Orissa

Jajapur

CC/8/2015

Sk.Jasir - Complainant(s)

Versus

Director M/S.Cholamandalam Investment and Finance Co.Ltd - Opp.Party(s)

Srikanta Mohapatra

07 Aug 2015

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                      Present:  1.Shri Biraja Prasad Kar, President,

                                                                                      2.Sri Pitabas Mohanty, Member,

                                                                                      3.Miss Smita Ray, Lady Member.                          

        Dated the 7th day of August,2015.

                                        C.C.Case No.08 of 2015

SK.Jasir,  S/O SK.Habib

Vill . Durgapur,P.O. Sujanpur,P.S.

P.S.Jajpur Sadar, Dist.Jajpur.                                                                 …… ……....Complainant .                                                        .                                     (Versus)

1. Director,M/S Cholamandalam Investment and Finance Co.Ltd,559-Annapurna

 Complex,Lewis Road,B.J.B,Nagar,Bhubaneswar.

2.  Branch Manager,Cholamandalam Investment and Finance Co.Ltd,Rout

    Complex,near Axix Bank,Chandikhole,P.O.Sunguda,Dist.Jajpur.

                                                                                                                    ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                          

For the Complainant:                      Sri  Srikant Mahapatra, Sri Seetikantha Das, Advocates.

For the Opp.Parties:                       Sri Ashok Ku. Pahil, Advocate.                                                                                        

                                                                                                 Date of order:   07. 08. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

                        The petitioner has filed this present dispute alleging deficiency in service on the part of the O.Ps.

                        The facts relevant for this present dispute shortly as per complain petition are that the petitioner being an unemployed youth purchased a vehicle TATA L.P.T 3118 by availing a loan from the O.Ps . For such availing the loan, the petitioner has executed the loan-cum-hypothecation agreement with the O.Ps. As per hypothecation agreement  the petitioner has paid the installment regularly. But became defaulte r because of mines problem in our states for  which the O.P. no.1 filed a complaint case vide 1.C.C No.3849/13  before the Learned  S.D.J.M. Bhubaneswar for offence U/S.138 of N.I. Act for realization of amount of Rs.5,95,711/- wherein the petitioner is facing trial.

                        That in the mean time without following the legal procedure the O.Ps. repossessed the vehicle and auctioned  the vehicle i.e on 18.12.2014 and sold the vehicle with very lower value. That the petitioner has not received any letter  or  any correspondence from the O.Ps. except 1.C.C case No.3849/13.

                        That the cause of action arises on dt.18.12.14 when the petitioner get the notice in  Execution Case No. 48/14 . Accordingly the petitioner finding no other way has come with the complaint petition with his prayer to direct the O.Ps. to pay the amount of Rs.7,00,000/- for their deficiency in service and negligence attitude due to cause of financial loss.

                        The O.Ps. after appearance have filed the objection / written version denying the allegations of the petitioner . In the written version the O.Ps. have taken the following pleas:-

1. The petitioner did not pay the installment dues in time and on repeated demands did not comply the O.Ps demand. Hence , the O.P firm deposited the cheque issued by the petitioner at Bank on dt.11.05.13 of Rs.59,5711/- . The said cheque is bounced back on 13.05.2013 as there is  insufficient funds  in A/C . Notice was issued U/S 138 of N.I. Act on dt.17.05.2013 . As the petitioner did not comply the notice dt.17.05.13 of the O.P firm ,the O.P firm as complainant filed 1.C.C.Case No.3849 /2013 in the court of S.D.J.M,Bhubaneswar, Dist. Khurda.
2. The petitioner did not repay the installment dues in time and had not communicated in proper manner to the O.P. as a result of which the O.P.  filed Arbitration Case No.157/13 against the present petitioner and his guarantor. The notice of said Arbitration Case was served on them. As they did not contest the proceeding  Arbitration Award was passed against them on 29.08.13 . Accordingly  Execution Case No.48/2014 filed by the O.P firm in the court of District Judge, jajpur which is pending for disposal.
3. The petitioner executed the loan agreement No.XVFPBNR00000678354 on 27.12.2011 for purchasing of TATA LPT 3118. As per hypothecation loan agreement the petitioner has to pay of Rs.17,25,464/- . The finance amount of Rs.13,15,937/- and finance charge is of Rs.40,9527/- in respect of the said loan. Agreement the payment of the petitioner was irregular. In the said circumstances the O.P firm left with no other option than to take possession of the vehicle being the only security available to the O.P under the said loan agreement and after observing due procedure sold the vehicle on auction for the best available market price of Rs.10,00,000/- on 12.12.2012 . After adjusting the sale proceeds to the credit of the petitioner account there remained a sum of Rs.539176/-being the short fall amount payable by the petitioner .

