Haryana

Ambala

CC/15/144

Jaswant Singh - Complainant(s)

Versus

Tata Motors Finance Ltd. - Opp.Party(s)

Puran Singh Paul

14 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 144 of 2015

                                                          Date of Institution         : 27.05.2015

                                                          Date of decision   : 14.09.2017

 

Jaswant Singh son of Sh. Jeet Ram, resident of village kesri, Tehsil and Distt. Ambala.

 

                                                                             ….…. Complainant.

 

Tata Motors finance Ltd. Branch Ambala Cantt. through its Managing Directror/Authorized Signatory.

 ….…. Respondents.

 

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   SH. ANAMIKA GUPTA, MEMBER.       

 

Present:       Sh. Puran Singh Paul, counsel for complainant.

                   Sh. Jai Singh, counsel for OPs.

 

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had took loan of Rs.1,87,000/- from OP on 17.10.2012 and at that time, the complainant was made to sign several papers including an agreement, which was not filled up and the vehicle purchased by the complainant was also hypothecated with the OP. Further submitted that the complainant has paid a sum of Rs.1,72,000/- to the OP by way of monthly installments but the OP is still demanding a sum of Rs.1,71,918.84/- and an amount of award, which has been got passed at the back of the complainant and the complainant is not able to understand how the amount of Rs.1,71,918.84P has been made, due from him by the OP. IN fact, the complainant has to pay a meager amount, which is to pay to the OP against his liability. Despite the fact that the complainant is pay a sum of Rs.1,72,000/- to the OP by way of installments but the official of the OP are threatening to take the vehicle in possession and sell the same and the complainant had file a civil suit before the Civil Court at Amnbala wherein the OP appeared and filed its written statement after 3/4 dates and from the written statement it came to the notice of the complainant that a huge sum of Rs.1,71,918.84-P are being shown to be due from the complainant, they have also stated in written statement that an Arbitration Award has also been procured on the back of the complainant by the OP. It is also pertinent to mention here that the OP is harassing the complainant as they have threatened to take the vehicle in possession and due to the fear of the OP, the complainant not plying the vehicle since last one month and is facing hardship. Hence, the present complaint.

2.                Upon notice OP appeared and contested the present complaint by filing written reply. OP in his written statement submitted that  the complainant Jaswant Singh entered into a Loan-cum-Hypothecation-cum-Guarantee Agreement bearing No.5001063179 dated 17.10.2012 with Tata Motors Finance Ltd. in terms whereof the complainant availed a vehicle loan for purchasing commercial vehicle Model TATA ACE ZIP bearing Regn. NO.HR37C9463 and the total contract value of the said loan Agreement was Rs.3,17,438/- which was to be repaid in 47 equated monthly installments of Rs.6754/- each payable on 15^th of every month and the complainant had further agreed to abide by the terms and conditions of the said loan agreement duly signed and executed by him and further promised to repay his loan installments on time and further agreed to pay the delayed payment charges etc. in the event of default in repayment of loan installments. Further submitted that since the Arbitration Award has already been passed and there is an alternative remedy existing in the Arbitration & Conciliation Act, 1996 and the entire gamut of issues raised by the complainant in the instant complaint including, inter alia, the title of the said vehicle and  that of the rights obligations and liabilities of the respective parties to the said agreement and in connection with the said vehicle forming the subject matter thereof are to be governed strictly by the provisions of the said Act and the loan Agreement and as such the instant suit is accordingly bad in law. So, OP has prayed for withdrawal of the present complaint.

3.                To prove his version complainant tendered his affidavit as Annexure C-X alongwith document as annexure C-1 to C-27 and closed his evidence. On the other hand, counsel for OP tendered affidavit Annexure R-X alongwith document as Annexure R-1 to R-3 and close the evidence.

4.                We have heard learned counsel for the complainant and carefully gone through the case file

5.                Before proceeding further it is desirable to discuss whether the present complaint is maintainable before this Forum or not. From the perusal of award passed by the Arbitrator on 12.03.2015 (Annexure R-1) qua the matter in controversy involved in this case, which shows that the matter was referred to the Arbitrator prior to 27.05.2015 i.e. the date of filing of the complaint by the complainant before the District Forum and the Arbitrator in para No.3 of the said award dated 12.03.2015 has mentioned that "This Tribunal's notices dated 13.12.2014 and 12.01.2015 were duly served on Respondent (Mr. Jaswant Singh)". Since, the matter in dispute has already been decided by the Arbitrator, therefore, it cannot be said that the complainant was unaware of the proceedings as well as award dated 12.03.2015. Though, the proceedings before Arbitrator are optional and one can either seek reference to an arbitrator or file a complaint under the Consumer Act. If one of the party opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if any party chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. The present complaint is filed by the complainant after passing the award by the Arbitrator on 12.03.2015 (Annexure R-1). It will thus govern the dispute between the parties. In view of the decision of the Arbitrator which is binding on parties, the Fora below cannot pass an order by overlooking the award as per the judgment in case title Instilment Supply Ltd. vs Kangra Ex-Serviceman Transport I (2007) CPJ 34 (NC) whereby Consumer Protection Act, 1986- Section 2(1) (c)- complaint – maintainability –Arbitration award already passed- All disputes between complainant and OP settled by arbitration in accordance with arbitration agreement – In terms of said award, complainant owes O.P. sum of Rs.58,114/- towards arrears of hire money, etc – award passed before filing of complaint- Former will govern dispute between parties – Decision of arbitrator binding – order of Fora overlooking said award, not sustainable, set aside.

 6.                         Reason recorded above, it is clear that If any party chooses for arbitration proceedings in the first instance, then he cannot file a complaint before the Consumer Forum. Looking to the facts and circumstances of the present complaint, we are of the view that the matter is already decided on 12.03.2015 by the Arbitrator before filing of the present complaint. So, the present complaint is not maintainable under Consumer Protection Act, 1986. Hence, the present complaint is dismissed with no order as to costs being not maintainable. Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on :14.09.2017                                  (D.N. ARORA)

                                                                                       President

 

    

     (PUSHPENDER KUMAR)

                                                                                       Member

 

 

           (ANAMIKA GUPTA)

                                                                                       Member