IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /69/2014.
Date of Filing: 09.06.2014. Date of Final Order: 06.09.2016.
Complainant: Rabban Sk. S/O Late Rustum Sk. Vill. Chamakpur, P.O. Sadar Nasipur,
P.S. Lalgola, Dist. Murshidabad.
-Vs-
Opposite Party: 1. Ujjawal Sk. S/O Abdul Rouf Mistry, Prop. Milon Automobile, Keshabnagar,
Jalangi Road, (Near Shan Shine Hotel), P.O.& P.s. Berhampore, Dist. Murshidabad. 2. Manager, Mahindra & Mahindra Financial Service Ltd, 2nd floor, Sadhana House (Behind Mahindra Tower), 570 P.B. Marg, Worli, Mumbai-400018, Maharasthra.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Pranati Ali ……….………………………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for return of the tractor, if not possible to refund Rs.2.5 lacs along with interest @12.5% and to refund Rs.2.06 lacs and compensation of Rs.1 lac.
The complaint’s case, in brief, is that the complainant purchased a Tractor Shaktiman-3, model No. 535 HP-35, Engine No. 53511303494 on 12.9.11 from OP No.1 show-room after initial payment of Rs.2.5 lac for the price of the Tractor fixed at Rs.5.05 lac and the rest amount to be paid with the financial assistance of OP No. 2 to be paid by monthly installment of Rs.13, 250/-. The complainant paid eight installments @ Rs.13250/- totaling to Rs.1.06 lacs . On 26.2.14 without giving any notice the OP No.2 took away the tractor along with trolley which was purchased separately by the complainant for Rs.1 lac. The Op no.2 has no right over that trolley. The Op Nos. 1&2 have not returned anything to the complainant. Hence, the instant complaint case.
The written version filed by the OP No.1 , in brief, is that the complainant purchased the tractor for commercial purpose and for that he cannot be treated as consumer under C.P. Act. The payment of rest amount was paid by the complainant through financial assistance of Op No.2 as per agreement. This OP No.1 delivered the tractor on 12.9.2011 as per agreement in between the complainant and Op No.2. The Op No.1 is not involved in that agreement and he has no liability in this case and for that this case is liable to be dismissed. Hence, the instant written version.
The written version filed by the OP No.2, in brief, is that that the complainant executed an agreement on 13.9.11 with Op No.2 taking loan of Rs.3.30 lacs for purchasing the tractor registration No. WB 58B2324 to be repaid Rs.4, 43,850/- by 35 installments starting from 13.9.11 to 15.7.14. Out of which the complainant only paid six installments last on 15.7.14. The complainant is a defaulter for 29 installments of Rs.3, 65,850/- and liable for late payment of Rs.1, 72,883/- as per terms of agreement. As clause 15 of the agreement the complainant has agreed to refer the dispute to the Arbitrator, Accordingly, the Arbitration proceeding No. 244/12 was filed on 28.12.12 and award was passed on 25.10.13 after serving notice upon the complainant but not present. The NC has categorically stated that the For a cannot entertain a complaint after an arbitration award has already been passed [2007(1) CPJ-35NC]. There is no deficiency in service on the part of the OP and for that the complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of all the parties the following points have been raised for the disposal of the case.
Points for Consideration
- Whether the present complaint is maintainable in its present form and in Law?
- Whether the petition is barred by the principles of estoppels, waiver and acquiescence?
- Whether the petitioner is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with reasons.
Point Nos. 1 to 4.
All the points are taken up for the sake of convenience.
The instant complaint is praying for refund of Rs.2.5 lacs along with interest and Rs.2.06 lac (Rs.1 lac for price of Trolley + Rs.1.06 lacs 8 installment @ Rs.13250/- already paid) along with interest plus compensation of Rs.01 lac.
The complainant’s case ,in brief, is that the complainant purchased a Tractor at a price of Rs.5.05 lac after making initial payment of Rs.2.5 lac from Op No.1 taking loan for the rest amount from OP No.2 with an agreement to make payment by installment of Rs.13250/- . After payment of eight installments the Op No.2 took away the said Tractor along with a trolley which was purchased separately for Rs.01 lacs, the OP No.2 has no right on that trolley. The OP Nos.1 and 2 have not returned the tractor along with trolley and then the complainant has filed the instant complaint.
In this case Op No.1 is the dealer of Tractor from whom the complainant purchased the tractor with the financial assistance of OP No.2 as per loan agreement and the OPNo.1’s case is that he is not involved in that loan agreement and he is not liable in this case and for that the case be dismissed against him.
On the other hand the OP No.2 is Financier’s case is that this case is not maintainable before this Forum as there is an award of arbitration proceeding as per Arbitration Clause in the loan agreement. The complainant is a defaulter of 29 installments for Rs.365850/- and Rs. 1,72,883/- for late payment as per agreement where only six installments have been paid by the complainant. There is no deficiency in service on the part of OP No.2 and for that the complaint is liable to be dismissed.
