BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 191 OF 2013 AGAINST C.C.NO.25 OF 2012 DISTRICT CONSUMER FORUM ADILABAD
Between
Dahale Prahalad S/o late Gangadhar
Aged 60 years, Occ: Ex-Serviceman
R/o Village Mannur, Mdl: Gudihatnoor
Dist. Adilabad
Appellant/complainant
A N D
- M/s Adarsha Auto Mobiles
Mahindra Tractor Show Room
Nirmal, Mandal Nirmal, Dist Adilabad - M/s Mahindra Finance
Mahindra & Mahindra Financial Services Ltd.,
D.No.9-431, Beside Govt. RIMS Hospital
Adilabad - Mahindra & Mahindra Financial Services Ltd.,
Having its Regd.Off: at Gateway Bldg.,
Apollo Bunder, Mumbai - Sri Ameeta Chedda, Advocate Arbitrator
for Mahindra & Mahindra Financial Services Ltd.,
Co 207, Parasampuria Chambers, Anand Road
Malad (W) Mumbai-64
Respondents/opposite parties
Counsel for the Appellant M/s M.Hari Babu
Counsel for the Respondents Served(R1&R4)
M/s Valluri Mohan Srinivas (R2&3)
QUORUM: SRI THOTA ASHOK KUMAR HON’BLE MEMBER
&
SRI, S.BHUJANGA RAO, HON’BLE MEMBER
TUESDAY THE NINETH DAY OF JULY
TWO THOUSAND FOURTEEN
Oral Order (As per Sri Thota Ashok Kumar, Hon’ble Member)
***
1. The unsuccessful complainant is the appellant. He purchased tractor/trailor bearing No.AP-01-V-2961 from the show room of first opposite party atNirmal with the finances provided by the second opposite party and the third opposite party is the principal debtor of the second opposite party and fourth opposite party is the arbitrator of the second and third opposite parties. The complainant entered into a loan agreement with the second opposite party and its principal debtor third opposite party vide loan agreement NO.324240 dated 20.06.2005 agreeing to repay the loan amount in 20 equal instalments @ 24,790/-. He paid the last instalment on 19.06.2010 and cleared the total due amount. Subsequently he requested the opposite parties 2 and 3 to issue NOC and return the title deeds and pattedar passbooks of his agricultural lands but the opposite party no.2 did not return the same nor issued NOC. ON the other hand the complainant received the notice from the second opposite party on 5.11.2011 i.e., after one year from the date of payment of last instalment demanding a sum of 75,924/- towards penalty on receiving the said notice the complainant personally approached the second opposite party on 19.11.2011, obtained statement of accounts pertaining to the said loan transaction and the said statement revealed that the principal debt and interest are zero but AFC is 75,924/-. At no point of time the complainant was informed about the said AFC much less at the time of paying last instalment. The said acts of the opposite party amount to deficiency in service and hence the complaint to direct the opposite parties to declare that the complainant cleared the loan and interest amount and also to waive AFC charges, to direct the second opposite party to issue NOC and return the title documents to the complainant and also to direct the opposite parties no.2, 3 and 4 to pay Rs.2 lakh compensation etc.
2. Despite service of notice the opposite parties nos.1 and 4 remained absent and consequently they were set exparte. However the second and third opposite party filed their counter while admitting the loan transaction and execution of the loan agreement resisted the claim and the gist of the said counter is as under:
The complainant purchased tractor from the opposite party no.1 & second and third opposite party have provided a loan of RS.4,10,000/- for purchasing the said tractor and agreed to pay the loan amount in 20 EMIs in 60 months as quarterly payment commencing from 20.09.2005. The complainant did not pay the instalments regularly as agreed and from 2nd instalment onwards he became defaulter several times. Therefore the opposite parties no.2 and 3 have got right to claim AFC charges on account of delay in paying instalments and other charges basing on the loan agreement dated 20.06.2005 duly executed by the complainant in favour of the opposite parties no.2 and 3. Since the said amount was not paid a notice was issued to the complainant requesting him to pay 75,924/- towards penalty AIC, CRA and AFC but in vain as such the matter was referred to the fourth opposite party arbitrator on 12.01.2012 by the opposite parties no.2 and 3 and thus prayed to dismiss the complaint.
