DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, CAMP COURT AT AMRITSAR, PUNJAB.

 

Complaint Case No : RBT/CC/2018/198

Date of Institution : 16.03.2018/29.11.2021

Date of Decision : 20.06.2022

Ratan Singh S/o Dalip Singh R/o H. No. 235, Village Manawala Khurd, B.O. Bundala, District Amritsar. …Complainant/Respondent

Versus

L & T Finance Limited O/o G.R. Tower, 1st Floor, Mall Road, Amritsar-143001 through its Authorized Person/Manager. 

…Opposite Party/Applicant

Application under Sections 5 and 8 of the Arbitration and Conciliation Act amended up to date 

Present: Sh. BS Rajput Adv counsel for complainant/respondent.

Sh. Mohit Nanda Adv counsel for the opposite party/ applicant.

Quorum.-

1. Sh. Ashish Kumar Grover : President

2. Smt. Urmila Kumari : Member

(ORDER BY ASHISH KUMAR GROVER PRESIDENT):

    The present complaint has been received by transfer from District Consumer Commission, Amritsar in compliance of the order dated 26.11.2021 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. In the present complaint the opposite party/applicant moved an application under Sections 5 and 8 of the Arbitration and Conciliation Act amended up to date. 

2. It is submitted in the application that the complainant/ respondent has concealed the material facts from this Commission that he has been defaulter of the opposite party for a long time and had not paid the installments and yet to pay the outstanding and other pending amounts. The case in hand also contained Specific Arbitration Clause i.e. Clause 12 of the Loan Agreement. The dispute between the parties has arisen out of the written agreement and in view of the above clause of Loan Agreement if any dispute arising during the subsistence of agreement or thereafter will be settled by appointing an arbitrator. Further, the matter under complaint has already been adjudicated and Arbitration Award has also been passed in regard to the Loan Agreement in question. In place of challenging the award the complainant has filed the present complaint by concealing material facts. Since the matter once been adjudicated under the provisions of Arbitration and Conciliation Act 1996 the same matter cannot be brought before any other forum as the only remedy is to challenge the award. 

3. As per provisions of Section 5 and 8 of Arbitration and Conciliation Act 2017 the case is to be referred to the Arbitrator. The provisions of Section 5 and 8 is reproduced that.-

Section 5: Extent of judicial intervention.-

Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 

Section 8 Power to refer parties to arbitration where there is an arbitration agreement.-

8. Power to refer parties to arbitration where there is an arbitration agreement.-

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application alongwith a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

Lastly, the applicant/opposite party prayed to allow the application and case be referred to the arbitrator in view of the provisions contained in Section 8 of Arbitration and Conciliation Act 1996.

4. In reply the complainant/respondent has taken preliminary objections that the present application is not maintainable and opposite party has no locus standi to file the present application. 

5. On merits, it is denied that the complainant has concealed material facts from this Commission and defaulter of the opposite party for a long time and had not paid the installments. All the receipts of the installments already enclosed with the complaint. But the refectory man illegal take the possession of the tractor from the complainant without issuing any prior notice or any intimation to the complainant. The complainant is an illiterate person and no knowledge regarding any arbitration award passed against the complainant and no notice has been served regarding arbitration award. Lastly, the complainant/respondent prayed for the dismissal of the present application with costs. 

6. We have heard the learned counsel for the parties and gone through the record on the file.

7. It is not disputed that the complainant has taken tractor loan from the opposite party for the purchase of tractor on 29.2.2016 to the tune of Rs. 4,95,000/-. The plea raised by the opposite party in the application that as the complainant has been defaulter in making payment of the loan amount, as such as per Clause 12 of the Arbitration Clause of the Loan Agreement, the matter was brought to the Arbitrator and award has already been passed and once the matter has been adjudicated under the provisions of Arbitration and Conciliation Act 1996, the same matter cannot be brought before any other Forum. In this case Arbitrator passed the order against the complainant and copy of the order was delivered to the complainant as on the order itself there is an endorsement which proves that the copy of order passed by the Arbitrator was delivered to the complainant. To prove this plea the opposite party has placed on record award passed by the Arbitrator Sameer M Suryawanshi. 

8. In support of his plea learned counsel for the opposite party has placed reliance upon 2016 (2) CPJ-231 titled as Magma Fincorp Limited Versus Gulzar Ali vide which the Hon'ble National Commission, New Delhi held that.-

“ Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d) and 21(b) Jurisdiction-Hire Purchase agreement-Default in payment of installment-Forcible Repossession of Vehicle- Deficiency in service alleged-Arbitration Clause-Arbitration award-Legality of whether complaint can be decided by Consumer Fora after arbitration award already passed-Held, as per agreement entered into between parties matter to be referred to Arbitrator-Terms and conditions of agreement do not bar jurisdiction of Consumer Fora when parties opt to proceed, first of all, before Arbitrator, in that event, jurisdiction of Commission stand barred-Moreover, Consumer Fora cannot question award and no power to set aside award or decree passed by Civil Court-If this power is give to Consumer Fora, this lead to contradictory judgments- Order passed by Fora below not legally tenable-Fora below wrongly arrogated to themselves power, which these Fora did not possess-Petitioner got any objection against Arbitrator, he should challenge award before higher court, as per law-Thus, question whether complainant was served in this case, whether award passed by Arbitrator is correct or not, all these questions do not come in ambit of power of Consumer Commission.”

Similar view has been taken by the Hon'ble National Commission in case titled M/s Manas Constructions Versus L & T Finance Limited and others 2018 (1) CLT-312 in which it has been held that consumer complaint is not maintainable as the arbitration proceedings are going on and as such proceedings under Arbitration and Conciliation Act and that under the Consumer Protection Act cannot go together, hence the complaint is not maintainable under the Consumer Protection Act. Further, reliance has been placed upon Lalit Kumar Dangi Versus Kalpana P. Sanghavi and another 2018 (3) CPJ-380 of the Hon'ble National Commission wherein it has been held that if parties have gone into arbitration and arbitration award has been passed, doors of Consumer Forum are not open for same relief. Same view has been held by the Hon'ble National Commission in case Instalment Supply Limited Versus Kangra Ex-Serviceman Transport Co. and another 2007 (1) CLT-367.

9. The aforesaid law squarely covers the case of the opposite party as in this case the award has already been passed by the arbitrator which is binding on the parties and as the complainant has not preferred any application under Section 34 of Arbitration and Conciliation Act 1996 against the order passed by the Arbitrator and once the order has been passed by the Arbitrator and no application under Section 34 of the Arbitration and Conciliation Act 1996 against the said order has been filed by the complainant, this Commission has no jurisdiction to decide the present complaint which has already been passed by the Arbitrator. 

10. In view of the above discussion, we are of the view that the application filed by the opposite party is allowed and the complaint filed by the complainant is dismissed as this Commission has no jurisdiction to decide the present complaint. No order as to costs or compensation.  Copy of the order will be supplied to the parties by the District Consumer Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar. 

ANNOUNCED IN THE OPEN COMMISSION:

        20th Day of June 2022

 

 

            (Ashish Kumar Grover)

            President

              

(Urmila Kumari)

Member