To prove the case the complainant has adduced his evidence on affidavit and has adduced the relevant documents in support of his case.
The Ld. Lawyer for the OP No.2 Financier has advanced argument referring the Arbitration Clause in the loan agreement in between the complainant and Op No.2 for the instant purchase of Tractor that they have got an ex parte award of Arbitrator at Mumbai inspite of service of notice upon the complainant.
The OP has filed Xerox copy of judgment of Arbitration Proceeding awarded by the Arbitrator ex parte on 25.10.2013 at Mumbai and has also filed the Loan agreement executed by both parties at Berhampore.
In the written version the Op No.2 has referred a reported decision in 2007(1)CPJ-34(NC) to the effect that the For a cannot entertain a complaint after an arbitration award has already been passed.
But, the said reported decision has not been referred by the Ld. lawyer for the OP No.2 during hearing argument, even the same has not been filed before this Forum.
The Ld. Lawyer for the complaint has advanced argument that Arbitrator is the person of the same group of OP No.2 and also argued that in the judgment there is no whisper who appointed the Arbitrator.
Regarding the disputed question whether the award of Arbitrator proceeding is binding or not the ld. lawyer for the complainant has advanced argument that the complainant being consumer under OPNo.1&2 irrespective of the award of the Arbitrator the case is maintainable before this Forum as relief prayed.
Relating to the further question whether the said Arbitration Clause at Mumbai is tenable or not the ld. lawyer for the complainant has advanced argument that agreement cannot override statute.
In Arbitration preceding the complainant is OP No.2 of this case.
He has further argued that according to Stature the jurisdiction is where the OP resides and agreement was executed.
In reply the Ld. Lawyer for the Op no.2 has advanced argument that bilateral agreement cannot be denied by the complainant subsequently.
On the other hand the Ld. Lawyer for the complainant has replied that Arbitration Proceeding is guided by Clause.
In this regard relying upon the latest reported decision of the Hon’ble Supreme Court in (2015) 1-WBLR(SC) 385 and also relying upon the provision u/s 3, C.P. Act, we can safely conclude that Arbitration Clause as well as Arbitration award cannot oust the jurisdiction of this Forum.
In the reported decision of Hon’ble Supreme Court, in Rosedale Developers Private Limited Vs. Aghore Bhattacharyya & Others (2015) 1 WBLR (SC) 385 observed that the National Commission did not commit any error by holding that the remedy of Arbitration Available to the complainant does not bar the jurisdiction of the Consumer Forum and the Consumer Forums are not under an obligation to refer the matter to the Arbitral Tribunal and prayed to dismiss the petition dated 14.12.2015 filed by the OP Nos. 1 & 3.
The Consumer Protection Act, 1986 has been enacted by the Parliament Specifically for consumers within the special object to promote some basic rights of consumers, namely the right to safety, to redressal of grievances etc.
The Consumer Forum established under the C.P Act does not exercise jurisdiction upon each and every matter, rather the Jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the Consumer element is involved.
As per Sec.3 of the C.P. Act, the provisions of the Act shall in addition to and not in derogation to any other provisions of any other law for the time being in force.
Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context to give meaning to additional/extended
Jurisdiction, particularly when Sec. 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar.
Considering the above discussions as a whole we have no other alternative but to conclude that we this Forum has jurisdiction to entertain the instant complaint instead of bear by Arbitration Clause in the agreement and as such this point is disposed of in favour of the complainant.
Now, the main remaining point is to be decided whether the complainant is entitled to get relief as prayed for.
Admittedly, the impugned tractor was taken in custody by OP No.2 for default of payment of installments of the loan amount after expiry of the said period as per agreement.
In this case, the complainant has prayed for refund of rs.2.5 lacs initially paid to OP No.1 and Rs.1.06 lacs towards payment of eight installments and Rs.1 lac the cost of Trolley which was also taken by OP No.2 along with interest and Rs.01 lac towards harassment and mental agony.
On the other hand the OP No.2 has denied the allegation as to payment of eight installments, he has admitted that complainant has paid only six installments amounting to Rs.78,000/- out of 35 installments and the OP No.2 has claimed against the complainant for Rs.3,52,186/- and there is no deficiency in service and the case is barred being awarded in the Arbitration proceedings at Mumbai as per Arbitration Clause in the loan agreement.
To prove the case the complainant has adduced his evidence on affidavit and has filed only two documents in support of his case.
(i) the delivery challan in respect of delivery of one tractor mentioning its engine and chasis number and the letter dt. 20.12.2012 of OP No.2 to the complainant for recall of Loan agreement claiming Rs.3, 52,186/-.
The complainant has not filed any document as to the payment of eight installments where admittedly, he has paid only six installments amounting to Rs.78, 000/-.
