I.A. No.100/15  in C.C. No. 109/2015

Between:

1. The Manager,

Shriram Transport Finance Co.Ltd.,

Palayam, Thiruvananthapuram is

Rep. by the P/A Holder Balachandran. B

2. The Manager,

Shriram Transport Co.Ltd.,

College Junction, Pathanamthitta  is

Rep. by the P/A Holder Balachandran. B

                                                                …  Petitioners/Opposite party 3 & 4

And:

1. Ayoob Khan, S/o Ibrahim Kutty,

No.269 Manzil, Moonnukallu,

Seethathodu Village,

Ranni Taluk,

Pathanamthitta Dist.

2. MD, Vinay Finance Corporation,

82, Adiyappa Naykkan Street,

Ground Floor, Sowkarpettu, Chennai.

3. The Manager, Vinay Finance Corporatiion,

Branch Office, Near RTO, Pathanamthitta.     

             …  Respondent/Complainant.

FINAL ORDER

Sri. P. Satheesh Chandran Nair (President):

                        The 3^rd and 4^th opposite party in this case filed this maintainability petition.

            2. The contentions of the petitioners are as follows: According to the petitioners/opposite party 2 and 3 (herein after called petitioners), they are a public limited company having its registered office at Mumbai.  This company is registered with the Reserve Bank of India as a non-financing company.  The petitioner company is engaged in the business of availing loans on Hypothecation and guarantee basis.  He again contented that, the complainant had entered into hypothecation agreement with the petitioners and the respondent/complainant (herein after called respondent) has defaulted the installment amounts and the matter was referred to arbitration.  The said Arbitrator has passed the final award and the 3^rd and 4^th opposite party has been filed an execution petition before the District Court as EP No. 26/2015  for realizing the award amount from the respondent.  The petitioners again contented that, if an execution petition is filed for realization of award amount, the jurisdiction of this Forum is ousted and the complainant has approached this Forum with unclean hands.  Hence this Forum has dismissed the petition of the complainant.    The respondent filed an Argument note against this petition.  According to him, the complainant has not entered into hypothecation agreement with 3^rd and 4^th opposite parties in the case.  The hypothecation agreement executed only with the 1^st opposite party and the 2^nd opposite party was the Manager of 1^st opposite party.  The complainant’s prayer in this case is to direct the first opposite party to furnish NOC to the complainant or to direct the RT authorities to cancel the hypothecation mentioned in the Registration certificate.  The respondent again submitted that, since there is no hypothecation agreement with the 3^rd opposite party, he has no authority to file any execution petition against the respondent.  According to him, there is no due towards the 1^st opposite party and even the 3^rd opposite party did not send any notice or arbitration notice to the respondent before filing the execution petition.  The case of the respondent is not against the 3^rd opposite party.  As the 3^rd and 4^th opposite parties are necessary parties in this case they are included in the party array.  The respondent requested to accept the contention and dismiss the petition with cost.

                     3. When we peruse the petition and contention raised by the respondent and the available records before us we framed following issue for consideration.

Whether this petition is maintainable before the Forum?

    4.  In order to substantiate the case of the petitioners they are mainly depending on the fact that there was an arbitration case and the said arbitration case and the award is now under an execution petition proceeding.  It is stated that the said execution petition is numbered by the Hon’ble District Court as EP No. 26/2015 and the proceedings is pending before the said District Court.  The petitioners in this case strongly contented that, if an execution petition is pending before a competent court with regard to the same issue the jurisdiction of this Forum is to be ousted  In order to convince us  they placed a decision reported in CPJ 34/2007 NC by National Consumer Disputes Redressal Commission in Instalment Supply Ltd. Vs Kangra Ex-servicemen Transport dated 5^th October 2006 .  The main finding of the Hon’ble “National Commission” that “in view of the decision of the Arbitrator which is binding on parties,  the Fora below should not have passed an order by overlooking the award”.   

                     5. In the light of the above order of Hon’ble National Consumer Disputes Redressal Commission, it is clear that a decision of the arbitration court is binding on both the parties.  The Hon’ble National Commission definitely find that, a Consumer Forum should not have passed an order by overlooking an award.  It is also seen that, the matter of arbitration award is mentioned in the complaint and it is submitted that, E.P proceeding is pending against the complainant.  As per the finding of Hon’ble National Commission in the above stated decision, in this kind of matters bar of resjudicata is also affecting as far as the original complainant in this case is concerned.  Hence point No.1 is found against the complainant.

      6. In the result, we find that the complaint is not maintainable before this Forum.  Hence this I.A is allowed and the case is dismissed.  No order of cost.

                          Declared in the Open Forum on this the 29^th day of January, 2016.    

                                                                                                               (Sd/-)

P. Satheesh Chandran Nair,                                                                                                                                                                                                                                                (President)

Smt. K.P. Padmasree (member –I)             :    (Sd/-)      

Smt. Sheela Jacob (Member – II)               :    (Sd/-)      

Appendix – Nil.

                                                                                                      (By Order)

Copy to:- (1) The Manager, Shriram Transport Finance Co.Ltd.,

            4^th Floor, Capital Centre, M.G Road, Palayam,         

            Thiruvananthapuram – 395 001.

2.  The Manager,  Shriram Transport Finance Co.Ltd.

            Near College Junction, Pathanamthitta                                         

3. Ayoob Khan, No.269 Manzil, Moonukallu,

            Seethathodu Village, Ranni Taluk,

                       Pathanamthitta Dist.

4.  MD, Vinay Finance Corporation,

            82, Adiyappa Naykkan Street,

              Ground Floor, Sowkarpettu, Chennai.

5. The Manager, Vinay Finance Corporatiion,

            Branch Office, Near RTO, Pathanamthitta.     

6. The Stock File.