SHRI A.P.MUND, PRESIDENT:- Complainant Ananda Kumar Panda has filed this case against the O.Ps to get back money against his loan account. Case of the complainant is that he being an educated un-employed approached the O.P. company for providing financial assistance to purchase one Truck (Tipper) of model Tata SK 1613/36 for his self-employment. He signed an agreement along with his guarantor with the O.Ps on dt.01.3.2008. The agreement was valid from dt.01.3.2008 to dt.01.02.2012. The O.P. company provided a sum of Rs.8,37,912/- and the complainant was to deposit Rs.1,10,000/- as earnest money, which was deposited by the complainant on dt.29.2.2008.
2. The complainant purchased the said tipper from Mithila Motors Limited, Jamshedpur on dt.5.3.2008 and got the vehicle registered with R.T.O., Sambalpur on dt.09.4.2008 vide Regd.No.OR-15-M-1342. The complainant along with the guarantor agreed to repay the loan amount of Rs.8,37,912/- in 47 EMIs equal monthly installment basis . The first installment fall due on dt.01.4.2008 for Rs.20,000/- and the rest EMIs were to be paid Rs.24,850/- each. The complainant signed some printed forms of the O.P. Company and handed over 47 numbers of signed cheques.
3.The complainant run the said tipper from dt.09.4.2008 to dt.19.01.2010 and paid around 25 EMIs to the O.Ps which amounted to Rs.2,80,950/-. The business fall into wrong time and the complainant had family problems and as he was also suffering from illness; he could not run the tipper successfully and hence surrendered the tipper with the O.Ps on dt.19.01.2010 at their Sambalpur office of the O.Ps. At the time of surrender the tipper was in good condition and the O.P. Company sold the tipper at a good price.
4. At the time of surrender, the tipper was two years old. At the time of purchase the value of the tipper was Rs.10,69,912/-. The complainant spend Rs.2,50,000/- for body building and another Rs.60,000/- for registration, insurance and permit etc. According to the complainant hence, the total cost of the vehicle comes to around Rs.13,79,912/- and on this amount with 20% depreciation the value was to be Rs.11,03,930/- at the time of surrender of the tipper on dt.19.01.2010. This is according to the complainant.
5. The complainant submits that he had paid Rs.2,80,950/- towards installments, Rs.1,10,000/- as earnest money, spent Rs.2,50,000/- on body building and Rs.60,000/- for registration, insurance, permit etc. As such the complainant has invested Rs.7,00,950/-. Complainant alleges that the O.Ps earned Rs.4,02,980/- as net profit from him.
6. Complainant further states that taking advantage of his simplicity, O.Ps appointed one sole arbitrator and get ex-parte award to proceed against him. Besides the O.Ps have filed a complaint case before the 7th Metropolitan Magistrate, Kolkata vide Complaint Case No. C/53895/09 and Trail No.6465 of 09 U/s 138 of N.I. Act which is pending at the time of filing of this case. Complainant claims that he is to receive back Rs.4,02,980/- from the O.Ps, but the O.Ps instead of refunding the said amount are filing cases in different courts, which is mischief and unfair trade practice indulged by the O.Ps.
7. The complainant served Advocates notice on dt.20.5.2013 on the O.Ps demanding return of the money. Complainant further averred that he is a consumer under the Consumer Protection Act and the case is within limitation and jurisdiction of this Forum. On the basis of the above, complainant has prayed that he should be refunded a sum of Rs.4,02,980/-.
Documents filed by the complainant are Xerox copies of
- Registration Certificate particulars of tipper OR-15-M-1342 (2) Summon from the 7th Metropolitan Magistrate court, Kolkata along with complaint case (3) Arbitration Notice dt.14.9.2009 and Postal receipts (4) Advocate’s notice served on the O.Ps dt.20.5.2013 and postal receipts along with A/D.
Complainant also cited and filed one case Law reported in (2004) 1 Supreme Court Cases.
8. The O.Ps appeared through their Advocate and filed written version denying all the contentions, claims, demands, allegations, averments etc. According to the O.Ps, complainant does not fall within the definition of consumer under the C.P. Act and the relationship between the complainant and the O.Ps is that of borrower and lender, as such no consumer dispute arises. Rather it is a civil dispute for which the complaint is not maintainable in this Forum.
