Orissa

Rayagada

CC/336/2016

Sri G. Sankar - Complainant(s)

Versus

The Chier Manager, Cholomondolam Investment Ltd., - Opp.Party(s)

Self

23 Oct 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.336 / 2016.                                 Date.    23    .     10  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri G.Sekhar, S/O: Late  G.Laxman Rao, At: Hatipathar Road, Po/Dist:Rayagada  (Odisha).

Sri  Edazala Babu Rao, S/O: Late E.Guaubu, Guarantor, Address same as above.                                                                                                                 …. Complainant.

Versus.

1.The Branch    Manager, M/S. Cholamandalam Investment Finance Company Ltd.,New Colony, Po/Dist: Rayagada-765 001.

2.The    Manager, M/S. Cholamandalam Investment Finance Company Ltd., Regd. Office, at “Dara House”, No.2, NSC bose road, Parrys Chennai- 600 001.

                                                                                                .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self..

For the O.Ps:- Sri Ram Prasad Patra, Advocate, Rayagada.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non issue of  N.O.C towards finance  vehicle  Regd. No. OR-18C-2036 Bolero Taxi Cab  inter alia refund the excess payment  taken  towards  above finance vehicle  a sum of Rs.2,41,887/- for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.Ps No.1 & 2 put in their appearance and filed joint written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.1 & 2 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No. 1 & 2. Hence the O.P No.  1 & 2 prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.P  No. 1 & 2 and from the the  complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had  availed loan  bearing loan agreement No. XVFPRAY 00000609821 for purchase of  commercial  vehicle  Bolero SLX  bearing Regd.  No. OR-18C-2036 from the   O.Ps  a sum of Rs.4,30,000/- during the month of  20^th July,2011.  The  complainant  had  agreed to pay  the finance charges a sum of Rs.1,66,410/- thus in all a sum of Rs.5,96,410/- was payable by the complainant to the O.Ps. in  42 E.M.I  as stated in the agreement commencing from 10^th.August, 2011 and ending on Dt. 10^th. February,2015.  

The main grievance of the  complainant is that  the O.Ps have  threatened  they will  forcibly took possession of the   above vehicle from his   possession  inter alia threatening   will initiate Arbitration proceeding and recover the vehicle and amount from them. Hence this C.C. case.

 

The O.Ps in their written version  contended that  the  complainant is irregular in repayment  and admittedly he is a defaulter of E.M.Is. Since the complainant has failed to pay the instalments and he knows  that consequential action by  the O.Ps for  recovery of the loan dues  is inevitable. The O.Ps had addressed letters and sent notices to the complainant but of no avail.   The complainant was  informed  about the balance payable by him and as the complainant did not pay the amount, the O.Ps have initiated arbitration proceeding. The O.Ps had followed the procedure laid by the terms  and conditions of agreement of hypothecation and other formalities as per the existing  laws. No deficiency in service or negligence or irregularities can be  attributed to the O.Ps.

The O.Ps. contended that  the complainant failed to pay the installments as per schedule,  the O.P. addressed   letters  and gave notice but the  complainant did not turn up to pay the instalments and the O.Ps have initiated arbitration proceeding. The  O.Ps. had issued demand notice  and several personal contact with the complainant   for payment of the loan amount. As the complainant did not pay the loan amount, the  O.Ps have  initiated arbitration proceedings. Sri C.T,Mohan, Chennai, the Sole Arbitrator had passed award on Dt.  11.02.2015.  (Copies  of the  Arbitration order is in the file  which is marked as Annexure-1).  It is contended  on behalf of the  O.Ps that once the arbitrator has passed the award, it becomes enforceable under Section-36 of  the Arbitration Act. It is  submitted that there would be a conflict of jurisdiction  in relation to  the proceedings instituted by the complainant under the provisions  of the C.P. Act and the  proceedings under the Arbitration Act instituted by the O.P.

This forum relied citation it is held and reported in CPJ-2007(1) page No. 34 the Hon’ble  National Commission  where in  observed  in the case of  Instalment Supply Ltd. Vrs.  V.Kangra Ex-Serviceman Transport Co. and another  held that once an award is passed by the  Arbitrator  in respect of the same subject matter that of the   complaint  pending  before the Consumer Forum, the consumer forum  would not entertain the complaint.

In the light of the decision of the Hon’ble National Commission wherein it was held that once the complainant  opts for remedy of arbitration it may be possible to say that he can not subsequently file a complaint  under the Consumer Protection  Act. In the circumstances we are of the opinion  that the complaint is not maintainable  under the C.P. Act, 1986.

The  learned counsel for the O.P. submitted  that  the Execution case No. 8 of 2017  is sub-judice  before the Court of the District Judge, Rayagada  and the complainant  also had appeared before the  above court to defend the case( copies of the petition is in the file which is marked as Annexure-2).   In view of the pendency the execution  of the  Award of Learned Arbitrator before the District Judge, Rayagada this forum  cannot  give any relief to the complainant as prayed.

                                                ORDER.

In  resultant with the above  observation the complaint petition is disposed off on contest.

Accordingly  the case is closed. Parties are left to bear their own cost.

Dictated and corrected by me

Pronounced on this        23^rd.        Day    of  October,  2018.

 

Member.                                             Member.                                              President