West Bengal

Birbhum

CC/4/2017

Jahangir Alam, S/O Nedaj Ali - Complainant(s)

Versus

Branch Manager, Shriram Transport Fin Co Ltd - Opp.Party(s)

Sanjit Kr Acharya

28 Dec 2017

ORDER

Parties file hazira.

The petition dated 20.02.2017 filed by the O.P Sriram Transport Finance Co. Ltd. praying for dismissal of the case on the ground of non-maintainability of the case is taking up for passing order.

Perused the petition, complaint, documents filed by the parties and other materials on record.

The complainant has contested the application without filing any formal objection.

We find that it is the case of the Complainant Jahangir Alam that he purchased a vehicle being No. 41F 4357 with the financial assistance of O.P and the O.P sanctioned Rs. 6,00,000/- and agreed amount was Rs. 9,13,187/- subject to repayment in 46 easy installment @ Rs. 20,000/- each and last installment would be Rs. 12000/-. But after making payment of Rs. 2,65,000/- he was unable to pay the rest loan amount of Rs. 6,48,187/- as the vehicle was lying dull due to break down. That the O.P has been claiming Rs. 8,48,945/- through their letter dated 10.09.15 which was more than the actual dues.

It is the further case of the complainant that he is apprehending that the O.P may take possession of his vehicle illegally, if he fails to fulfil their illegal demand.

It is further case of the complainant that activities of the O.P are illegal and improper which amount to deficiency in service and illegal trade practice.

Hence this case for cancellation of the notice dated 10.09.2015, for collecting actual dues, and for restraining the O.P from taking possession of his vehicle and for other reliefs.

On the other hand O.P by filing instant petition submitted that the present cases is not maintainable before this Forum as to resolve the dispute and realization of claim the O.P has already initiated Arbitration Proceedings as per loan agreement dated 17.08.12 and one Shri Indrajit Mukerjee has been appointed as Ld. Arbitrator, who entertained the Arbitration Proceedings of the O.P Sriram Transport Co. and issued notice to the O.P Jahangir Alam on 11.06.14. The Ld. Arbitrator ultimately passed award on 08.12.2014 vide Arbitration No. I.M. 100/2014, whereby held that the respondent i.e. complainant herein failed and neglected to  make payment of instalments as mentioned in the said loan-cum-hypothecation agreement and thereby committed breach of contract. The contract of loan have been rightly terminated by Sriram Co. and they are entitled to repossesses the said vehicle and the present complainant Jahangir Alam was directed to pay Rs. 7,26,367/- with 18% interest and cost and the certified copy of award was duly served upon the present complainant and, therefore, after passing of Arbitration Award which is valid order as per Arbitration and Conciliation Act 1996, the present complaint is not maintainable.

It is the further case of the O.P that if the complainant is aggrieved and dissatisfied with award can prefer an appeal U/s 34 of the Arbitration and Conciliation Act 1996 before the appropriate Court.

Ultimately the O.P prayed for dismissal of the case.

We find that it is the main contention of the O.P No.1 that as final award has already been passed by the Ld. Arbitrator, appointed as per terms and conditions of the agreement between the parties, so this Forum has no jurisdiction to entertain the present consumer case u/s 12 of the C.P Act.

On the other hand it is the case of the complainant he made payment of Rs. 2,65,000/- out of his loan amount but due to break down of his vehicle unable to pay remaining dues and the O.P is illegally trying to repossess his vehicle without any order of court and this Forum has every jurisdiction to entertain this case.

We find from the copy of the award dated 08.12.2014 passed by Shri Indrajit Mukherjee Ld. Arbitrator in respect of the present dispute between Sriram Transport Co. and Jahangir Alam that the O.P Sriram Transport Co. took the matter before Ld. Arbitrator and inspite of due service of notice upon the complainant Jahangir Alam did not appear in Arbitration No. I.M. 100/14 and Ld. Arbitrator passed a final award directing the complainant to pay Rs 7,26,367/- with 18% interest and cost.

We further find that the said award was passed on 08.12.2014 and the present case was filed on 05.01.2017 i.e. long after passing of award.

We find that in a recent ruling reported in III(2017)CPJ211(NC), Hon’ble National Commission in a Consumer Case with Arbitration matter pleased to hold that  “remedy under Consumer Protection Act, 1986 is an additional remedy if main remedy under the concerned act has not been taken. It was made known to the petitioner/complainant that the remedy under the Arbitration and Conciliation Act 1996 was already taken by the O.P No.1 as per provisions of agreement, therefore proceeding under C.P Act, 1986 could not have been taken as an alternative remedy. Even then if he choose not to participate in that proceedings, his absence or non-participation in Arbitration proceeding was willful and not due to lack of knowledge of such proceedings and the complaint is not maintainable.”

 

Considering overall matter into consideration and materials on record and relying upon the ruling cited above we are constrained to hold that the present case is not maintainable and remedy of the complainant is elsewhere i.e. proper Civil Court.

Hence,

O R D E R E D

that C.F case No. 04/2017 be and the same is dismissed on contest but without any cost as the present case is not maintainable before this Consumer Forum.

Copy of this order be supplied to the parties each free of cost.