BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

I.A. No. 350/2016

in

C.C. No. 32/2016

ORDER DATED: 16.03.2017

Petitioners/Opposite parties:

1. Shriram Transport Finance Company Ltd., registered office at Mookambika Complex, No.4, Lady Desika Road, Mylapore, Chennai 600 004 and branch office situated at Shriram Transport Finance Company Ltd., 1^st Floor, SN Complex, Neyyattinkara, Thiruvananthapuram represented by its Managing Director.

2. The Branch Manager, Shriram Transport Finance Company Ltd., 1^st Floor, SN Complex, Neyyattinkara, Thiruvananthapuram.

Counter Petitioner/Complainant:

Shaji. D, S/o Ansaru Pillai, residing at Vilayil Veedu, Killi, Kollodu P.O, Mechira, Thiruvananthapuram from Poovannarathalakkal Veedu, Etturuthi, Kattakkada, Malayinkeezhu.

                             (By Adv. C.S. Raj Mohan & Abhishek. R.V)               

ORDER

This I.A filed by opposite parties to hear the question of maintainability as preliminary issue on the ground that the subject matter of the present complaint falls outside the summary jurisdiction as envisaged under the Consumer Protection Act, 1986 and is basically a commercial transaction.  The complaint is barred by virtue of Sec. 8 of the Arbitration and Conciliation Act, 1986 as amended in 2015.  Sec. 8(1) reads: “A judicial authority, before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then notwithstanding any judgment, decree or order of the Supreme Court of India or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.   The relation between the parties is governed by the Loan cum Hypothecation Agreement.  As per the agreement, it is very pertinent to note that the agreement is having an arbitration clause in it.  Now the parties are in dispute regarding the amount due to the opposite parties under the Agreement and also regarding the subject matter of the agreement.  Thus a dispute has arisen with regard to the realization of the amount due under the agreement its quantum and the subject matter the vehicle.  The provision of the Article 15 of the agreement provides for arbitration in case of dispute, Article 15 of the agreement reads as follows: “All disputes, differences or claims arising out of these presents or as to the construction, meaning or effect hereof or, as to the rights and liabilities of the parties hereunder shall be settled by arbitration to be held in Trivandrum in accordance with the provisions of the Arbitration and Conciliation Act 1956 or any statutory amendments thereof any statute enacted for replacement thereof and shall be referred to the sole arbitration of a person to be nominated/appointed by Shriram.  In the event of death, refusal, neglect, inability or incapacity of the persons so appointed to act as an arbitrator, Shriram may appoint new arbitrator.  The award including the interim awards of the arbitrator, shall be final and binding on all parties concerned.  The arbitrator may lay down from time to time to procedure to be followed by him in conducting arbitration proceedings and shall conduct arbitration proceedings in such manner as he considers appropriate.  Any proceedings to be initiated in any court of law in pursuance of this arbitration shall be instituted and held at the court at Trivandrum only”.  Therefore since agreement provides for arbitration in case of dispute, this Forum is not jurisdiction to entertain under Sec. 8(1) of the Arbitration and Conciliation Act.  Therefore the present complaint is lacking jurisdiction and is therefore liable to be dismissed/returned at the threshold.  Notice given to complainant.  Complainant has not filed objection in this I.A.  Heard.  We are of the opinion that agreement provides for arbitration in case of dispute, the complainant should have opted for that first and this Forum has no jurisdiction to entertain under Sec. 8(1) of the Arbitration and Conciliation Act.  Hence I.A allowed and complaint dismissed for lack of jurisdiction.

In the result, I.A allowed and complaint dismissed for lack of jurisdiction. 

         Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

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