Order No. -31 Dt.11/09/2014
Today is fixed for passing final order.
This is an application u/s 12 of C.P. Act 1986.
Complainant’s case in short is that he purchased a truck being registration no. WB-73/B-7419 from O.P.2,(Dealer) by taking loan from O.P.1 at a price of Rs.7,49,743. He paid Rs. 25,000/- for booking the truck and Rs.16,500 and Rs.1,64,743, in total Rs.2,06,243 to O.P.2 for taking delivery of the truck. As per terms of transaction between complainant and O.P.2, the complainant was further required to pay Rs.5,43,500. On 28/06/10 complainant and O.P.1 entered into an agreement for loan-cum-hypothecation being no.-OCV017149F1000259964 when the complainant took Rs.5,55,000 and the EMI was fixed at Rs.14,926 for 47 installments of EMI. On 24/07/10 the said truck met with an accident and was sent to garage of O.P.2 for repair and the truck was there for five months 22 days which is the source of his family’s livelihood. The complainant had paid Rs.3,36,000 through 13 cash receipt installments but the intention of O.P.1 was not clear as he told the complainant that the EMIs were at Rs.15,330 and the financed amount was Rs.5,70,000 and that the O.P.1 has taken many installments of Rs.15,330 from the cash receipt without any intimation to the complainant. On 11/02/13 O.P.1 toed the said truck without giving and intimation to the complainant. After receiving the said information the complainant made contact with office of O.P.1 and then O.P.1 demanded Rs.1,81,875 from him and the complainant had deposited Rs.90,000/- and got back his truck. O.P.1 always mislead him and for that the complainant has been suffering huge loss and mental harassment.
Hence this case.
The O.Ps. are contesting the case by filing separate Written Version denying and disputing inter-alia the claim and contention of the complaint.
Their specific stand of the O.Ps. is that the present complaint is barred by law and that this Forum doesn’t have jurisdiction to entertain and to adjudicate the same as the matter in dispute has been referred to arbitration and the Ld.Arbitrator has passed his Award on 04/02/13 and in compliance with the said award the vehicle in question was surrendered on 11/02/13.
POINTS FOR CONSIDERATION
1. Is the case/ application maintainable?
2. Is the complainant a consumer as per provision of Sec.2(d) of Consumer Protection Act.1986?
3. Has this Forum jurisdiction to hear and to adjudicate the matter in dispute between the parties to this case?
4. Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All points are taken up together for consideration and decision for the sake of convenience.
Seen and perused the pleadings of the parties and the documents filed. Also perused the written arguments filed by the parties. Now after due consideration of all these, the submission made by the Ld. Lawyers of both sides and the decision referred by the Ld.Lawyers in their Written Arguments we find that admittedly the complainant took loan from O.P.1 to purchase truck being registration no.WB-73/B-7419. Admittedly the complainant and the O.P.1 entered into a loan-cum-hypothecation agreement for complainant’s purchase of said truck. Admittedly there was arbitration clause in the said loan-cum-hypothecation agreement. Admittedly the O.P.1 had referred the dispute alleging default of payment by the complainant to the arbitrator in view of arbitration clause of that loan-cum-hypothecation agreement dt.28/06/2010 and that the Ld.Arbitrator has passed his award on 04/02/13. Now from the copy of the award filed by O.P.1 we find that the Ld.Arbitrator has directed the complainant to pay to O.P.1 a sum of Rs.4,89,335 alongwith interest @36%p.a. from 31/08/12 to 04/11/12 and further interest @24%p.a. from 05/11/12 till realization of the same with cost of Rs.7500. This case has been filed on 19/09/13. Therefore it is clear that the complainant has filed this case after passing of the Award. This being the position and in view of the decision of Hon’ble National Consumer Disputes Redressal Commission New Delhi reported in 1(2007)CPJ34(NC), !(2006)CPJ 610, III(2007) CPJ 425 NC II (1992) and CPJ 38(NC), wherein the Hon’ble NC has observed that, “ Arbitration Award already passed- All disputes settled by Arbitration - In terms of said award complainant owes money as arrears of higher money - Decision of arbitrator binding Fora should not passed order over- looking Award, Consumer Forum has no jurisdiction to pass any order once arbitration Award is passed, Sec3 of C.P.Act is of no help if provisions of arbitration already invoked, Arbitrator passed Award - Petitioner to take legal action before Civil Court”, we find and hold that although the complainant is a consumer yet he is not entitled to get any relief in this Forum, as this case not maintainable in this Forum because this Forum has no jurisdiction to decide and adjudicate the matter in dispute between the parties, which was referred to arbitration and has been settled by the Ld. Arbitrator by passing his award on 04/02/13 in terms of Arbitration clause in the loan-cum-hypothecation agreement entered into by and between the parties on 28/06/10(Annexure-A) and if the complainant is dissatisfied with the said award he is to file application/case to set aside the said award in a competent Court of Law or to take appropriate action as per provision of law in the proper court of Law.
All points are disposed of.
In the result the case/application fails.
Hence, it is
O R D E R E D
that the case/ application u/s 12 of the C.P.Act 1986 is dismissed on contest but in the circumstances we make no order as to cost.
Let copy of this final order be supplied to the parties free of cost forthwith in terms of Sec.5(10) of West Bengal Consumer Protection Rules 1987.