West Bengal

Bankura

CC/34/2022

Sri Biswanath Karmakar - Complainant(s)

Versus

Sri Utpal Das - Opp.Party(s)

Sandip Chakraborty

08 Aug 2023

ORDER

   IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION,  BANKURA

  Consumer Complaint No. 34/2022

Date of Filing: 16/11/2022

Before:                                        

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

 

For the Complainant:  Ld. Advocate Sandip Chakraborti

For the O.P. : Ld. Advocate Gobinda N. Ghosal

 

Complainant  

Biswanath Karmakar, S/o Late Fatik Karmakar, at Lalbazar, Thanagora, P.O. & P.S.Sonamukhi, District- Bankura, PIN-722 207.

Opposite Party

1.Utpal Das, Prop. Utpal Automobile, Patrasayer, Bishnupur Rd., PO & PS Patrasayer,

2.Sri Prasun Mahato, agent of TVS Credit Services Ltd., R/O & Workplace Trilochan Automobile, Bhagat Singh More, PO &PS Bishnupur, Dist Bankura-722 122

3.TVS Credit Credit Services Ltd, Jaylakshmi Estates, New No.29, Old No.8, Haddows Road, Chennai-600006 represented by Branch Manager, SAI TVS, Durgapur Branch, Junction Mall, City Center- 713216 Dist.Bankura                                    

                                                                             FINAL ORDER / JUDGEMENT  

Order No.10

Dated:08-08-2023

Both parties file hazira through advocate.

The case is fixed for filing written version I/D necessary order.

Statutory period for filing written version has already expired. So the case is taken up for disposal.

The Complainant’s case is that he purchased Two Wheeler TVS Victor Drum Red Motor Cycle on 27/08/2018 from O.P.1 with proper receipt under a Hire Purchase Agreement with O.P.3 on dt.03/09/2018 vide No.WB3078TW0055175. The Complainant having defaulted in installment had to surrender the Motor Cycle in favour of the O.P. No.3 who sold the same on 26/06/2020. Thereafter a Demand notice was served upon the Complainant on behalf of the O.P.3 for a sum of Rs.28,396/- . Without paying the sum the Complainant has approached this Commission for appropriate relief challenging the said demand.

Though the O.P.s made their appearance but they did not prefer to file any written version. On the contrary a petition was filed on 05/07/2023 on behalf of O.P.3 challenging the maintainability of the instant complaint case on the ground that an Arbitral award by the competent authority has already been passed on 07/10/2022 directing the Complainant/Borrower to pay the said sum of Rs.28,396/- due as on 26/06/2020 to the claimant i.e. O.P.3 and as such the Commission cannot further proceed to adjudicate the case.                                                                                                                                              

                                                                                                                                                                                            Contd……p/2

                                                                                                          Page: 2

-: Decision with reasons: -

In support of the maintainability issue a number of decisions has been referred to on behalf of the O.P.s contending inter alia that once an Arbitral award has been passed by the competent authority the Commission has no jurisdiction to entertain the case further.

Ld. Advocate for the Complainant has however submitted before the Commission that the Complainant is not aware of the Arbitral award and as such there is no legal bar to proceed with this case.

The Commission has gone through the Arbitral award dated: 07/10/2022 wherein the Complainant/Borrower has been held liable to pay a sum of Rs.28,396/- due as on 26/06/2020 to the claimant i.e. O.P.3. Said Arbitral award stands final as no proper forum has been moved by the Complainant to set aside the said award.

It is no doubt true that the Commission has authority and jurisdiction to decide any consumer dispute between the Financer and the Borrower even if there is an Arbitration Clause but in this case before filing of the instant complaint case O.P.3 / Claimant has opted to refer the matter to the Arbitrator in accordance with law and accordingly the Arbitral award came to be passed on 07/10/2022 before the filing of the instant case on 16/11/2022. Ld. Arbitrator has decided the same issue which is pending for adjudication before this Commission. The Commission now cannot sit on appeal over the said Arbitral award to take a different view as it will lead to conflict of decisions which is not desirable and permissible under law. Section 100 of the Consumer Protection Act, 2019 also provides so that the Commission cannot exercise its jurisdiction in derogation to any other law.

In view of the legal position stated above this Commission has no power and jurisdiction to settle the instant case in accordance with law.

Hence it is ordered……..

That the case is dismissed on contest on maintainability ground as aforesaid.

Both parties be supplied copy of this Judgement free of cost.

 

 ____________________                _________________          _________________

HON’BLE   PRESIDENT          HON’BLE MEMBER       HON’BLE MEMBER