Order No. 12 dt. 03/11/2017
The case of the complainant in brief is that the complainant for the purchase of a Swift Dezire car obtained loan from o.p. to the tune of Rs.6,40,000/- and an agreement was entered into between the parties and the car purchased by the complainant was hypothecated to o.p. It was agreed between the parties that the complainant would pay Rs.16,760/- per month till June 2015. The complainant paid most of the installments, while 4 installments remained due the men of o.p. forcibly took possession of the car without prior notice to the complainant. The complainant stated that an arbitration proceeding was started without the knowledge of the complainant. After coming to know of the said fact the complainant issued a lawyer’s notice demanding the compensation from o.p. but no reply was given by o.p. for which the complainant filed this case praying for direction upon the o.p. for returning of the car and compensation of Rs.1 lakh and further compensation of Rs.90,000/- for loss of income and litigation cost of Rs.20,000/-.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant failed to pay the loan amount for which an arbitration proceeding was started and Ld. Arbitrator Ashok Pandey was pleased to pass an interim order u/s 17 of the Arbitration and Conciliation Act, 1996 directing the custodian to take possession of the said vehicle and the said order was passed on 26.8.14. The notice was sent to the complainant before initiation of the proceeding before Ld. Arbitrator. During the arbitration proceeding the notice was also issued, but the complainant did not turn up for which ex parte award was passed by Ld. Arbitrator. After the award passed by Ld. Arbitrator this Forum has no jurisdiction to entertain the case. The o.p. further stated that o.p. has already started one execution proceeding against the complainant as money execution case no.1239 of 2015 before the City Civil Court at Calcutta. There was no deficiency in service on the part of o.p. and as such, o.p. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant took loan from o.p.?
- Whether as per the loan agreement an arbitration proceeding was initiated by o.p.?
- Whether the award was passed by Ld. Arbitrator and the execution case is pending before Ld. Judge at City Civil Court, Calcutta?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant for the purchase of a Swift Dezire car obtained loan from o.p. to the tune of Rs.6,40,000/- and an agreement was entered into between the parties and the car purchased by the complainant was hypothecated to o.p. It was agreed between the parties that the complainant would pay Rs.16,760/- per month till June 2015. The complainant paid most of the installments, while 4 installments remained due the men of o.p. forcibly took possession of the car without prior notice to the complainant. The complainant stated that an arbitration proceeding was started without the knowledge of the complainant. After coming to know of the said fact the complainant issued a lawyer’s notice demanding the compensation from o.p. but no reply was given by o.p. for which the complainant filed this case praying for direction upon the o.p. for returning of the car and compensation and other reliefs.
Ld. lawyer for the o.p. argued that the complainant failed to pay the loan amount for which an arbitration proceeding was started and Ld. Arbitrator Ashok Pandey was pleased to pass an interim order u/s 17 of the Arbitration and Conciliation Act, 1996 directing the custodian to take possession of the said vehicle and the said order was passed on 26.8.14. The notice was sent to the complainant before initiation of the proceeding before Ld. Arbitrator. During the arbitration proceeding the notice was also issued, but the complainant did not turn up for which ex parte award was passed by Ld. Arbitrator. After the award passed by Ld. Arbitrator this Forum has no jurisdiction to entertain the case. The o.p. further stated that o.p. has already started one execution proceeding against the complainant as money execution case no.1239 of 2015 before the City Civil Court at Calcutta. There was no deficiency in service on the part of o.p. and as such, o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant for purchasing a car took loan from o.p. and it is also an undisputed fact that a loan agreement was entered into between the parties whereby it was specifically stated as regards the mode of payment to be made by the complainant for liquidation of the loan amount. Since the complainant failed to repay the loan amount within the stipulated period as per the terms of the loan agreement arbitration proceeding was started. Ld. Arbitrator passed an award and for execution of the said award an execution case has already been filed by Ld. Judge City Civil Court, Calcutta. In view of such background of the case and the complainant has the opportunity to raise his plea before Ld. Judge City Civil Court in the proceeding of the said execution case. Apart from the said fact since an arbitration proceeding had already been started and the award has been passed by Ld. Arbitrator, therefore at this stage this Forum has no authority to entertain the dispute as raised by the complainant. It is also relevant to mention here that in a judgment reported in 2017(2) CPR 277 (NC) Hon’ble National Commission held that provisions of C.P. Act, 1986 cannot be used in derogation of Arbitration and Reconciliation Act, 1996. In view of the facts and circumstances as stated above, we hold that the case field by the complainant has got no merit and the complainant will not be entitled to get relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.412/2015 is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