9. According to the O.Ps the loan agreement contained the clause for arbitration, where all the disputes, differences whatsoever arising out of the said agreement shall be referred to the sole arbitrator. As there was a dispute between the parties, it was referred to the learned Arbitrator and the learned Arbitrator vide its order dated.20.10.2009 awarded in favour of the O.Ps. The O.Ps further averred that in a recent judgement passed by the Hon’ble State Commission, Odisha in Revision Petition No.97 of 2012 decided on dt.16.7.2013 held that if the dispute has been decided by Arbitrator, subsequent complaint is not maintainable. Copy of this decision has not been annexed with the version.
10.The O.Ps further averred that mere mentioning for purchase of tipper for earning livelihood under self-employment cannot be believed and on this complainant cannot be treated as a consumer under the C.P. Act in view of the order of the Honble Supreme Court in (Laxmi Engineering Wroks Vrs. PSG Industrial Institute) cited in 1995 AIR SC-1428 , wherein it has been clearly explained that, A person who purchased an auto rickshaw, truck, a lathe machine or other machine to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser who purchases it for plying it as a public carrier by himself would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. Thus in view of the aforesaid observations of the Honble Courts the complainant fails to be under the definition and meaning of ‘Consumer’ for which the case is liable to be dismissed.
11. According to the O.Ps, the transaction between the parties is a contract, where both the parties have to perform their part of obligation. The O.Ps have performed their part by sanctioning the loan, but the complainant failed to perform his part by not paying the EMIs regularly. He was a chronic defaulter and vide the order of the Honble Supreme Court in the case of Bhati Knitting Company Vrs. DHL Worldwide Express Courier(1996) 4 SCC-704, where it was held that when the complainant signs the contract documents, he is bound by its terms & conditions and the onus would be on him to prove the terms & the circumstances, in which he has signed the contract. It is settled principle of law that a person who claims equity, must do equity. It is admitted by the complainant that the matter was referred to the arbitrator and learned arbitrator ordered the Arbitration case in favour of the O.Ps and against the complainant on 20.10.2009, the copy of which is filed as Annexure-B. It is further submitted that in a judgement passed by the Honble National Commission in Revision Petition No.2363 of 2002 decided on 5.10.2006, it was held that A complaint cannot be decided by the consumer forum after an arbitration award is already passed. Hence the complaint should be dismissed on this ground only.
12. The submission of the O.Ps is that the complainant was a defaulter. He earned good amount from the business of running the tipper, but did not make any payment of the loan and hence huge amount remained unpaid. Finally the complainant himself surrendered the tipper and adjust the balance amount with the said old vehicle. According to the decision of the Honble National Commission reported in as Surendra Kumar Sahoo C/O. Balaram Sahoo At/P.O. Jajpur Road District Jajpur Vrs, Branch Manager Indussind Bank Ltd., Bharatia Tower Link road, Badambadi, Cuttack, Odisha decided on October 1,2012 in Revision Petition 3319 of 2012 the Financier has absolute right to repossess the vehicle in case of default in payment of installments by the borrower and in this case admittedly there is default in payment of installments and the party himself has surrendered the vehicle.
On the basis of the above submissions, O.Ps claim that complainant is not entitled to any relief and this complaint petition is liable to be dismissed on merit with exemplary costs in their favour. The O.Ps filed annexures-A & B and cited some other decisions for our perusal.
13. Heard the learned counsels for both the parties and perused the complaint petition, written version filed by the O.Ps and documents and citations filed by the parties and placed on record. After careful consideration of the facts and circumstances of the case, we draw the following issues.
(i) Whether this complaint petition is maintainable after arbitration proceeding is over and order has been passed by the learned arbitrator?
(ii) Whether the complainant is entitled to any relief as claimed for?
14. Complainant has filed a citation reported in (2004) 1 S.C.C.-305, wherein at para-16, the
Honble court has held that “it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceeding pursuant to a contract entered into between the parties. We have given our careful consideration over the remarks made by the Honble court and observe that in this present case this finding is not applicable. We find that the learned arbitrator has already passed the award before filing of this case, hence we should withdraw our hands from this complaint petition as Honble State Commission, Odisha in Revision Petition No.97 of 2012 decided on dt.16.7.2013 has held that after the dispute has been decided by arbitrator, subsequent complaint is not maintainable. Copy of the decision has been filed. So, we must respect the order of our own State Commission and withdraw ourselves from this dispute as the complaint was filed after order passed by the arbitrator.
15. Taking into consideration the facts and circumstances discussed above, and applying the principles enunciated by our own State Commission to the present case, we hold that this complaint is not maintainable before this Forum and accordingly pass order for dismissal of this case without passing any order as to costs.
