2^nd Additional Bench

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No.   1599 of 2014

                                   Date of institution: 11.12.2014 

                             Date of Decision:    27.2.2015

1. Prem Chand Luna aged about 56 years son of Ditto Ram C/o Jiwan Jyoti Hospital, 120 Feet Road, Dilbagh Nagar, P.O. Basti Gujan, Jalandhar.
2. Darshana Devi W/o Prem Chand C/o Jiwan Jyoti Hospital, 120 Feet Road, Dilbagh Nagar, P.O. Basti Gujan, Jalandhar.

…..Appellants/Complainants

                                      Versus

1. The GE Countrywide Consumer Financial Services Ltd., a company incorporated under the Companies Act, 1956 having its registered office at 4, Link Road, Jangpura Extension, New Delhi through its Managing Director/Director/Manager
2. The GE Countrywide Consumer Financial Services Ltd., Shop No. 2 and 3, York Bldg. BMC Chowk, Opposite Hotel Leofort, GT Road, Jalandhar-144001 through its Branch Manager.
3. M/s Magma Fincorp Limited, a company incorporated under the Companies Act, 1956 with its registered office at Magma House, 24 Park Street, Kolkatta-700015 through its Managing Director/Manager.
4. M/s Magma Fincorp Limited, IInd Floor, 51, Central Market, Near Narinder Cinema, Jalandhar.

…..Respondents/Opposite Parties.

First Appeal against the order dated 3.11.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar.

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

Present:-

          For the appellants            :         Sh. Munish Goel, Advocate

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellants/complainants (hereinafter referred as “the complainants”) have filed the present appeal against the order dated 3.11.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter referred as “the District Forum”) in consumer complaint No.260          dated 6.8.2014 vide which the complaint filed by the complainants is not maintainable as they had participated in the arbitration proceedings.  

3.                The complaint was filed by the complainants under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘the OPs’)  on the allegations that the complainants had applied for housing loan and at that time various documents were got singed by them from the Ops and loan was sanctioned. The complainant had been regularly paying the loan with bonafide belief and Ops were charging the interest as per 180 EMIs. However, subsequently the complainant was surprised to know that without any information to the complainant, the Ops changed the rate of interest from 10.41% per annum to 15.29% p.a. and in case the EMI from Rs. 22,000/- to Rs. 25,701/-. It was further revealed that they had been charging floating rate of interest w.e.f. 7.6.2007 and number of EMIs were increased from 180 to 257. The Ops were not to change the floating rate of interest and to charge the fixed rate of interest @ 10.41% p.a. and to delete the rental and housing loan charges and to refund the excess amount of Rs. 31,930/- charged by them, compensation and litigation expenses were also demanded.

4.                Upon notice, the Ops moved an application for dismissal of the complaint that as per the agreement between the parties, there was arbitration clause and as per that clause in case of any dispute between the parties, the parties were required to be referred to the Arbitrator according to the provisions under Arbitration and Conciliation Act, 1996 (for short ‘Arbitration Act’), therefore, the complaint was not maintainable and the learned District Forum after relying upon the judgment “Fair Air Engineers Pvt. Ltd. and Another Vs. N.K. Modi” (1996) 6 SCC 385 and “National Seeds Corporation Limited Vs. P.V. Krishna Reddy” I (2009) CPJ 99(NC) and after perusal of the Arbitration Award, it was evident that the complainant had participated in the arbitration proceedings, therefore, the complaint was not maintainable.

5.                We have heard the counsel for the appellants.

6.                The counsel for the appellants argued that in view of the latest judgment of the Hon’ble Supreme Court in “National Seeds Corporation Limited Vs. M. Madhusudan Reddy” 2012(2) SCC 506 that remedy under the Consumer Act is in addition and not in derogation of any other law for the time being, therefore, in case the complainant comes under the definition of the ‘consumer’ then he has a right to maintain (lodge) a complaint under the CP Act. Whereas in the judgment “SBP and Co. Vs. M/s Patel Engineering Ltd. & Anr.” AIR 2006 SC 450, 7 Judges Bench held that mandate has been given under Section 8 of the Arbitration Act, 1996 that in case an application alongwith required documents is brought before the judicial authority, then the judicial authority is bound to refer the dispute of the parties to Arbitrator and the Consumer For a is also a Judicial Authority, it was so observed by the Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. and Another Vs. N.K. Modi” (supra) and accordingly, the parties had taken the matter to the Arbitrator.

7.                From the order passed by the learned District Forum, it is clear that the complainant had participated in the arbitration proceedings, therefore, in case according to the arbitration clause under the Act the parties were referred to the Arbitration and Arbitration award has been passed then the parties should go by that award. If affected then avail the remedy provided under the Arbitration Act. It is also a settled principle that in case a remedy has been availed at one form then that party cannot avail the same remedy before an other Forum even if there may be the jurisdiction. In case the appellants were of the view that the parties were wrongly referred to the Arbitration then they can challenge that order and once they have availed the remedy under Arbitration Act, 1996 and now they are debarred to choose the Consumer Fora, therefore, the learned District Forum has rightly observed that there complaint was not maintainable.   

8.                The counsel for the appellants was unable to make out any point in their favour for the admission of the appeal, therefore, the appeal so filed by the appellants/complainants is hereby dismissed in limine.

9.                The arguments in this appeal were heard on 23.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

 (Gurcharan Singh Saran)

Presiding Judicial Member

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

February 27, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member