                        The petitioner being  a chronic defaulter,  in view of Arbitration Case and Execution Case the present proceeding is not maintainable and the petitioner’s claim is not coming under the C.P. Act.

                        Owing to the above narrated views of both the parties we are inclined to decide the present dispute as per our observation stated below :

                        On the date of hearing we heard the arguments from both the learned counsels . The learned counsel for the petitioner argued that the petitioner has not received any letter or any correspondence from the O.Ps. except 1CC case No.3849/13 . On the other hand the learned counsel for the  O.Ps argued that Arbitration Award has been passed against the petitioner on 29.08.13 by the Learned Arbitrator after giving reasonable opportunity to all the parties and after observing due formalities sold the vehicle.  Accordingly Execution Case No.48/2014 arising out of the above the Arbitration Award is filed by the O.P which is pending before the Court of District Judge, jajpur for disposal. The petitioner has filed the dispute on 19.02.15 after the award is passed by the learned Arbitrator. Hence, this Fora lacks jurisdiction to entertain the dispute . In this context we do not found any single scrap of papers though in absence of any documentary evidence from the side of the O.Ps. we are unable to accept such contention of the O.Ps. As per observation of Hon’ble National Commission reported in 2012(3) CPR-511-vide para-11 ( Arbitration notice must served on other parties) M/S Magma leasing Ltd. Vrs. Sri Bharat Singh, 2010(1)CPR-118-H.P, 2004(3)CPR-154-Odisha .   

                        On the above pleadings and arguments we have referred the judgement of Hon’ble National Commission reported in Installment Supply Ltd,Vrs. Kangra Ex-service man Transport Co & others 2006(3) CPR-339-N.C : 2007(1) CPR-411 and another judgement of Hon’ble State Commission Odisha in Tata Finance Ltd.Vrs. Niranjan Pal (Revision petition No.97/2012 wherein it is held that:

“ A complaint can not be decided by the consumer Fora after an Arbitration   Award is already passed .”

                        In the conclusion the reasons recorded above though we are constrained to hold that  this For a gets no jurisdiction to decide the dispute as per observations of the above apex Forum/ Commission since the learned arbitrator has already passed the award on 29.08.2013 which is prior to filing the present dispute.

                        In the instant case it is revealed from the record and copy of the Arbitration Award that award has been passed on 29.08.2013 and thereafter the petitioner has filed the Consumer Complaint on  19.02.2015.

                        Basing on the pleadings and documents available on record and circumstances of the case and decision cited above we are of the opinion that when the dispute having been decided and award was made by Sole Arbitrator, the subsequent  above C.C. Case filed by the petitioner is not maintainable.

O R D E R

                     Consequently the complaint is dismissed and the complainant  is at liberty to approach proper Forum / court  in respect of his grievance if he so likes. No cost.

 

          This order is pronounced in the open Forum on this the 7th day of August ,2015. under my hand and seal of the Forum.                                                                                          

                  

 

(Shri Biraja Prasad Kar )                                                            (Shri Pitabas Mohanty)                                                         

            President.                                                                                       Member.                                                                       

                                                                                       Typed to my dictation & corrected by me                                                                                                                                                            

 

 (Miss Smita Ray)                                                                      (Shri Pitabas Mohanty)                                                         

         Member.                                                                                         Member.