3. The complainant filed evidence affidavit reiterating the contents of the complaint and marked Exs.A1 to A5 whereas opposite parties no.2 and 3 filed a memo to treat the contents of the counter as their evidence and marked Exs.B1 and B2.
4. Having heard both sides and considering the material on record the District Forum vide impugned order dismissed the complaint on the ground that already the opposite parties no.2 and 3 initiated arbitration proceedings.
5. Feeling aggrieved with the said dismissal, the complainant filed this appeal and mainly contended that the opposite parties are putting him at ransom and blackmailing him to extract money which are not at all due by him taking advantage of the blank cheques and pattedar passbooks in their favour and that the acts of the opposite parties amount to deficiency in service, unfair and deceptive trade practice. It is further contended byu the complainant that recoveryproceedings and arbitrator proceedings are no bar for filing the consumer complaint and thus prayed to allow the appeal and set aside the impugned order.
6. Written arguments of the opposite parties no.2 and 3 filed and also heard counsel for the complainant.
7. Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
8. There is no dispute that the complainant purchased tractor/trailor bearing NO.AP-01-V-2961 from the opposite partyno.1 with finance provided by the opposite parties no.2 and 3 and that Ex.B2 loan agreement No.324240 dated 20.06.2005 was executed by him in favour of the said opposite parties. Clause 29 of Ex.B2 pertaining the appointment arbitrator for the purpose of dispute with reference the loan transaction is as under:
29. Arbitration:
All disputes, differences and/or claim arising out of these presents or in any way touching or concerning the same or as to constructions, meaning or effect hereof or as to the right and liabilities fo the parties hereunder shall be settled by arbitration to be held in accordance with the provision of the Arbitration and Conciliation Act, 1996 or any statutory amendments thereof and shall be referred to the sole arbitrator to be nominated by the Lender. In the event of death, refusal, neglect, inability or incapability of a person so appointed to act as an arbitrator, the Lender may appoint a new arbitrator. The arbitrator shall not be required to give any reasons for the award and the award of the arbitrator shall be final and binding on all parties concerned. The arbitration proceeding shall be held in Mumbai.
9. In view of the said clause the dispute if any between parties to the agreement pertaining to the loan transaction shall be settled by the arbitrator in accordance with the provisions of the arbitration conciliation Act 1996 and the decision of the arbitrator is final and binding on all the parties to the agreement. As per clause 30 of Ex.B2 the jurisdiction for arbitration proceedings is Mumbai. It is an admitted fact that the second opposite party addressed a notice dated 5.11.2011 to the complainant demanding him to pay 75,924/- towards penalty for late payment of instalments. The complainant contended that on receiving the said notice he approached the second opposite party and informed that he paid total amount due under the loan and that the statements of account furnished to him also disclose that the principal amount and interest due as zero but AFC is shown is 75,924/- and that in fact he did not agree to pay AFC charges etc. The complainant did not place any material on record to prove that he paid all the instalments in time and that he never committed default or delay.
10. Ex.B1 dated 12.01.2012 discloses that with regard to dispute pertaining to non-payment of AFC chares aforesaid the opposite parties no.2 and 3 appointed fourth opposite party as their arbitrator. It appears that having come to know about the said fact the complainant filed the present complaint vide CFR 52 dated 13.2.2012 which is subsequent the initiation of arbitration proceedings.
11. In National Seeds Corporation Ltd vs Madusudan Reddy 2012(2) SCC 506, the Hon’ble Supreme Court held that:
“ The remedy of arbitration is not the only remedy available to a grower. Rather, it is an option remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Protection Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the consumer Protection Act.However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking section 8 of the Arbitration and conciliation Act, 1996 Act. Moreover, the plain language of section 3 of the Consumer Protection Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”
12. Since in this case as arbitration proceedings had been initiated before filing of the consumer complaint, we feel it appropriate for the complainant to pursue the remedy before the arbitrator. We do not find any infirmity or irregularity in the order passed by the District Forum.
13. In the result the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.09.07.2014
కె.ఎం.కె.*
