Complaint No: 347 of 2019.
Date of Institution: 28.11.2019.
Date of order: 12.02.2024.
Ajaib Singh Son of Buta Singh, resident of Village Sujanpur P.O Khunda, PS Dhariwal, Tehsil and District Gurdaspur.
….....Complainant.
VERSUS
1. Shri Ram Transport Finance Company Ltd., is a finance company constituted and duly incorporated under the provisions of Companies Act, 1956 having its Registered Office at 1st Floor, Plot No. 8/20, Improvement Trust Colony, Scheme No. 1, Batala Road, Gurdaspur, Punjab – 143521, through its Authorized Representative / General Power of Attorney Sh. Satish Kumar.
2. Shri Ram Transport Finance Company Ltd., 101-105, Shiv Chambers B-Wind Sector 11, Belapur New Mumbai, through ADM Office.
….Opposite parties.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.K.S. Dhillon, Advocate.
For the Opposite Parties: Sh.Vinod Harchand, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Ajaib Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Shri Ram Transport Finance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant availed the services of the opposite parties for getting the loan sanctioned of Rs.4,00,000/- for the purchase of Tata Ashoka Leyland for which the complainant paid Rs.2.5 Lacs as down payment to the opposite parties and Rs.4,00,000/- was financed by the opposite parties for three years and Rs.16,000/- was fixed as monthly installment which were to be paid for three years only by the complainant. It is pleaded that the complainant paid Rs.80,650/- to the opposite parties which was duly received by them vide receipts dated 22.04.2008, 19.05.2008, 12.06.2008, 22.09.2008 and 20.05.2009. The vehicle financed by the opposite parties was the only source of livelihood from which the complainant was making his both the ends meet. It is further pleaded that on dated 15.11.2017 the opposite parties forcibly took away the truck from District Gurdaspur and despite of many protests and requests by the complainant, the opposite parties turned a deaf ear towards the request of the complainant. The opposite parties also got the signatures of the complainant on some blank papers and assured him that his remaining loan will be adjusted by them after selling the vehicle and he will be issued NOC. It is further pleaded that the complainant is approaching the opposite parties to issue him NOC for the last two years, but they are procrastinating the genuine requests of the complainant and threatening the complainant to involve him in false case of recovery and will misuse the blank papers which they got forcibly signed from the complainant. The complainant came to know that the opposite parties have misused the blank papers which they got signed from them at the time of repossessing the vehicle. It is further pleaded that the non-supply of the NOC to the complainant after the receipt of the financed amount alongwith interest is deficiency of services by the opposite parties and the selling the vehicle of the complainant without any notice is an unfair trade practice for which the complainant is entitled for its value and the excess amount received by the opposite parties. The complainant is also entitled for compensation for forcibly repossessing the vehicle of the complainant on dated 15.11.2017. The value of which is assessed as Rs.10 Lacs. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the amount of Rs.10,00,000/- (Rupees Ten Lacs only) alongwith interest at the rate of 18% till its realization as compensation for repossessing the vehicle of the complainant forcibly and Rs.1,00,000/- (Rupees One Lac only) may also be given for causing mental agony, harassment and Rs.10,000/- also be paid as litigation expenses to the complainant, in the interest of justice OR any other order as it deems fit may also be passed in favour of the complainant.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable and this Ld. Commission has no jurisdiction to try and entertain the present claim as there is an Arbitration agreement between the parties to raise all the disputes, issues and differences before the Arbitrator. It is pleaded that the matter in hand had already been decided by Sh. Baldev Singh Sodhi, Sole Arbitrator, Addl. District & Sessions Judge (Retired) Chamber No. 2018, New District Courts Complex, Ludhiana, Punjab vide its Award dated 12.08.2017. The execution against the said Award is pending before the Hon'ble Court of Sh. Jatinderpal Singh Khurmi, Addl. District Judge Gurdaspur. It is further pleaded that the complainant has concealed the true material facts from this Ld. Commission and the vehicle in question is used for commercial purpose and earning profits, hence the present complaint is not maintainable before this Ld. Commission and the present complaint is time barred. It is further pleaded that the complainant had got financed his vehicle No. RJ-31-G-4112 Ashok Leyland, AL TUSKER Super 2514 H-FBT-LP vide Loan No. TSLJLNDR0000237 dated 11.10.2007 for a loan amount of Rs.4,75,000/- to be returned with interest in 47 equal monthly installments of Rs.16,139/- each approximately, but it is wrong that the complainant had paid Rs.2.5 Lacs as down payment to the answering opposite parties. The complainant is habitual defaulter in the payment of loan installments and an amount of Rs.24,10,185/- is still due against the complainant upto 07.11.2020. It is further pleaded that the vehicle in question was surrendered by the complainant to the answering opposite parties by his sweet will with the consent to sell the same in the open auction to adjust the sale amount in the loan account of the complainant. It is further pleaded that complainant had also agreed to pay the rest of the due loan amount to the answering opposite parties and as per the instructions of the complainant the vehicle in question was sold in the open auction to the highest bidder, but the complainant had failed to pay the rest of the due loan amount to the answering opposite parties and at present an amount of Rs.24,10,185/- is due against the complainant. It is further pleaded that the vehicle in question was sold as per the consent and will of the complainant and there is no unfair trade practice on the part of the answering opposite parties. It is further pleaded that complainant is not entitled for any compensation or any alleged amount from the answering opposite parties as falsely alleged in this present complaint. It is also wrong that the assessed value was ever Rs.10 Lacs.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Ajaib Singh, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-6.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Danny Salhotra, (Branch Manager, POA and Authorized Representative of Shri Ram Transport Finance Co. Ltd., Gurdaspur) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-6 alongwith reply.
