PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that the Opposite Party be directed to pay Rs.3,02,000/- with interest @ 12% p.a. from 30/11/2009 till the date of filing of the complaint and further interest on the said amount @ 15% p.a. or such other rate of interest as this Forum may deem fit from the date of filing of complaint till its realization.  The Complainant has also prayed for cost of this complaint and such other reliefs as this Forum may deem fit and proper in this complaint.

2)        According to the Complainant, he had availed loan facility from the Opposite Party under the loan hypothecation facility No.7000021192, dtd.14/07/2008 in respect of the vehicle bearing Registration No.MH-03-AM-9510, Wagon-R Model of Maruti Company.   It is submitted that even  though  the said agreement was executed  by  the Complainant, inadvertently, the Opposite Party had not given him copy of the said agreement.  The said agreement was in printed form and execution of agreement was the condition precedent for release of loan amount. The same loan agreement was about the principal amount. Mode of payment, equal monthly installments (EMI), interest, etc. It is the case of the Complainant that he had paid Rs.1,25,000/- in lumpsum at the time of purchasing the said vehicle and the balance amount of Rs.3,47,000/- was financed by the Opposite Party.  The Complainant was supposed to pay Rs.8,068/- per month for the period of 60 months and after the payment of all installments the vehicle was agreed to be free from loan. It is alleged that the Complainant had taken the loan from Mumbai Office of the Opposite Party, but the Opposite Party mischievously mentioned its branch office at Delhi where no transaction had taken place.

3)        According to the Complainant, due to financial crises the Complainant could not pay EMI for the months from July, 2009 to November, 2009.  It is alleged that however, the Complainant had paid defaulted amount much prior to confiscation of vehicle by the Opposite Party and he was always ready to pay the defaulted amount.  The copies of the receipts of the payment made by the Complainant during June, July, August, October, 2009 are at Exh.‘A’ colly.  It is submitted that the Advocate for the Opposite Party Mr. Ashish Agrawal had invoked arbitration clause no.23 by his letter dtd.21/11/2009.  In the said letter it was recorded that the Complainant had failed to pay Rs.3,17,893/-.  In the said letter the reference of some notice dtd.12/10/2009 was also made but the same was not received by the Complainant. The Complainant has therefore, alleged that the arbitration clause was invoked by the Opposite Party without notice of recalling loan amount. The Opposite Party did not handover the copy of the document of loan agreement to the Complainant for raising his defence.  The copy of the letter of Advocate Ashish Agrawal dtd.21/11/2009 is at Exh.‘B’.  It is submitted that Ms. Jyoti Mestry was appointed as Sole Arbitrator by the Opposite Party. She vide letter dtd.23/11/2009 informed the Complainant that she has fixed Arbiter reference and preliminary meetings of the party on 11/12/2009 at the address and time mentioned in the said letter.  She had also explained the scope of the meeting in the said letter.  The copy of the said letter is marked as Exh.‘C’.           

4)        According to the Complainant, on 25/11/2009 the above referred vehicle owned by the Complainant was re-possessed by the Opposite Party from the address of the Complainant at Bhandup.  It is submitted that no prior information of such drastic steps was given to the Complainant.  The said action of the Opposite Party was highhanded act, after invoking arbitrary clause which amounts to misuse of process of law. It is alleged that the Complainant was paying the installments as shown in Exh.‘A’ and there was no reason for the Opposite Party to take forcible possession.  The re-possession agent of the Opposite Party prepared an inventory which is marked as Exh.‘D’. It is submitted that on 25/11/2009 when the vehicle was seized the Opposite Party falsely recorded that the said vehicle was surrendered by the Complainant and accordingly informed the Complainant by issuing letter to that effect.  The Opposite Party by the said letter gave 7 days time to pay an amount of Rs.3,50,238.38 from the date of receipt of the letter and it was informed to the Complainant that upon failure to pay the amount the vehicle will be disposed of.  The copy of the said letter is marked as Exh.‘E’.

