State Consumer Disputes Redressal Commission
Tirlok Chand vs M/S Bansal Credits on 18 December, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 329 of 2018 Date of Institution : 06.11.2018 Date of Decision : 18.12.2018 Tirlok Chand son of Sh. Phool Singh resident of H.No.1683, Mauli Jagran Complex, U.T., Chandigarh. .......Appellant/Complainant. Versus 1. M/s Bansal Credits Limited through its Managing Director Kamal Aggarwal, Regd. Office:1, Ansari Road, 2nd Floor, Above Allahabad Bank, Darya Ganj, New Delhi. 2. Mohali Motors Finance Company, SCO No.208, Motor Market, Sector 48-C, Chandigarh through its Proprietor Mrs. Navjot Kaur. ...Respondents/Opposite Parties. Appeal No. : 330 of 2018 Date of Institution : 06.11.2018 Date of Decision : 18.12.2018 Ramesh Chand son of Sh. Sukhdev Chand resident of H.No.2522/1, Sector 49-C, Chandigarh. .......Appellant/Complainant. Versus 1. M/s Bansal Credits Limited through its Managing Director Kamal Aggarwal, Regd. Office:1, Ansari Road, 2nd Floor, Above Allahabad Bank, Darya Ganj, New Delhi. 2. Mohali Motors Finance Company, SCO No.208, Motor Market, Sector 48-C, Chandigarh through its Proprietor Mrs. Navjot Kaur. ...Respondents/Opposite Parties. Appeal No. : 331 of 2018 Date of Institution : 06.11.2018 Date of Decision : 18.12.2018 Raju Nirmal son of Sh. Ram Parshad resident of H.No.370, Near Shiv Mandir, Village Burail, U.T., Chandigarh. .......Appellant/Complainant. Versus 1. M/s Bansal Credits Limited through its Managing Director Kamal Aggarwal, Regd. Office:1, Ansari Road, 2nd Floor, Above Allahabad Bank, Darya Ganj, New Delhi. 2. Mohali Motors Finance Company, SCO No.208, Motor Market, Sector 48-C, Chandigarh through its Proprietor Mrs. Navjot Kaur. ...Respondents/Opposite Parties. Appeal No. : 332 of 2018 Date of Institution : 06.11.2018 Date of Decision : 18.12.2018 Rakesh Sharma son of Sh. Kaushal Kumar resident of H.No.1580, Village Burail, Sector 45, U.T., Chandigarh. .......Appellant/Complainant. Versus 1. M/s Bansal Credits Limited through its Managing Director Kamal Aggarwal, Regd. Office:1, Ansari Road, 2nd Floor, Above Allahabad Bank, Darya Ganj, New Delhi. 2. Mohali Motors Finance Company, SCO No.208, Motor Market, Sector 48-C, Chandigarh through its Proprietor Mrs. Navjot Kaur. ...Respondents/Opposite Parties. Appeals under Section 15 of the Consumer Protection Act, 1986 against order dated 26.09.2018 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Sukhbir Singh, Advocate for the appellant(s)/complainant(s).
Sh. Manish Sharma, Advocate for respondent No.1.
None for respondent No.2.
PER RAJESH K. ARYA, MEMBER Vide this common order, we propose to dispose of above four appeals bearing Nos.329, 330, 331 and 332 all of 2018 filed by the appellants/complainants against orders dated 26.09.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short 'the Forum' only), vide which, their respective Consumer Complaints bearing Nos.27, 26, 24 and 25 all of 2018 were dismissed by the Forum being not maintainable.
2. To dictate order, facts are being culled from the case of Tirlok Chand Vs. M/s Bansal Credits Limited & Anr., Consumer Complaint No.27 of 2018, against which, Appeal No.329 of 2018 has been filed.
3. Before the Forum, it was case of the complainant that the complainant had financed his vehicle through Opposite Party No.2 to the extent of Rs.40,000/- for and on behalf of Opposite Party No.1. It was stated that the loan amount was discharged but 'No Due Certificate' was not issued by Opposite Party No.1. Hence, a consumer complaint was filed before the Forum for directing the Opposite Parties to issue 'No Due Certificate', pay damages and costs of litigation.
4. On the other hand, Opposite Party No.1, in its reply, stated that they were not privy to the contract and the consumer complaint against it was not maintainable. On these lines, the cause was sought to be defended. Opposite Party No.2, in its reply, filed by way of affidavit, stated that it was not at fault, in any way, as it was legal and moral duty of Opposite Party No.1 to issue 'No Dues Certificate'.
5. It may be stated here that during pendency of consumer complaint(s), Opposite Party No.1 moved an application stated that per arbitration clause, since matter had been arbitrated and award had been passed, the consumer complaints could not proceed further as per law.
6. After going through the record and hearing submissions of Counsel for the parties, the Forum dismissed the complaint by observing in Paras 9 to 12 of its as under:-
"9. Admittedly, there was arbitration clause which was resorted to and the arbitrator had sent registered notice to the complainant and service was declared. The complainant did not participate in the arbitration proceedings. Now the final award has been passed. Existence of arbitration clause in the agreement is not in dispute before us at all.
10. The award passed by the arbitrator under the relevant Act is final subject to filing of objections before the Principal Civil Judge of concerned District. If the award becomes final, it will be executed as a decree of the civil court. Two parallel proceedings, or to say inconsistent orders, cannot be passed one by the Consumer Fora and another by the Civil Court as it will lead to chaos and indiscipline.
