ORDER

(Passed on  20/11/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986  alleging illegal seizure and sell of complainant’s car without following due process of law by the OP and praying for refund of price of the car of Rs.2,02,493/- alongwith compensation of Rs.50,000/- and cost of Rs.25,000/-.

2.  The facts in short giving rise to this petition are that the complainant, by profession, is a medical practitioner and residing at Tukum, Distt. Chandrapur. The OP is a registered Finance Company.  The complainant purchased Nano car bearing No.MH 34 AA 5057 by obtaining finance from OP. The financed amount was Rs.1,70,000/- and the loan was to be repaid in 59 equal monthly installments of Rs.6,250/- each. The complainant also paid Rs.24,800/- by cash for insurance on 20/8/2011. The complainant regularly repaid the loan till occurance of accident of complainant’s husband. Due to injuries accrued in the accident,  husband of the complainant was admitted in hospital and was in coma for 4 months and therefore, there were irregular repayment of installments for that period.  The complainant refunded Rs.1,32,009/- till 19/12/2016, but on 17/12/2016 some professional goons of OP suddenly came to the house of complainant for seizure of the vehicle. At that time, the complainant was ready to repay the entire balance loan and shown his willingness to issue cheque, but it was  refused by the OP.

          On 18/12/2016, the vehicle of the complainant was seized by the goons of the OP without intimation and knowledge to the complainant by using duplicate key when the vehicle was parked near the house of the complainant. Immediately, the matter was reported to the Police Station, Durgapur, Distt.  Chandrapur by the complainant.  The OP seized the vehicle illegally without following due process of law. Therefore the complainant is deprived of the utilization of car and due to its non availability,the complainant suffered financial loss, mental torture and, therefore, he issued legal notice to the OP on 10/1/2017. But the OP did not comply the notice. Therefore, the petition is filed.

6.       The complaint is admitted and notice was served to the OP. The OP filed its reply and thereby denied allegations against it and submitted that the complainant was irregular in payment of loan installments.  The OP issued notices to the complainant at several times calling upon him to deposit the arrears of installments of loan.  The OP also issued notice of Arbitration. The matter was referred to arbitration. The arbitration award was passed on 22/4/2014. The complainant has not preferred any appeal against the award. The vehicle was sold after passing of award on 16/1/2017. The complainant has knowledge of reference of the issue to the arbitrator. The vehicle was legally seized and sold by issuing notice to the complainant. Therefore there is no illegality or Unfair Trade Practice on the part of OP. When the arbitration award has been already passed in the matter, the complainant has no locus standie to file fresh complaint before the Forum involving the same issue.  Hence the complaint is liable to be dismissed with cost.

78.     Counsel for the complainant argued that the complainant has refunded Rs.1,32,009/- till 19/12/2016 since the purchase of the car. Due to personal difficulties of the complainant, he was unable to deposit the regular installments, but he was ready to pay the balance amount by cheque, but it was refused by the OP. The OP has no right to seize and sell the vehicle of the complainant without his consent.  The arbitration award has not given permission to the OP to seize and sell the vehicle. The seizure and sell of the vehicle is done by the OP without  following due process of law. Therefore the complainant suffered in convenience and loss of earning. Therefore, the petition may be allowed.

9.         Counsel for the OPs argued that the Forum has no territorial jurisdiction to entertain the complaint because the award has already been passed by Arbitrator before filing of this petition in respect of same subject matter on which the present petition has been filed.

10. We have gone through the complaint, written versions filed by OP No.1 and OP Nos.2 & 3, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                                     Finding

1.   Whether  the Forum has jurisdiction to entertain the complaint ?  No 

2.  What order ?                                                                  As per final order..

As to issue No.1 & 2

11.      The vehicle was sold by the OP to the complainant on hypothecation

agreement and, therefore, the complainant is not the full owner of the vehicle till the last installment of repayment of loan is paid. There is also an Arbitration Clause in the agreement in case of dispute in respect of loan transaction. The dispute which is arbitrable is to be referred for adjudication to the Arbitrator. The dispute between the complainant and OP was referred to the Arbitrator with due notice to the parties to the arbitration. The arbitration award came to be passed on 18/6/2014. After passing of arbitration award, the OP had has a remedy to challenge the award before Civil Court U/s 34 of Arbitration and conciliation Act or under other provisions before the appropriate court. The award passed by the Arbitrator is an executatble order. Once the award is passed and the same matter is the subject matter before the Forum, then the dispute can not be entertained before the Consumer Forum as per judgment of National Commission in Instalment Supply Ltd. Vs.Kangana Ex Servicemen Transport Co.and Anr. CPJ 2007 (1) Page 34  by Hon’ble National Commission and in Navneet Za Vs. Magna Finance Co. Ltd. 2014 CPR Vol.3, page 11 by Hon’ble State Commission, Chhatisgadh. Therefore, the Forum has no jurisdiction to entertain the petition. Hence the petition is liable to be dismissed. 

         In view of our observations as above, the following order is passed..

Final order

1. The Complaint is dismissed.

2. No order as to costs.

3. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President