5)        According to the Complainant on 10/12/2009 the advocate for the Opposite Party by letter informed the Complainant “Tata Capital Limited terminated loan agreement dtd.14/07/2008 and had taken lawful possession of vehicle MH-03-AM-9510. It was also informed that the said vehicle came to be disposed of, sold on 30/11/2009 for consideration of Rs.2,73,000/-.”  It is alleged that the said letter issued by the Opposite Party is totally false.  It is submitted that from the contents of the said letter and in view of the aforesaid facts the Opposite Party played a systematic fraud and sold the vehicle of the Complainant for much less amount than the prevailing market price.  It is alleged that the Complainant had maintained the said vehicle in excellent condition and it could have fetched Rs.3,75,000/-.  It is submitted that the Opposite Party thereafter issued one contradictory letter to the Complainant dtd.10/12/2009 through Advocate Law Nexus & Associates.  The copy of the said letter is marked as Exh.‘F’.  The Sole Arbitrator informed the next date of hearing as 29/12/2009 at 12.30 p.m. to 02.30 p.m. by letter dtd.11/12/2009.  The copy of which is marked as Exh.‘G’.  It is alleged that the copy of the said letter was received by the Complainant on 29/12/2009 at 2.25 p.m.  It is submitted that the Complainant by letter dtd.16/12/2009 pointed out the Opposite Party that it had taken unlawful and forceful possession of the vehicle in question on 25/11/2009 from the custody of the Complainant and thereby  caused  hardship  and  mental agony by not giving any legal opportunity for payment of the dues of the Opposite Party.  The copy of the letter is marked as Exh.‘H’.  The Complainant also wrote the letter to RTO not to transfer the vehicle in question to anybody by letter dtd.17/12/2009.  The copy of the said letter is marked as Exh.‘I’.  The Complainant by letter dtd.30/12/2009 informed the Arbitrator that he received her notice for appearance on 29/12/2009 at 2.25 p.m.  A copy of the said letter is marked at Exh.‘J’.  According to the Complainant the next date of hearing was on 06/01/2010 and on the same date the Opposite Party withdrew the reference without consent of the Complainant. It is submitted that the Arbitrator passed readymade printed order allowing withdrawal of the reference.  The copy of the said order dtd.06/01/2010 is marked as Exh.‘K’. Thereafter, the Complainant wrote letter dtd.14/01/2010 and 08/02/2010 to the Advocate of the Opposite Party Mr. Ashish Agrawal.  The copies of the said letters are marked as Exh.‘L’ & ‘M’.  It is alleged that the advocate for the Opposite Party Mr. Agrawal wrote letter dtd.31/03/2010 and demanded Rs.73,643.15 paise. without replying the points raised by the Complainant in his letter dtd.08/02/2010. The copy of the said letter dtd.31/03/2010 is marked as Exh.‘N’. It is submitted that the Complainant wrote final letter dtd.28/07/2010 through his advocate pointing out illegality and called upon the Opposite Party to pay Rs.1,02,000/- i.e. deficit amount for which the vehicle in question was sold and Rs.1,75,000/- for mental agony and Rs.25,000/- towards advocate fees quantifying total amount of Rs.3,02,000/-.  The copy of the said letter is marked as Exh.‘O’.  The copy of the said letter was also sent to Opposite Party and sole arbitrator and advocate for the Opposite Party.  The Opposite Party however, till filing of the complaint did not reply the said letter.

6)        According to the Complainant, the Opposite Party has acted in most highhanded manner and the Complainant is entitled to compensation as the Opposite Party has failed and neglected to provide proper service to the Complainant which amounts to deficiency in service and unfair trade practice.  The Complainant has submitted that the Opposite Party is liable to compensate the loss and injury caused to the Complainant as mentioned in para 1 of this order.

7)        The Opposite Party contested the complaint by filing written statement.  It is contended that this complaint is misconceived, false, bogus and illusory. It is submitted that the Complainant has suppressed vital  facts  and is guilty of suppression of facts. The complaint is therefore, liable to be dismissed on that count. It is contended that the dispute between the parties has already been terminated by way of an arbitration award dtd.08/09/2010.  It is the case of the Opposite Party that the said award is valid binding and legal as the same has not been challenged by the Complainant under Section 34 of the Arbitration and Conciliation Act, 1996.  It is contended that the said arbitration award has already been put in execution by filing an execution application in the High Court at Bombay. The said facts has been suppressed by the Complainant and therefore, the complaint cannot be entertained as the issue has been finally decided by way of the arbitration award dtd.08/09/2010 passed in favour of the Opposite Party.  The copy of the arbitration award is marked as Exh.‘B’.  It is submitted that the copies of the notices of hearing issued from time to time by the Arbitral Tribunal to the Complainant and the Opposite Party are marked as Exh.‘C’. 

8)        The Opposite Party has relied the observations made by the Arbitration in the award passed against the Complainant.  It is submitted that the Arbitral Tribunal after considering the merits of the case was pleased to declare that the Complainant is liable to pay Rs.76,643.15 paise with interest @ 12 % p.a. from 01/12/2009 till the date of realization of the dues to the Opposite Party and cost of Rs.5,500/-.  The Opposite Party denied the parawise allegations and contended that the complaint be dismissed with cost.

9)        The Complainant has filed affidavit of evidence.  The Opposite Party has filed affidavit of evidence of Mr. Rajesh Sangam, the Collection Manager of the Opposite Party.  Both the parties have filed their written arguments.  We heard oral arguments of Ld.Advocate Shri. Rakesh Agrawal and Shri. Ankush Navghare, Ld.Advocate for the Opposite Party.  We have perused the documents produced by both the parties. 

10)      The Advocate for the Complainant Shri. Agrawal submitted that the Opposite Party had obtained Arbitral Award by fraud against the Complainant and therefore, the present complaint is maintainable against the Opposite Party. He relied the observations in the case of S.P. Chengalvaraya Naidu V/s. Jagannath, reported in AIR 1994 SCC (1) 1 and submitted that in the said case it is observed that fraud avoids all judicial acts.  Shri. Agrawal, Advocate thus, submitted that the complaint be allowed and the reliefs claimed against the Opposite Party may be granted. 

