ORDERS ON I.A No.I
The complainant availed loan from opposite party No.1 and executed an agreement on 19.06.2014 to repay the loan amount by 24 EMIs. On dishonor of the cheque, the opposite party No.2 charged a sum of Rs.100/-, even though she had sufficient amount in her credit with opposite party No.2. The complainant suffered mental agony and financial loss to the tune of Rs.2,00,000/-, as such prays for the reliefs.
The opposite party No.1 filed an application with affidavit, under section 11 of the C.P.C, with a prayer to dismiss the complaint filed by the complainant on the ground of cause of action.
The complainant filed its objection to the application and submits that the application as filed is not maintainable.
The material placed on board perused and on hearing both parties, matter posted for orders.
The following points arises for our consideration:-
- Whether the opposite party No.1 establishes that there was no cause of action and thereby entitled for the reliefs?
- To what order?
Our findings on the above points are as follows:-
Point No.1:- In the affirmative.
Point No.2:- As per the final order.
REASONS
Point No.1:- The opposite party No.1 submitted that, the complainant had availed loan from it by executing a loan cum hypothecation agreement on 19.06.2014 and agreed to repay the entire loan amount with interest in 24 EMIs. The complainant defaulted in payment of EMI inspite of several reminders by it. As per the terms of the agreement, it had referred the matter to the arbitrator for the recovery of entire loan amount. The complainant contested the matter by leading evidence and several documents exhibited. On hearing both sides, the arbitrator adjudicated the matter by passing an award on 23.04.2015. In the meanwhile, the complainant had filed the complaint on the same cause of action and alleging the same contentions. Hence, the application.
The complainant submits in her objections to the application that, the same is not maintainable and liable to be dismissed. The complainant alleged the arbitration proceedings as against the law, since there was no arbitral case on 05.08.2014. Further, in the arbitration award the commencement of EMI was not stated, since the opposite party No.2 failed to furnish the ECS mandate form to opposite party No.1 within time, as such there is deficiency in service by opposite parties and the arbitration fail to give relief for deficiency in service, hence, the complainant approached this Forum on 15.04.2015. Hence, the complaint is maintainable and the I.A.No.1 filed by opposite party No.1 is liable to be dismissed.
However, the opposite party No.1 relied upon the judgement reported in II(2014) CPJ 109 (NC) between Beverly Park Maintenance Services Ltd. V/s Kashmir Fab Styles Pvt. Ltd. – once the parties participated in the arbitration proceedings for the same relief and present proceedings for the same relief could not have been initiated again before the Hon’ble State Commission and such complaint is not maintainable.
In view of the above decision, we are of the opinion that the application filed by the opposite party No.1 is justifiable. Accordingly, the point No.1 is answered in the affirmative.
Point No.2:- In view of the finding recorded on point No.1, we pass the following order:-
ORDER
- The I.A.No.I filed by opposite party No.1 is hereby allowed. In the result complaint is dismissed as not maintainable.
