West Bengal

Birbhum

CC/19/2017

Uttam Rooj, S/o Kali Sankar Rooj - Complainant(s)

Versus

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

Kalyan Asish Dhar

14 Dec 2017

ORDER

Parties file hazira.

The petition dated 11.04.2017 filed by the O.P No.1 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 Uttam Rooj that he purchased a vehicle i.e. Asoke Leyland Truck being No. 53/7589 valued at Rs. 10 lacs after taking financial assistance of Rs. 4,40,000/- from the O.P No.1. But after making payment of Rs. 3,67,978/- he was unable to pay the rest loan amount due to bad condition of business and his illness. But on 20.09.15 the O.P No.1 repossessed the said vehicle of the complainant at Raniganj under Burdwan District in loaded condition without any order of the Court. He requested the Br. Manager of the O.P No.1 to release the vehicle but in vain. Rather after 10days Branch Manager called him to his office by telephone and obtained signature of the complainant in four blank cheque with false assurance that the matter would be settled and they would release the vehicle in question. But without any notice to the complainant and without order of the court O.P No.1 sold the vehicle at Rs. 2,60,000/-.

The O.P No.1 has also filed two complaint cases U/s 138 NI Act against the complainant which are pending before Ld. Judicial Magistrate, Suri.

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

Hence this case for compensation and other reliefs.

On the other hand O.P No.1 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 20.02.13 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 Uttam Rooj on 14.08.16. The Ld. Arbitrator ultimately passed award on 28.11.2016 vide Arbitration No. I.M. 159/2016, 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 Uttam Rooj was directed to pay Rs. 3,87,836/- with 12% 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 No.1 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 No.1 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. 3,67,978/- out of his loan amount but due to his illness and bad condition of business unable to pay remaining dues and the O.P No.1 illegally repossessed his truck and sold out the same without any order of court and this Forum has every jurisdiction to entertain this case.

We find from the copy of the award dated 28.11.2016 passed by Shri Indrajit Mukherjee Ld. Arbitrator in respect of the present dispute between Sriram Transport Co. and Uttam Kr. Rooj that the O.P Sriram Transport Co. took the matter before Ld. Arbitrator and inspite of due service of notice upon the complainant Uttam Rooj he did not appear in Arbitration No. I.M. 159/16 and Ld. Arbitrator passed a final award directing the complainant to pay Rs 3,87,836/- with 12% interest and cost.

We further find that the said award was passed on 28.11.2016 and the present case was filed on 16.02.2017 i.e. 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. 19/2017 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.