Order-18.
Date-01/08/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that he is a driver by profession and he purchased a vehicle for self-employment being registration no.WB 15A 5203 financed by the OP in the year 2007. He took a loan of Rs.2,20,000/- from the OPs and made down payment of Rs.70,000/- for insurance coverage and he also deposited 10 blank post dated cheques with the OPs. The complainant paid an amount of Rs.1,51,110/- in 35 monthly instanlments upto 19-11-2009. In the last week of November, 2009 the OPs took possession of the said vehicle illegally and forcibly without any court’s order. Thereafter, the OPs sold the same to the third party. The complainant protested to it but to no good. The OPs thereafter, started to disturb the complainant in various ways and the complainant requested the OPs so many times not to do so but to no good. The complainant is unemployed at present. The complainant issued legal notice dated 24-11-2015. But there was no response from the side of the OPs. The complainant has alleged that he is entitled to get back an amount of Rs.2,50,000/-. The complainant has also alleged deficiency of service against the OPs.
The OPs have contested the case by filing written version contending, inter alia, that the complaint is vexatious, harassive and mis-conceived. It is stated that the OPs and complainant executed a loan agreement on 05-05-2007 and as per the loan agreement complainant is liable to pay monthly instalment of Rs.6,360/- to the OPs in 45 instalments. The first instalment is payable on 01-05-2007 and the last payment was to be made on 01-03-2011 as per the loan agreement. It is denied that the complainant made payment of 35 monthly instalments. It is alleged that the complainant utilized the said vehicle for 3 years but did not make regular payments to the OPs and the OPs as per the terms and conditions in the said loan agreement and after giving prior 4 months time for clearing the dues sold the vehicle to a third party for a sum of Rs.20,000/-. It is denied that the complainant faced damage of huge amount of money or suffered mental agony. It is also alleged that the complainant came before this Forum after receiving the certified copy of the award passed by the Ld. Arbitrator. It is alleged that the complainant came to this Forum after seven years of the seizure of the vehicle. It is alleged that the complainant did not bother to make payment of genuine dues of the OPs and defaulted in making monthly payment. It is alleged that the OP has come to the Forum intentionally to harass the OPs and OPs have prayed for dismissal of the case.
Point for Decision
- Whether the case is maintainable in its present form and prayer?
- Whether there was any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have travelled through the documents on record filed from the respective parties including the Arbitral Award passed by Shri Saurav Bandopadhyay, Ld. Arbitrator. It appears that in the year 2007 complainant approached the OP – Finance Company for financial assistance to purchase TATA ace. OP granted financial assistance to the complainant for sum of Rs.2,20,000/- to be refunded at the rate of regularly monthly instalment of Rs.6,360/-. It also appears that the complainant defaulted in respect of payment of instalments as per the terms and conditions contained in the loan agreement. We also find that the vehicle was re-possessed by the OPs as per terms and conditions contained in article 10 and 11 of the said agreement in the last week of November, 2009. We find that the complainant slept over the matter and did not proceed according to the law of the soil. Complainant has filed this case long after on 20-01-2016 i.e. after 7 years from the cause of action. It appears that the complainant has come before this Forum almost expiry of 7 years from the time of seizing the vehicle by the OPs. There is no explanation why the complainant has come before this Forum after such a long lapse of time. We also find that an Arbitral Award is also passed against the complainant after arbitration proceeding under Arbitration & Conciliation Act, 1996 as per the clause of the agreement. It appears that the OPs initiated the arbitration proceeding as per the terms and conditions contained in the Hire Purchase Agreement. So, it appears that the complainant came before this Forum after the Award passed by the Ld. Arbitrator Mr. Saurav Bandopadhyay, Advocate/Arbitrator to make the payments of the OP’s dues almost expiry of 7 years from the time of seizing the vehicle by the OPs.
So, the fact remains Arbitrator has been appointed in this case under the provision laid down in The Arbitration and Conciliation Act, 1996 and the Arbitral Award has also been passed against the complainant. At this juncture we think that the remedy lies elsewhere and not before this Forum. The remedy of the complainant lies u/s.34 or under appropriate provision of the Arbitration and Conciliation Act, 1996 before Appropriate Authority/Court.
As a logical corollary of the discussion as made in earlier paragraphs and having regard to the materials on record, we think that the instant case is not maintainable in its present form and prayer before this Forum. We are also constrained to hold that the case is hopelessly barred on the point of limitation also.
Hence,
Ordered
That the instant case be and the same is dismissed on contest. No order as to cost.
