-11 AT 7396 from OP no.2 for amount of Rs.6,48,020/- in 47 monthly installments of Rs.21,400/- on 01.01.2015. The complainant paid a sum of Rs.3,50,000/- till March 2016. This fact is clear from perusal of receipts of installments Ex.C-1 to Ex.C-7 on the record. The installment fixed Rs.21,400/- per month. OP no.2 informed the complainant vide registered letter dated 30.07.2016 to make the payment of the arrears due on his part otherwise it shall be constrained to take steps to sell the vehicle. Ex.OP-2/2 is copy of loan agreement executed between the parties and no one wriggle out from the same. As per sub clause b) clause 10 of Event of Default : the borrower or the guarantor failing to perform obligation, repay the loan or any installment, fee , charges or costs or any other amount due to the company in the manner herein contained as and when it becomes due whether demanded by the company. The both parties are bound by the above said clause. From perusal of this, it is clear that if borrowers not deposit the installments in time as per agreement, it becomes defaulter. This agreement executed between the parties and Baldev Singh also signed the same in English Language. It seems that he is an educated person and not a layman. He read over all the terms and conditions and accepted the same with his own will. Schedule of agreement is also placed on record. In this schedule, it has been specifically mentioned that Tenure (in months) = 47, Total amount = 648020 , First Installment Dated 01 Jan 2015, Last Installment date = 01 Nov 2018. This schedule of agreement also signed by complainant Baldev Singh, which is placed on the record. Both parties are binding by the same. OPs also filed arbitration case before Sole Arbitrator which is Ex.OP-2/3 placed on the record. In this arbitration case, it has been specifically mentioned that claimant/OP no.2 was left with no other option than to take possession of the subject vehicle. Even after repossession of the vehicle, the respondents/complainants have not come forward to pay the due amount to the claimant/OP no.2 and take back the vehicle. The Sole Arbitrator directed respondents no.1 and 2/complainant Baldev Singh and guarantor Kuldip Singh directed to pay a sum of Rs.249621/- to claimant/OP no.2 with interest @ 18% per annum from 06.03.2017 till the date of realization. In the arbitration proceedings, complainant not appeared to defend his case. It appears, that he is defaulter in paying the installments. A pre seizure information for seizure of the vehicle was duly given to the police station at Amritsar on 28.07.2016 and thereafter the vehicle was seized and intimation was duly given to the Police Station Concerned. The complainant was served with registered letter dated 30.07.2016 to make the payment. After waiting 10 days OP no.2 sold the vehicle in the market for Rs.4,30,000/- on 17.09.2016.
7. The learned counsel for OPs relied upon judgments case titled as Magma Fincrop Ltd versus Gulzar Ali reported in 2016(2) CPJ 231 of Hon’ble National Commission, New Delhi wherein it has been held that “Hire Purchase agreement. Default in payment of installment – Forcible repossession of vehicle. Deficiency in service alleged. Arbitration clause. Arbitration award. Legality of – whether complaint can be decided by consumer fora after arbitration award already passed. Further case titled as Vishnu Chandra Sharma versus Sriram Finance Company reported in 2017(2) CPR 277 of Hon’ble National Commission New Delhi that maintainability in question. The provisions of Consumer Protection Act cannot be used in derogation of the Arbitration and Reconciliation Act, 1996, Remedy under CP Act is an additional remedy if the main remedy under the Act has not been taken. In the present case, it was made known to the petitioner/complainant that remedy under the Arbitration and Reconciliation Act was already taken by OP no.1 as per the provisions of the agreement. Therefore proceedings under the CP Act could not have been taken as an alternative remedy. Further, Case law titled as Beverly Park Maintenance Services Ltd versus Kashmir Fab Styles Pvt. Ltd reported in 2014(2) CPR 207 of Hon’ble National Commission, New Delhi that sustainability of claim of the same reliefs in complaint which were claimed before Arbitrator. Two proceedings for similar relief cannot run simultaneously in two Fora.
8. In the light of our above discussion, we are of the opinion that the complainant defaulted in making the payment of installments in time as per payment schedule which is placed on record as Ex.OP-2/2. This schedule was within the knowledge of the complainant and signed by himself in English Language. Loan agreement with terms and conditions executed between the parties and no one wriggle out from the same. OP no.2 also intimated to complainant regarding non-payment of installments vide letter dated 30.07.2016, but he has not bothered about the same. Arbitration proceedings also initiated by OP no.2 for recovery of amount of installments, but the complainant has also not appeared before the Arbitrator to defend his case. Post seizure intimation was also given to Police Station, Amritsar that vehicle was taken in a peaceful manner and intimated the borrower simultaneously of the repossession by letter.
9. Keeping in view the totality of the facts and circumstances of the case, the present complaint is not maintainable because the claim of the same reliefs in complaint which were claimed before Arbitrator. Two proceedings for similar relief cannot run simultaneously in two Foras. We find no merit in the complaint and same is hereby dismissed. However, no order as to costs or compensation.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after due compliance.
Announced in open Commission
9th of March 2021
Kuljit Singh
(President)
Jyotsna
(Member)
