Karnataka

Chitradurga

CC/20/2019

Sri Mallikarjuna M.Y, S/o Yellappa - Complainant(s)

Versus

Sri RamaTransport Fin.Co.Ltd., Branch Office, - Opp.Party(s)

Sri.K.Veerabhadrappa

05 Sep 2019

ORDER

COMPLAINT FILED ON:07/01//2019

DISPOSED      ON:22/10/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:20/2019

DATED: 22^nd   October 2019

PRESENT :-     Smt. C.M.Chanchala.                     …. President

                           B.A.L.,,LL.B.,                 

                            

                        SRI. SHIVAKUMAR.K.N    :              MEMBER

                     M.Com., LL.B.,

 

……COMPLAINANT/S	Sri. Mallikarjuna M.Y. S/o Yellappa Aged about 50 years, Owner of Lorry bearing Reg. No.KA-24/5787, R/o Chitraiahnahatti, Challakere Tq., Chitradurga District.  (Rep by Sri. M.Veerabhadrappa,   Advocate)
V/S
…..OPPOSITE PARTY	Srirama Transport Finance Company Limited, Branch Office, Jyothi Complex, Ground Floor, Near Ranganatha Theatre, OPP:APMC, Bengaluru road, Challakere town-577522  (ReP by Sri. K.B. Chandrappa, Advocate)

Pronounced on 22^nd of October 2019  .

Written by C.M.Chanchala, President.

ORDERS

 

1.    This is a complaint of alleged deficiency of service filed under section 12 of the Consumer Protection Act,1986 by Sri.Mallikarguna,  the Complainant against the Opposite parties (for short ‘OP’ ) praying to order for payment of balance amount of Rs.5,80,000/- from OP with 12 % interest and compensation of Rs.2,00,000/- for damages, mental agony, cost of the proceeding - etc.

The complaint:-

 

2.  The case, in brief of the complainant is that he availed housing vehicle loan of Rs. 8,00,000/- from the OP by entering Hypothecation agreement , and as per the terms of the said agreement, the complainant has to re pay the loan amount with interest in 47 installment, in each installment he has to pay Rs. 15,000/- . The complainant has paid Rs. 3,05,000/- towards installments to OP, due to his mental tress he could not pay the balance amount, hence OP has seized the vehicle without any notice on 27-05-2017 on the ground of non-payment of installment amount and sold the same  to the 3^rd party.  After sold the vehicle the OP has also issued legal notice to the complainant on 21-12-2018 demanding balance amount of Rs.5,85.680/-.  Hence he alleged deficiency of service on the part of OP and prayed for refund of the amount with interest and also compensation. .

 

3.   After hearing on admission the complaint was admitted and  notice was ordered to be issued to the OP  to file its written versions under section 13(2) of the Consumer Protection Act,1986 (  in short “the Act) . The OP 1 has appeared through its counsel and filed written version.

  Defense:-         

4.   The opposite party contested the claim of the complainant and further contended that the complainant committed default in repayment and thus the vehicle was repossessed in compliance with the procedure as provided in the agreement. In this regard, it is further contended that demand notices were sent asking the complainant to settle the outstanding amount but he failed to settle the outstanding dues. The complainant failed to respond even when the pre-sale notice dated 23-06-2017 was issued to him. It was also submitted that when the complainant initiated the arbitration proceeding, the consumer complaint cannot be maintainable. Hence, the present complaint needs to be dismissed.

Evidence:-

5.   The complainant got himself examined as PW-1 by filing his affidavit as a part of examination in chief and documents produced by are marked as EX- A 1 to A 5 and closed the evidence.

6.    On behalf of OP one Sri.Hanumanthappa, GPA holder of OP got himself examined as RW-1 by filing his affidavit as a part of examination in chief and also got Ex.B-1 to R-5 marked and closed the evidence.

Arguments:-

7.  Heard both counsels. On perusal of the documents and pleading of both the parties the following issue arised for consideration is,

8.  " Whether the present complaint is maintainable before the forum as the matter is already proceeding before the Arbitrator".

Answer:-

9.   Answer for the above issue is negative for the following finding and reasons.

Findings:-

10.   Admittedly the complainant has not denied the proceeding before the arbitrator. Document produced by the OP  as EX- B 4 proves that the OP has initiated Arbitration proceeding against the Complainant before the Arbitral Tribunal under Arbitration application No. 453/2018.  As the proceedings under Arbitration Act are already going on, the proceedings under Consumer Protection Act, 1986 cannot proceed simultaneously. The National Commission has decided the issue in number of judgments as mentioned below:

1. National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and Another, (2012)2 SCC 506, wherein the Hon'ble Apex Court held as follows:-

 "29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act".

 2.   M/S. Magma Fincorp Ltd Vs Gulzar Ali, RP 3835 of 2013 decided on 17.04.2015,this Commission held as follows:-

 "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".

 

3.   Beverly Park Maintenance Services Ltd Vs Kashmir Fab Styles Pvt. Ltd., II (2014) CPJ 109 (NC);

4. T. Srinivas & Anr Vs Srija Constructions, I (2016) CPJ 552 (NC) and Vishnu Chandra Sharma Vs Sriram finance company ltd. & Anr, III (2017) CPJ 211 (NC).

11.    From the above judgments of the National Commission, the view of this Forum is very clear that proceedings under the Arbitration and Reconciliation Act and that under the Consumer Protection Act, 1986 cannot go together. Thus, the complaint is not maintainable under the Consumer Protection Act, 1986 in the present case. Accordingly, we answered this point in the Negative. 

    

12.  As the complaint is not maintainable under the Consumer Protection Act, 1986, we desist from considering other issues raised in the complaint. Hence we pass the following order.

                                     

                                                          ORDERS.

 

The present complaint filed by the complainant is dismiss.

No orders as to cost.

 The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 22nd  day of October 2019)         MEMBER                                                      PRESIDENT

ANNEXURE

Witness examined for the complainant side:

Complainant- Mallikarjun M.Y. has examined-in-chief by filing affidavit as PW1.

Documents marked for the complainant side:

01	Ex-A-1:-	Legal notice dated 16/04/2019
02	Ex-A-2:-	Purchase agreement.
03	Ex-A-3:-	Statement
04	Ex.A-4	Receipt
05	Ex.A-5:-	Loan receipt

Witness examined for the opponents 1:

RW-1:- Hanumanthappa  by filing affidavit evidence.

Documents marked for the opponents 1:                                                   

01	Ex-R-1:-	Sale Notice.
02	Ex-R-2:-	Hypothecation Agreement
03	Ex-R-3	Account statement
04	Ex-R-4	Arbitration petition
05	Ex-R-5	Notice dated 21/12/2018

 

        (C.M.Chanchala  )

                       President.

                                                                                     

 

 

       (Shivakumar K.N)

                                                                                 Member.