Date of Filing : 30/05/2016                                               Date of Order : 08/11/2017

Order No.21, dated 08/11/2017

Sri Asish Kumar Senapati, President

Today is fixed for order in respect of the petitions dated 21.09.16 and 18.08.17.

The Ld. Agents of both parties are present.

The petition dated 18.08.17 is taken up first for disposal.

The gist of the petition dated 18.08.17 is as follows:

That the Complainant filed the present case against the Ops in connection with his Vehicle being No.WB-63/9465 which was purchased by receiving financial loan from the OP No.3, Tata Motors Finance Ltd. on the strength of Hypothecation Loan Agreement dated 31.08.14..  As per terms and conditions of the Loan-cum-Hypothecation-cum-Guarantee Agreement, all the disputes, differences, claims arising out of the said Agreement are the matters of the arbitration under Arbitration and Conciliation Act, 1996. 

That the OP No.3 has already referred the dispute before the sole Arbitrator Mr. N.C. Joseph as per clause 23 of the Agreement being Arbitration Case No. TMFL/19268 of 2016 in respect of Agreement No.5001637362 dated 31.08.14 and the Complainant did not appear before the Arbitrator in spite of service of notice upon him, resulting final award passed by the Arbitrator on 07.02.17.  The OP No.3 has prayed for dismissal of the complaint case on the ground that the Arbitrator has already adjudicated the dispute vide his order dated 07.11.16.  The Complainant has not filed any written objection against the petition dated 18.08.17.

The Ld. Agent for the OP No.3 submits that OP No.3 filed an application on 25.07.16 U/S 8 of the Arbitration and Conciliation Act, 1996 praying for dismissal of the complaint with a direction upon the parties to refer the dispute to an Arbitrator.  He submits that this Forum passed the order dated 28.12.16 by observing that “ It is crystal clear that this Forum has no other alternative but to refer the matter to the Arbitrator in the Arbitration and Conciliation Act, 1996 for proper adjudication of the dispute as per the terms and conditions of the Loan-cum-Hypothecation-cum-Guarantor Agreement executed between the parties on 30.08.14. Though it has been clearly mentioned in Clause 23 and 24 of the Agreement that all disputes shall be settled by Arbitrator but no such document has been filed by either of the parties to show that parties agitated their grievances before Arbitrator.  So, in the situation, the parties are at liberty to file the documents in the matter of arbitration as mentioned above.  The order in respect of the above said petition of OP No.3 be  kept in abeyance till the filing of documents as above.  Let the said petition be kept with this record at this stage. Fix 14.03.17 for filing documents as above.”

He argues that the Ld. Arbitrator has already passed an award and the OP No.3 has filed the copy of award on 07.04.17.  It is urged that the dispute has already been adjudicated by the Arbitrator vide his award dated 07.02.17 and this  Forum has no jurisdiction to entertain the complaint case.  He prays for dismissal of the complaint case with cost.  He draws our attention to a number of decisions reported in (2016) 1 WBLR (CPSC) 661, (2015) 1 WBLR Cal.518, II(2009)CPJ368(NC)19964 SCC 704, 1(2007) CPJ 34 (NC), III (1994) CPJ 130 (NC), 1 (2006) CPJ 610, III(2007) CPJ 425 (NC), II (2008) CPJ 513 and State Consumer Disputes Redressal Commission, Pandri, Raipur (C.G) dated 24.05.17 in Vinesh Kumar Sharma –Vs- Manager, Chola Mandalam Finance.  He submits that the complaint case is not maintainable as the dispute has already been adjudicated by the Arbitrator.

The Ld. Agent for the OP No.2 has also supported the contention of the OP No.3.

In reply, the Ld. Agent for the Complainant submits that the complainant has filed this case against the OPs alleging manufacturing defect of his vehicle.  It is argued that this Forum has ample jurisdiction to entertain the complaint case as the complaint case was initiated when there was no arbitration case.  He submits that the case may be otherwise if  either of the parties referred  the dispute to the Arbitrator before institution of this case.  He draws our attention to a decision reported in 2016(4) CPR 514 (NC).

We have gone through the complaint petition, order of this Forum passed on 28.12.16, the petition dated 18.08.17 and the documents filed by both parties.  We have also gone through the decisions referred by the Ld. Agents of both parties.  It appears from the record that OP No.3 filed an application dated 25.07.16 praying for referring the matter to the Arbitrator in accordance with the Arbitration and Conciliation Act, 1996 as per clause 23 and 24 of the agreement.  This Forum passed an order dated 28.12.16 by giving liberty to the parties to file the documents in the matter of arbitration.  It appears from the copy of arbitration award filed by the OP No.3 on 17.04.17 that the matter was referred by the O.P.No. 3  to the Arbitrator on 27.10.16 and an award was passed on 07.02.17.  It also appears from the said award that the Complainant did not turn up in spite of service of notice upon him.  It is crystal clear from the order passed by this Forum dated 26.12.16 that this Forum allowed the parties to refer the matter to the Arbitrator in terms of clause 23 of the agreement. Accordingly, the OP No.3 referred the dispute to the Arbitrator and an award was passed on 07.02.17.  With due regard to the decisions referred by the Ld. Agents of both parties, we have no hesitation to hold that the dispute between the parties has already been adjudicated by the Arbitrator vide his order dated 07.02.17 and so we find no reason to entertain the complaint as both parties agreed to settle their dispute in terms of clause 23 of the agreement dated 31.08.14.

Hence, the petition filed by the OP No.3 is allowed on contest but without any order  as to cost.

As the Complaint Case merits dismissal  due to adjudication of the dispute in terms of agreement between the parties dated 31.08.14, we find no reason to pass any order in respect of the petition filed by OP No.2 dated 21.09.16 praying for appointment of expert.

The petition is thus disposed off.

The complaint case be and the same is hereby dismissed without cost as the dispute between the parties has been adjudicated by the Arbitrator vide his order dated 07.02.17 in terms of clause 23 of the agreement between the parties dated 31.08.14.

Let copy of order be supplied / sent to the parties free of cost.