11)      The Advocate for the Opposite Party Shri. Navghare made submission that the Complainant himself has filed various documents alongwith complaint and his affidavit showing that the vehicle was re-possessed by giving inventory list to the Complainant on 25/11/2009. The said document bears the signature of the Complainant.  The Opposite Party thereafter, on the same day issued one letter to the Complainant to deposit Rs.3,50,238.38 within 7 days from the receipt of the said letter. Shri. Ashish Agrawal, Advocate for the Opposite Party thereafter issued notice to the Complainant dtd.10/12/2009 and called upon to pay Rs.78,643.15 after the disposal of vehicle MH-03-AM-9510 for consideration of Rs.2,73,000/-.  The record also shows that thereafter the Arbitrator Jyoti Mestry issued notice to the Complainant to attend the arbitration proceeding on 29/12/2009. He made submission that all these documents placed on record show that the Complainant was well aware of the action taken against him by the Opposite Party.  He thus, submitted that the allegations made by the Complainant that the arbitral award was obtained by fraud cannot be considered as legal and proper.  Shri. Navghare Advocate made submission that in view of the facts of this case the complaint itself is not maintainable before this Forum and liable to be dismissed.  In support of his submission he relied the observations in the case of Navneet Jha S/o Shri. Kavindra Nath Jha V/s. Branch Manager, Magma Shrachi Finance Ltd., decided by Chattisgarh State Consumer Disputes Redressal Commission in Appeal No.12/441, dtd.25/08/2012. Shri. Navghare Advocate made submission that the fact of the present case and the facts in the aforesaid case are much identical and therefore, the complaint is liable to be dismissed. 

12)      While considering the claim made in the complaint upon going through the documents place on record by both sides we do not agree with the submission made by the Complainant that the vehicle in question for which the Complainant had obtained loan from the Opposite Party and which was hypothecated with the Opposite Party was forcibly taken by the Opposite Party.  The document of re-possessed vehicle inventory list dtd.25/11/2009 which is signed by the Complainant show that the possession of the vehicle was taken by the Agent of the Opposite Party with the consent of the Complainant as the said document bears the signature of the Complainant. The other documents show that the Opposite Party had given opportunity to the Complainant to pay the dues within stipulated time from the repossession of the vehicle and thereafter, the  Arbitrator was appointed and the Arbitral Award was passed by the Arbitrator. Upon considering the documents placed on record the contention raised by the Opposite Party that the dispute between the Complainant and the Opposite Party has already been culminated by way of an Arbitration Award dtd.08/09/2010 passed by Arbitral Tribunal can be considered as legal and proper.  It is the fact that the Complainant had not challenged the said arbitral award or filed any application under Section 34 of the Arbitration and Re-conciliation Act 1996.  In the case relied by the advocate for the Opposite Party all the aspects involving the controversy of this case have been dealt with the Hon’ble State Commission, Chattisgarh by considering the observations of the Hon’ble Supreme Court in the case of City Corp, Maruti Finance Ltd. V/s. S. Vijayalaxmi, AIR 2012 Supreme Court 509 and the decision of National Commission in the case of PramodKumar Roy V/s. Shreeram Transport Finance Co. Ltd. III (2012) CPJ 523 (NC) and many other cases discussed in the said order and held that –

          “If once award is passed by the Arbitrator then only remedy available to aggrieved party is to file an application under Section 34 of the Arbitration and Re-conciliation Act, 1996 for setting aside the award.  Looking to the record of the District Forum, it appears that the Complainant/Appellant did not opt to file an application under Section 34 of the Arbitration and Re-conciliation Act, 1996 before competent District Judge and instead of filing application under Section 34 of the Arbitration and Re-conciliation Act, 1996 the Complainant/Appellant continued in prosecuting the matter before District Forum.

          Looking to the facts and circumstances of the case we are of the view that once the matter is referred to the Arbitrator and award is passed by the Arbitrator, then the complaint before the District Forum, under Consumer Protection Act, 1986 is not maintainable.”   

        As discussed above the correspondence made by the Opposite Party before and after taking possession of the vehicle gave intimation to the Complainant. The Complainant himself is the party to the document of surrendering the vehicle in question to the agent of the Opposite Party.  We therefore, hold that the Complainant has failed to prove that  any  fraud  was committed  against him by the Opposite Party while re-possessing the vehicle and in the proceeding before the Sole Arbitrator for obtaining arbitral award against the Complainant.  The authority therefore, relied by the advocate for the Complainant in his argument (cited supra) is not applicable to the facts of this case and we hold that the complaint cannot be held maintainable against the Opposite Party.  In these circumstances we hold that the Opposite Party did not commit any deficiency in service by repossessing the vehicle from the Complainant and made sale of it for the recovery of the dues of the Opposite Party.  We therefore, hold that the complaint filed against the Opposite Party is devoid of any merits and deserves to be dismissed.  In the result the following order is passed –

O R D E R

                   i.          Complaint No.09/2011 is dismissed with no order as to cost.  

           ii.          Certified copies of this order be furnished to the parties.