Orissa

Jagatsinghapur

CC/225/2021

Saroj Kumar Swain - Complainant(s)

Versus

The Manager Indusind Bank Ltd - Opp.Party(s)

Mr.C.Mishra

02 Aug 2022

ORDER

                                                                                       JUDGMENT

 

            Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;

            “Direct the opposite parties not to repossess the vehicle bearing No.OD-05-BA-9656”.

            The brief fact of the case is that the complainant was unemployed and availed a loan from opposite parties amounting to Rs.38,44,185/- while depositing margin money Rs.5,48,260/- to purchase a Tata LPT 4225 BSIV10X2 Truck bearing Regd. No.OD-05-BA-9656 for earning his livelihood by carrying on goods transporting business. As per agreement bearing customer code CU8625933 and contract No.OCB01194D the loan amounting to Rs.38,44,185/- along with interest charges amounting to Rs.10,60,995/- and one year insurance charges of Rs.58,047/- is scheduled to be paid in 58 EMIs starting from 21.7.2021 and terminating on 21.4.2026 @ Rs.84,570/-. For 2^nd to 58^th installment and the 1^st installment is scheduled to be paid as Rs.84,690/- and till date the complainant has paid three installments out of five installments. The complainant availed the aforesaid loan during outbreak of Covid-19 2^nd phase and he paid Rs.5,48,260/- as margin money to purchase his vehicle, the installments started on 21.7.2021 and till the end of October, 2021 the market situation for transporting goods was dull enough still the complainant managed to pay three EMIs out of five installments till date after paying margin money of Rs.5,48,260/- and for non plying vehicle on road due to outbreak of covid-19 only two EMIs are yet to be paid to opposite parties. The complainant has invested huge amount of money and has defaulted in paying two EMIs. The opposite parties are repeatedly threatening to repossess the vehicle of the complainant and sale the same elsewhere causing loss and suffering to the complainant. The tenure of repayment is extended up to 21.4.2026.

The opposite parties have filed their written version stating as under;

It is well settled that the special law overrides the general law. The Arbitration Act is subsequent enactment to the Consumer Act and hence would have overriding effect in so far as Sec.8 of the Arbitration and Conciliation Act is concerned and therefore it would ouster the jurisdiction of Consumer Commission when there is valid arbitration agreement for resolving disputes between the parties. In the instant case as per the agreement between the both parties the clause 23.0 provides for arbitration and any party aggrieved with action of other party may invoke said clause. The complaint is not maintainable as the loan agreement contains the clause of Arbitration and Territorial Jurisdiction Clause 23 of the agreement is as follows: “23.1- All disputes, differences and/or claim arising out of or touching upon this agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1986, or any statutory amendments thereof and shall be referred to the sole arbitration of an arbitrator nominated by the lender. The award given by such an arbitrator shall be final and binding on all the parties to this agreement. 23.3- The venue of Arbitration proceedings shall be at Chennai and the language shall be in English.” It is stated by the counsel for the opposite parties that the complainant has failed to pay the EMI regularly. As on date complainant has outstanding Rs.4,15,095/-.

            In order to resolve the dispute and end the litigation we are not entering into the legal points raised and we therefore direct that complainant shall pay 30% of pending arrear EMIs as on the date of payment within three weeks from the date of passing the order and rest of the EMIs is to be paid within a year and the complainant shall pay the regular EMI. With the aforesaid observation and direction the consumer complaint is disposed of. No cost.   

 

            Pronounced in the open Commission on this 2^nd August, 2022.