Suresh Kumar Vs. TATA Motors Finance Ltd. Etc.

Present:                    Sh. Arvind Sharda, Adv Counsel for the Complainant.

                                 Sh. AK Murgai, Adv Counsel for the OPs.

1.                         Through this order, we are going to dispose of an application filed by the applicant/OPs for dismissal of the complaint being not maintainable as the arbitration award regarding the contract bearing No.5000781210 has already been passed on 24.07.2013.

2. The brief facts of the application are that the aforesaid title complaint is pending in this Forum. The complainant has filed the complaint by concealing the true and correct facts from this Forum. The complainant in his complaint nowhere stated about the arbitration proceedings and its decision by the arbitrator. Therefore, the present complaint is liable to be dismissed on the ground of concealment of material facts. The complainant obtained a loan facility of Rs.1,24,800/- for purchasing the Nano Car and in this regard, loan agreement dated 31.08.2011 was duly executed by the complainant in favour of the applicant/respondent No.1. After adding the interest of Rs.49,200/-, the total contract value comes to Rs.1,74,000/-. At the time of disbursement of loan, all the terms and conditions incorporated in the loan cum hypothecation agreement were duly read over and explained to the complainant in vernacular language also and after admitting the same as correct and genuine, they put their respective signatures as token of correctness. The complainant and her husband further undertook to remain abide with the terms and conditions of the loan agreement and further assured to repay the loan installment in time as agreed without committing any default. It is a fact to mention over here that the complainant had committed default and failed to repay the monthly loan installment in time as agreed. The copy of the agreement is attached.

3. That since the complainant failed to adhere the financial discipline of the agreement and did not pay the agreed amount and consequently the applicants under the circumstances send the legal notice dated 13.02.2013, whereby the agreement was duly terminated, the loan recalled and outstanding amount were claimed from the complainant, failing which it was intimated for initiation of arbitration proceeding by appointing Mr. Nitin Chavan, Chartered Accountant as Sole Arbitrator as per terms and conditions of the agreement, but despite the receipt of the notice, the complainant did not pay the amount and consequently, the matter was referred to Sole Arbitrator Mr. Nitin Chavan Chartered Accountant, who on 24.07.2013 passed the arbitration award in favour of the applicants for an amount of Rs.1,17,339.91 with interest @ 18% per annum to be computed from 12.02.2013, till realization along with cost of Rs.5000/-. After passing of the award, the complainant make certain part payments, but despite that an amount of Rs.36,159/- is still due against the complainant as per the updated account statement dated 21.07.2018 and lastly prayed that the present application may kindly be allowed and the complaint may kindly be dismissed being not maintainable.

4. Notice of the application was given to the respondent/complainant, who filed a reply and contested the application by controverting the facts as detailed in the complaint and lastly prayed that the application of the applicants/OPs is without merits and the same may be dismissed.

5. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

6. After taking into consideration the entire facts, we find that the arbitration award is admittedly passed on 24.07.2013 and photostat copy of the same is available on the file and further find that the instant complaint filed much after passing of the aforesaid arbitration award dated 24.07.2013, whereas the instant complaint filed on 12.06.2018 and the averment made in the application in Para No.5 by the applicant/OP that after passing of the award, the complainant make certain part payments of the total amount of Rs.1,17,339.91, but still an amount of Rs.36,159/- is still due against the complainant, but no specific reply has been given, of Para No.5 of the application, by the respondent/complainant that whether the complainant has paid part payment after passing of the arbitration award. Whenever there is no specific reply of any para, then it presume to be admitted, if the allegations are not categorically denied. So, if the respondent/complainant has already paid part payment of the award amount, then the factum of passing the arbitration award well within the knowledge of the complainant, but the complainant intentionally and willfully did not disclose the passing of the award in its complaint rather in a clavering way, the complainant made reliance upon a pronouncement of the Hon'ble National Consumer Disputes Redressal Commission, reported in 2017(3) C.P.J. 187, titled as “Sahara India Financial Corporation Ltd. & Ors Vs. Ashok Kumar Jha”. In the said judgment, the Hon'ble National Commission has held that the OP failed to refer the factum of filing consumer complaint, in the pleading of the arbitration. In order to make application of the aforesaid judgment of Hon'ble National Commission, the learned counsel for the respondent/complainant referred a judgment of this Forum, decided on 18.02.2013 between the same party. No doubt, the said consumer complaint was decided prior to decision of the arbitrator and if the applicant/OP did not disclose the passing of award by the Consumer Forum on 18.02.2013, the complainant is also guilty for not referring the decision of the arbitrator in the present complaint and as such, the aforesaid judgment (Supra) 2017(3) C.P.J. 187 NC, is not helpful to the respondent/complainant, in any manner because both the parties have concealed some facts from one way or the other in respective proceedings.

7. Apart from above, the counsel for the respondent/complainant could not able to convince this Forum that the matter decided by the Consumer Forum on 18.02.2013 between the same party is of a same dispute, as decided by the arbitrator, if so, then the verdict of the previous complaint decided by the Consumer Forum having no hindrance to decide the instant application.

8. Furthermore, it is established on the file that the matter involved in the present consumer complaint has been already adjudicated by the arbitrator on 24.07.2013 by passing an award between the same party and if the award has been already passed by the arbitrator, then Consumer Forum is barred to entertain a consumer complaint on the same facts as decided by the arbitrator and in support of these observations, we like to refer a pronouncement of the Hon'ble National Commission, cited in 2016(2) C.P.J. 231, titled as “Magma Fincorp Ltd. Vs. Gulzar Ali”.

9. In view of the aforesaid judgment of the Hon'ble National Commission, the complaint of the complainant is not maintainable before this Forum, therefore, application of the applicants/OPs is accepted and in consequences of that application, the complaint of the complainant being not maintainable is hereby ordered to dismiss. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

30.10.2018 Member President