FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Briefly stated the facts of the case of the complainants are as under:-
That the complainants are the owners of a vehicle bearing registration No. WB-65A-9280. The complainants purchased the said vehicle with the help of financial assistance by obtaining loan from the OP Kotak Mahindra Bank Ltd. to the tune of Rs. 5,76,950/- and the installments of the loan are to be repaid in 35 monthly installments. The installments are of Rs. 21,580/- each. The complainants deposited 35 cheques coupled with two blank cheques to the OP towards EMIs. On account of financial crisis, 16 cheques were not encashed. OP seized the subject vehicle on 09.12.2014 with the police assistance of Kasba PS without given any opportunity to liquidate the outstanding EMIs in terms of order passed in Misc. Case No. 2083 of 2014 of 2nd Bench, City Civil Court, Calcutta. Complainants received legal notices dated 22.08.2016 & 23.08.2017 U/s 138 (A) NI Act from the OP though no cheque was issued to the OP regarding settlement of loan amount. Notice was replied with a request to furnish actual outstanding loan amount. OP replied the notice and also claim outstanding dues of Rs. 4,25,373.81. Complainants have also paid Rs. 4,10,000/- to the OP out of loan amount. OP sold the subject vehicle at Rs. 1,85,000/-. Thus, there is no outstanding dues. On the aforesaid allegations, complainants sought directions to the OP to adjust the loan amount and also to pay compensation to the tune of Rs. 1,00,000/-. Litigation expenses is also demanded.
OP has filed their WV and also denied the allegations levelled by the complainants in the complaint and averred that the OP is a financer and according to Loan Cum Guarantee Agreement. OP becomes the owner of the subject vehicle and purchasers are simply a bailee of the vehicle in terms of the vehicle. In terms of the loan agreement, the matter was referred to the Arbitrator and an award was published on 09.09.2014. Complainants never challenged the Award. As such, the said award reached finality. Complainants did not comply the award passed by the Arbitrator and filed complaint petition after passing the award, therefore, District Commission has no jurisdiction to decide the case.
Both parties have filed their evidence by way of affidavit in order to prove their averments on record.
We have perused the material available on record and heard the counsel for the parties.
On going through the photocopies of Loan cum Guarantee Agreement dated 19.07.2012 and order dated 05.06.2014 and 11.11.2014 of the 2nd Bench City Civil Court, Calcutta passed in Miscellaneous No. 2083/2014 there is no dispute that OP Bank has provided loan to the tune of Rs. 5,76,950/- to the complainants for purchasing the subject vehicle bearing registration No. WB-65A-9280 and the installments of the loan are to be repaid in 35 monthly installments. The installment amount is Rs. 21,580/- each. It is also true that complainants failed to repay the EMIs regularly and the OP took possession of the subject vehicle with the help of police assistance as per order of the Hon’ble Court passed in Misc. Case No. 2083 of 2014. The vehicle was sold on auction as the complainants failed to comply the terms of the loan agreement. The matter was referred to the Arbitrator in terms of arbitration clause mentioned in the loan agreement and despite notice complainants did not appear and ex parte award was passed by the Arbitrator in the year 2014, whereas the complainants have filed the complaint before the Commission on 11.07.2017 i.e. after passing of the ex parte award by the Arbitrator.
If award is passed by the Arbitrator then only remedy available to the an aggrieved party is to file an application u/s 34 of the Arbitration & Reconciliation Act,1996 for setting aside the award. Looking to the record, it appears that the complainants did not opt to file any application U/s 34 of the Arbitration & Reconciliation Act, 1996 before competent District Judge and instead of filing application U/s 34 of the Arbitration & Reconciliation Act, 1996, the complainants continued in persecuting the instant consumer case.
Looking to the facts and circumstances of the case, we are of the view that once the matter is referred to the Arbitrator and award is passed by the Arbitrator, then the complaint before the District Commission under Consumer Protection Act is not maintainable the OP has obtained the possession of the subject vehicle illegally or by using criminal force or by violence. As per loan agreement and award of Arbitrator the complainants are not entitled to get any relief. It appears that the OP takes possession of the vehicle with police assistance. In these circumstances, the OP did not commit any deficiency in service by possessing the vehicle from the complainants and sold it an auction.
In terms of the aforesaid discussion, we find no merit of the case and the complaint stands dismissed on contest. No order as to costs.
A copy of this judgment be provided to the parties free of cost as mandated by the Consumer Protection Act. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
File be consigned to Record Room along with a copy of this judgment.
The case could not be decided within the stipulated period due to heavy pendency of court cases and also due to pandemic of Covid-19.
