ORDER NO.5     DATED 05.08.2014

          Record is put up for passing order in respect of MA No. 288/2014 and non-maintainability prayer made by the Complainant and the OPs, respectively.

          By filing the MA No. 288/2014 under Section 13 (3B) read with Section 18 of the Consumer Protection Act, the Complainant has prayed for stay of sale and immediate release of his vehicle nos. WB-23B/5595 and WB-25C/3976.

          In their W.O. against application under Section 13 (3B) and also challenging the maintainability of the complaint, the OPs have made out that the complaint petition is vexatious, speculative, and barred under the C.P. Act, being a commercial transaction, having no prima facie case against the OPs, and is liable to be dismissed. The dispute is purely civil in nature, and the remedy lies before the competent court, and not in this Forum, and also it involved complicated question of fact and law, which cannot be adjudicated in a summary trial. The 02 (two) trucks have been used for commercial purpose and were run with the help of Drivers and Khalasis, for which the Complainant is not a consumer of the OPs. Before institutuion of the complaint case, the OPs terminated the hire purchase agreement and initiated arbitration proceedings due to non-payment of E.M.I. in time, whereupon as per Order dated 04.04.2014 of the Ld. Arbitrator, Gyanendra Kumar Singh, the vehicles were seized from the custody of the Complainant. As the arbitration proceeding has been initiated first, this complaint case is not maintainable and liable to be rejected. Further, a criminal case against the Complainant was started by the Detective Department of the Kolkata Police in respect of his other transport vehicles and he was arrested in connection with the Ballygunge P.S. Case No. DD/16 dated 17.02.2014, which case is pending.

          Ld. Advocate for the OPs has submitted that there has been an arbitration proceedings in the matter, which is previous to this petition of  complaint, for which the same is not maintainable. The two trucks were run on commercial basis and the same cannot be in any way for the purpose of livelihood by means of self-employment of the Complainant, for that Drivers and Khalasis were appointed on payment. This is the prime area for which the case is not permissible at all before the consumer fora. He has cited the order dated 04.04.2014 by the Ld. Sole Arbitrator in the matter in Arbitration Case No. GS 214. He has referred to a decision of the Hon’ble Supreme Court, as reported in (2012) 2 SCC 506, in support of his contention that in case of arbitration made, the complaint case is not maintainable. He has also relied upon a decision, in this respect, by the Hon’ble National Commission, as reported in 2006 (3) CPR 339 (NC).

          Ld. Advocate for the Complainant has submitted that there has been no notice of the arbitration proceedings to the Complainant, which has also not been mentioned in the re-possession letter dated 03.03.2014 of the OPs.

          Upon considering the materials on record, it is very much found that arbitration proceedings have been initiated before the Ld. Sole Arbitrator, Mr. Gyanendra Kumar Singh before initiation of this complaint case. So, in view of such proceedings, being Arbitration Case No. GS 214, this complaint case being a latter one, the same is not maintainable in the eye of law. It has also been held by the Hon’ble National Commission in the case referred, reported in 2006 (3) CPR 339 (NC), complaint can not be decided by the Consumer Fora after an arbitration award is already passed.

          Accordingly, the prayer of the OPs for dismissal of the case is considered and allowed and prayer made by the Complainant in MA No. 288/2014 also falls through and stands rejected.