1.                     The brief facts of the case of the complainant are that he is the TATA Make 10 Wheeler Truck bearing No. OR 10H 3469 and by hypothecating the said vehicle he availed a loan of Rs.3, 50, 000/- from OP.1 during 10/2014 vide Agreement No.XSHUJRE00001318904 and the loan was to be paid in 33 EMIs @ Rs.15, 000/- for 20 months and Rs.10, 800/- for 13 months as told by OP.1 without supplying any loan related papers.  It is submitted that the complainant incurred heavy expenditure on the repair of the vehicle and also incurred some expenditure for his own ailments.  In the above premises, the complainant was not able to maintain the vehicle by himself and decided to sell/lease out his vehicle.  Accordingly as per agreement with OP.3, the complainant received part consideration of Rs.1, 30,000/- and both the parties agreed that after clearance of loan dues, the complainant will transfer ownership of his truck in favour of OP.3.  The complainant was pursuing EMI repayment matters with all the Ops and was informed that the payment of EMI was regular.  It is further submitted that on 15.11.2016 either the OP.1 has illegally repossessed or the OP.3 surrendered the vehicle to OP.1 and on contact, the OP.3 stated that he has paid Rs.2, 50,000/- towards repayment of loan dues up to Oct.’16 to the Ops.  The complainant thereafter contacted OP No.1 to issue statement of accounts so that the entire pending EMIs will be paid and the vehicle will be released but the OP.1 did not cooperate.  However, the OP.1 handed over inventory list and copy of pre-sale notice during December, 2016 demanding Rs.2, 30,393/-.  The complainant submitted that he was never issued with default notice but the OP.1 ceased the vehicle illegally without issuing pre-possession notice.  Further the OP has sold the vehicle at Rs.1, 11,000/- when the value of the vehicle was Rs.8.00 lacs and demanded Rs.1, 51,451/- towards rest of the dues violating the terms of agreement for which the complainant suffered pecuniary loss and sustained mental agony.  Thus alleging unfair trade practice on the part of the Ops he filed this case praying the Forum to direct the Ops to pay Rs.7.00 lacs towards cost of the vehicle and to pay Rs.1, 10,000/- towards compensation and cost to the complainant.  It is further prayed that the OP.3 be directed to refund the loan dues not deposited by him and to pay Rs.1.00 lac towards compensation to the complainant.

2.                     The Ops 1 & 2 filed counter denying the allegations of the complainant but admitted that the complainant had taken a loan of Rs.3, 50,000/- from OP.1 during 10/2014 vide Agreement No.XSHUJRE00001318904 and the loan was to be paid in 33 EMIs @ Rs.15, 000/- for 20 months and Rs.10, 800/- for 13 months under which the wife of the complainant was co-borrower.  It is contended that the complainant was doing transport business with heavy vehicle and as such he is not a consumer as per C. P. Act.  Further the relationship between the Ops 1 & 2 and the complainant herein are as creditor and debtor and hence his case is not coming under C. P. Act.  It is also contended that due to non payment of EMIs the complainant surrendered his vehicle on 16.11.2016 and the OP.1 is empowered to sell the vehicle to adjust the loan dues.  In this manner, the OP.1 has sold the vehicle on 28.2.2017 when the total outstanding amount of loan dues was Rs.2, 30,393/- as on 21.11.2016.  Contending that the entire process has been done as per loan agreement, the Ops prayed to dismiss the case of the complainant.

3.                     The Notice on OP No.3 could not be served in his address supplied by the complainant and hence the OP.3 could not appear in this case.

4.                     The complainant as well as Ops 1 & 2 has filed certain documents in support of their cases.  The Ops 1 & 2 filed affidavit.  Heard from the A/Rs of the parties and perused the materials available on record.