6. Rejoinder not filed by the complainant.
7. Written arguments filed by the complainant, but not filed by the opposite parties.
8. It is argued by the counsel for the complainant that the complainant had availed the loan of Rs.4,00,000/- for the purchase of Tata Ashoka Leyland and complainant paid Rs.2.5 Lacs as down payment to the opposite parties and Rs.4,00,000/- was financed by the opposite parties for three years and Rs.16,000/- was fixed as monthly installment which were to be paid for three years only by the complainant. It is further argued by the counsel for the complainant that the complainant paid Rs.80,650/- to the opposite parties upto 20.05.2009. It is argued by the counsel for the complainant that on 15.11.2017 the opposite parties forcibly took away the truck from Gurdaspur and despite of many requests by the complainant, the opposite parties turned a deaf ear towards the request of the complainant and opposite parties also got the signatures of the complainant on some blank papers and assured him that his remaining loan will be adjusted by them after selling the vehicle and he will be issued NOC. It is argued by the counsel for the complainant that the complainant is approaching the opposite parties to issue him NOC for the last two years, but they are threatening the complainant to involve him in false case of recovery and will misuse the blank papers which they got forcibly signed from the complainant. It is argued by the counsel for the complainant that complainant has came to know that the opposite parties have misused the blank papers which they got signed from them at the time of repossessing the vehicle. It is further pleaded that the non-supply of the NOC to the complainant after the receipt of the financed amount alongwith interest is deficiency of services by the opposite parties and the selling the vehicle of the complainant without any notice is an unfair trade practice for which the complainant is entitled for its value and the excess amount received by the opposite parties. The complainant is also entitled for compensation for forcibly repossessing the vehicle of the complainant on dated 15.11.2017.
9. On the other hand counsel for the opposite party has argued that complaint is not maintainable and this Commission has no jurisdiction to try and entertain the present complaint as there is an Arbitration agreement between the parties to raise all the disputes, issues and differences before the Arbitrator. It is further argued that the matter in hand had already been decided by Sh. Baldev Singh Sodhi, Sole Arbitrator, Addl. District & Sessions Judge (Retired) Chamber No. 2018, New District Courts Complex, Ludhiana, Punjab vide its Award dated 12.08.2017. The execution against the said Award is pending before the Hon'ble Court of Sh. Jatinderpal Singh Khurmi, Addl. District Judge Gurdaspur and as such the complaint is liable to be dismissed. We have heard the counsel for both the parties and gone through the record.
10. It is admitted fact that the complainant availed the services of the opposite parties for getting the loan sanctioned for the purchase of Tata Ashoka Leyland. It is admitted fact that the complainant paid Rs.80,650/- to the opposite parties which was duly received by them vide receipts dated 22.04.2008, 19.05.2008, 12.06.2008, 22.09.2008 and 20.05.2009.
11. The only disputed issue for adjudication is whether the present complaint can proceed further in view of the fact that matter in hand has already been decided by Sh. Baldev Singh Sodhi, Sole Arbitrator, Addl. District & Sessions Judge (Retired) Chamber No. 2018, New District Courts Complex, Ludhiana, Punjab vide its Award dated 12.08.2017 and the execution against the said Award is pending before the Hon'ble Court of Sh. Jatinderpal Singh Khurmi, Addl. District Judge Gurdaspur.
Perusal of file shows that opposite party has placed on record copy of award of the arbitrator Ex OP4 which has been passed on 12-8-2017 and execution application is also pending in the court at Gurdaspur but the complainant has concealed the said facts from this commission. But since the award has been passed in the matter and although the said award is exparte but the complainant has got the option to get the said exparte proceedings set aside but instead of doing so, the complainant has filed the present complaint without any cause of action and by concealment of facts, which is not permissible under law.
12. We have also placed reliance upon the Judgment of Honáble supreme court of India in SLP © 18339 titled as M/s TATA Finance Ltd vs Raju Dutta & others where in it has been held as under :-
"It may be mentioned here that as per the agreement entered into between the parties, it was stipulated that in the case of dispute between the parties, the matter could be referred to an Arbitrator. It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred. It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the Consumer Fora, this will lead to contradictory judgments as has been done in this case. The order passed by the Fora below in this case is not legally tenable. The Fora below have wrongly arrogated to themselves the power, which these Fora did not possess. In case, the petitioner has got any objection against the Arbitrator, he should challenge the award before the higher Court, as per Law. The question whether the complainant was served in this case, whether the award passed by the Arbitrator is correct or not, all these questions do not come in the ambit of power of the Consumer Commission. …” Mr. Bedi further submitted that Special Leave Petition (Civil) No.33307 of 2015 titled as “Gulzar Ali v. M/s. Magma Fincorp Ltd.” filed against the aforesaid decision of the National Commission was dismissed by this Court on 02.11.2015. If according to respondent no.1, he was not served with any notices and the proceedings in arbitration had gone ahead ex parte, it was open to him to avail of the remedies available under the Arbitration Law but the proceedings in arbitration could not directly or indirectly be commented upon or challenged before the Consumer Forum".
13. From the above discussion and case law cited above we are of the view that present complaint is not maintainable before this commission in view of the fact that matter in hand has already been decided by Sh. Baldev Singh Sodhi, Sole Arbitrator, Addl. District & Sessions Judge (Retired) Chamber No.2018, New District Courts Complex, Ludhiana, Punjab vide its Award dated 12.08.2017 and the execution against the said Award is pending before the Hon'ble Court of Sh. Jatinderpal Singh Khurmi, Addl. District Judge Grasper. As such the present complaint is dismissed.
14. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
15. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 12, 2024 Member.
*YP*