He has not filed any document to justify his claim as to the price of Trolley for the use with the impugned Tractor and any document to show that he purchased the impugned trolley separately. He has not mentioned anywhere from whom he purchased the impugned trolley whether from opNo.1 or anybody else.
Also, there is no iota of evidence to establish that at the time of taking away the tractor by OP No.2, the impugned trolley was attached with the tractor.
Further, the complaint has claimed refund of Rs.2.5 lac which was paid initially to Op No.1 for purchase of the said Tractor taking loan from OP No.2.
Admittedly, the tractor was taken away by OP No.2 from the complainant for default in payment of loan amount.
For that there is no claim against OP No.1 the dealer of the Tractor.
Also, it is clear that in this case there is no deficiency in service on the part of Op No.1.
Admittedly, the loan agreement in between the complainant and OpNo.2 was executed on 13.9.2011 and the same was recalled on 20.12.2012 claiming net payable amount by the complainant is Rs. 352186/- which has been filed by the complainant.
This complaint has been filed on 9.6.14.
The loan agreement was recalled on 20.12.2012.
Ex parte Arbitration award was passed on 25.10.13.
Admittedly, six installments of Rs.78, 000/- was paid by the complainant to OP No.2.
It is also admitted that the impugned tractor was taken away by OP No.2 for default.
The dispute is that without notice the tractor was taken away which is illegal.
The date of actual taken away of the Tractor is not before this Forum.
Be that as it may, the complainant has filed the recall of Loan Agreement letter dt. 20.12.2012 received from Op No.2 claiming net amount payable by the complainant is Rs.3, 52,186/- which has not been challenged by the complaint by adducing evidence. .
Thus, from this day, the date of receiving the said recall letter the fact of termination of contract is well within the knowledge of the complainant and since then the complainant ought to take steps for repayment of loan.
Further, it is not clear before this Forum whether the OP No.2 has sold the said tractor, no such document or fact showing amount of sale proceeds realized has come before this Forum.
In this case the Ld. Lawyer for the complainant has referred a reported decision in 2013(1) ICC-187(Karnataka High Court) relating to territorial jurisdiction u/s 20 CPL in a case of Hire Purchase agreement and the case was for return of plaint wherein it has been held that suit mandatory injunction to direct the hirer to restore the possession of the vehicle to the hire purchaser could be filed at Bangalore irrespective of the fact of conferring of jurisdiction on some other court in the agreement between the parties.
The main case referred above was for return of plaint in a case of Hire Purchase Agreement.
The fact of the case of the aforesaid reported decision is that the plaintiff purchased a Bus and was being plied as a Tourist Bus and availed loan of Rs.5 lacs hypothecating the Bus and agreeing to pay a monthly installment of Rs.32, 000/- where defaulted for August & September, 2009 amounting to Rs.64, 000/- and the plaintiff requested for extension of time. Though the defendant had agreed to grant such time, the defendant had unilaterally proceeded to forcibly take custody of the bus when it was parked on the Tank Bund Road in Bangalore without prior notice to the plaintiff. The plaintiff immediately approached the defendant and requested that there be reconsideration of this act and to return the vehicle. The defendant refused to release the vehicle, even after receiving the amounts due for the months of August to October, 2009. On the other hand, the defendant demanded repayment of the entire loan amount outstanding, in order to release the vehicle. It is in this background the appellant seeks before the Trial Court for mandatory injunction restraining the defendant from alienating the said vehicle and ultimately the question of territorial jurisdiction of the court was raised and accordingly held as above as discussed.
The case record referred above by the Ld. Lawyer for the complainant has simply referred the decision as discussed during the course of hearing the argument before this Forum.
From the aforesaid reported decision as discussed above we find that the case referred is not relating to the provision under Consumer Protection Act but the question involved is regarding the restoration of vehicle after payment of installments and the same has been duly considered.
In that case we find that similar question of taking away the vehicle without notice but in this case there is no such case as revealed from the aforesaid decision, as to approach immediate after taking away the tractor in the custody of the OP No.2 for repayment of installment due.
Considering the above facts and circumstances and also considering the principle of aforesaid reported decision as well as the fact that the tractor of the complainant was taken away by the OP No.2 without notice we are of view that the complainant is entitled to get back his tractor from OP No.2 after satisfying the dues to OP No 2.
Admittedly, the complainant being defaulter is not entitled to get any compensation.
On the basis of the above discussions we find that all the points are disposed of in favour of the complainant in part and as such the complaint is allowed in part on contest against the OP no.2 and be dismissed against the OP No.1.
Hence,
Ordered
that the Consumer Complaint No. 69/2014 be and the same is allowed in part on contest against the OP No.2 and is dismissed against OP No.1. .
The complainant is entitled to get back his tractor from OP No.2 after satisfying the dues to him.
The OP No.2 is directed to return the tractor to the complainant within seven days after getting payment of dues from the complainant towards loan , in default, the OP No.2 is to pay Rs.50/- per day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member President