5.                     In this case availing of loan of Rs.3.50 lacs vides Loan Agreement No. XSHUJRE00001318904 from OP.1 during 10/2014, on mortgage of his vehicle bearing No. OR 10H 3469 by the complainant is an admitted fact.  It is also an admitted fact that the said loan dues of Rs.3.50 lacs plus finance charge of Rs.1, 06,420/- totaling Rs.4, 54,620/- was to be repaid in 35 monthly installments commencing from 01.12.2014 and ending on 01.10.2017.  Under this agreement, the complainant was the borrower and his wife stood as guarantor.  It is also seen that the complainant has leased out the vehicle in question to OP.3 as he could not maintain the vehicle and as per agreement between the complainant and OP.3, the later was to repay the loan installments.  The case of the complainant is that the OP.3 was regularly paying the loan dues as he ascertained from OP No.1 and 3, but on 15.11.2016 either the OP.3 has surrendered the vehicle or the OP.1 has illegally repossessed the vehicle and thereafter sold away it without any intimation.  According to the complainant, the OP.1 has not sent any intimation before repossession and hence he is facing trouble.

6.                     The Ops 1 & 2 stated that the complainant was irregular in payment of loan dues and on 16.11.2016 the complainant has surrendered his vehicle as he was unable to pay the monthly installments and in the said surrender letter, the complainant has stated that the Ops 1 & 2 are empowered to sell the vehicle and adjust the sale proceeds against the outstanding dues.  Accordingly the OP.1 sold the vehicle and demanded rest of the dues to adjust loan dues.

7.                     Now it is to be seen as to whether the complainant has surrendered his vehicle to the OP.1 on being failure to repay the installments.  The complainant in his complaint petition stated that either the OP.3 has surrendered the vehicle or the OP.1 has illegally repossessed the vehicle on 16.11.2016.  In this context, we have gone through the copy of surrender letter dt.16.11.2016 filed by OP No.1.  On perusal of said letter, it was seen that, perhaps the surrender letter has been signed by OP No.3.  In that letter it has been declared that the complainant is unable to pay the monthly installments and hence is voluntarily surrendering the vehicle bearing No. OR 10 H 3469.  It is further declared that the Ops 1 & 2 is empowered to sell the vehicle and adjusts the sale proceeds against the loan dues.  Hence the surrender of vehicle is true.

8.                     After getting the vehicle, the OP.1 has processed for sale of the vehicle and accordingly on 22.11.2016 has sent pre sale letter to the complainant and the guarantor as well through Speed Post and the complainant and his wife has received the same.  The complainant stated that after repossession of the vehicle he met the OP.1 and requested him to issue statement of accounts so that the outstanding loan dues can be paid and the vehicle released but the OP.1 did not cooperate.  This contention of the complainant is not supported by any evidence.  Not a single correspondence is available on record regarding any approach of the complainant to OP.1.  After receiving pre sale notice, the complainant has not taken any step for release of his vehicle.  It is evident that the complainant is a defaulter in payment of loan dues and the vehicle has been surrendered to OP.1 as per surrender letter available on record.  It is also a fact that the vehicle after pre sale notice to the complainant, has been sold at Rs.1, 11,000/- on 28.02.2017.

9.                     It is also seen that after adjustment of sale proceeds the Ops have sent Advocate’s notice with RPAD dt.10.03.2017 informing sale of the subject vehicle and called upon the complainant to pay Rs.1, 51,451/- within 7 days of said notice but the complainant did not come forward to pay the same.  It is further seen from the record that the Ops on 22.4.2017 invoked the arbitration clause by sending a letter of appointment to the arbitrator requesting adjudication of the claim.  It is stated in the arbitration proceeding that the complainant and his wife sent a reply to the arbitration case denying claim of the Ops.  The present case before this Forum has been filed on 10.05.2017 and in the meanwhile order in the arbitration case has come out on 23.11.2017.  Once the award was passed then equal efficacious remedy to the complainant is to file objection against the said award.  After the award was passed in the arbitration proceeding, as per settled principle of law this Forum lacks jurisdiction to pass any such order and as such the present proceeding under the Act is not maintainable.

10.                   In view of above facts and circumstances, we do not find any merit in the case of the complainant which needs to be dismissed.  In the result, we dismiss the case of the complainant but without costs in the peculiar circumstances of the case.

(to dict.)