11. The learned counsel for the OPs has drawn our attention to case titled as Instalment Supply Ltd. Vs. Kangra Ex-Serviceman Transport, I (2007) CPJ 34 (NC) vide which in para 1 it was observed as under:-
"1. The issue involved in this case is whether a complaint can be decided by the Consumer Fora after an arbitration award is already passed. The simple answer to this question is No."
Our attention was further drawn to paragraph No.3 of the said judgment, which reads as under :-
"3. Dissatisfied with the order of State Commission, the petitioner has filed the revision. It was contended by the Counsel of the petitioner that an arbitration award has been passed in this case which is binding on the parties. He further submitted that the complaint was barred by res judicata inasmuch as respondent No. 1 concealed from this Commission that all disputes between the petitioner and respondent No. 1 had already been settled by arbitration in accordance with Arbitration Agreement contained in the said Hire Purchase Agreement (HPA). The award dated 5.9.2000 of the Arbitrator Mr. K.L. Bhendwal had already been published and delivered and the award takes into account all the payments made or due. In terms of said award, the respondent No. 1 owes the petitioner a sum of Rs. 58,114 towards arrears of hire money, interest and other charges under the said agreement. Though, this fact was brought to the notice of District Forum in the reply but was ignored..."
12. The learned counsel for the OPs further relied on Ethiopian Airlines Vs. Ganesh Narain Saboo, Civil Appeal No.7037 of 2004 decided on 9.8.2011 vide which the Hon'ble Apex Court has held, proceedings before the Consumer Fora are like that of a civil suit. Further reliance placed on case titled as Vishnu Sugar Mils Ltd. Vs. I.S.P. Trading Co., AIR 1984 Cal 246 and the relevant paragraph 7 of the same reads as under :-
"7. If we look at the point from a different angle, in our opinion, we would come to the same conclusion. After all, the principle of res judicata is meant to avoid conflict in decisions. We have repeatedly asked Mr. Das as to whether if we allow the present suit to proceed and if it ends in a decree in favour of the plaintiff, such a decree would not be inconsistent with the decree which the defendant had already obtained against the plaintiff. Mr. Das has failed to answer this question though, in our opinion, there could be no doubt about the fact that the answer would be in the affirmative. Since the answer would be in the affirmative this suit should no longer be allowed, to proceed with a possible risk of ending in an inconsistent decree."
Again our attention was drawn to order of the Hon'ble National Commission in T. Srinivas & Anr. Vs. M/s Srija Construction, Revision Petition No.3419 of 2013 decided on 19.11.2015 vide which it was held, respondent is entitled to prove his claim before the arbitrator by leading evidence whereas proceedings before the State Commission were to be disposed of summarily and further proceedings for similar relief could not have been instituted before the State Commission. It was further held, State Commission committed error in holding, both proceedings may go simultaneously. The words 'in addition' appearing in Section 3 of the Consumer Protection Act enables the complainant to file a complaint before the Consumer Forum and also not file any other Forum. We feel, till the award passed in this case is in existence, or unless it is set aside by the competent authority under the relevant Act, this consumer complaint is not maintainable. It is held so, to avoid inconsistent orders."
7. Feeling aggrieved, the aforesaid appeals, have been filed by respective appellants/complainants.
8. We have heard the Counsel for the parties and, have gone through the evidence, and record of the case, carefully.
9. Counsel for the appellant/complainant raised an argument that since filing of a consumer complaint before Consumer Fora is an additional remedy as per Section 3 of Consumer Protection Act, 1986, therefore, the complaint filed was maintainable.
10. On the other hand, Counsel for respondent No.1 argued that the Forum rightly dismissed the complaint being not maintainable once the Arbitrator had passed an award against the appellant/complainant. To support his argument, he placed reliance on the case titled ' M/s Magma Fincorp Ltd. Vs. Gulzar Ali', Revision Petition No.3835 of 2013 decided by Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 17.04.2015 and ' Dinesh Premji Shah Vs. S. N. Pathak', II (2006) CPJ 200 (NC).
11. The only question, that falls for consideration in all these appeals, is, whether the Forum rightly dismissed the complaints being not maintainable once arbitration award was passed by the Arbitrator? We are one with the view expressed by the Forum. No doubt, arbitration award (Annexure A) on record of Forums' file was passed on 01.06.2018. Vide the aforesaid award, the Arbitrator awarded a sum of Rs.17,053/- payable to the respondents/opposite parties. The arbitration award was passed exparte as the appellant/complainant failed to participate in the arbitration proceedings despite being served. In the case of M/s Magma Fincorp Ltd. (supra), the Hon'ble National Consumer Disputes Redressal Commission, New Delhi clearly held in Para 12, inter-alia, as under:-
"12. It may be mentioned here that as per the agreement entered into between the parties, it was stipulated that in the case of dispute between the parties, the matter could be referred to an Arbitrator. It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred. It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the Consumer Fora, this will lead to contradictory judgments as has been done in this case. The order passed by the Fora below in this case is not legally tenable. The Fora below have wrongly arrogated to themselves the power, which these Fora did not possess. In case, the petitioner has got any objection against the Arbitrator, he should challenge the award before the higher Court, as per Law. The question whether the complainant was served in this case, whether the award passed by the Arbitrator is correct or not, all these questions do not come in the ambit of power of the Consumer Commission."
12. Further in the case of Dinesh Premji Shah (supra), the Hon'ble National Consumer Disputes Redressal Commission, New Delhi held in Para 13, interalia, as under:-
".....A Consumer Forum cannot go against the order passed by the Civil Court. Consumer Protection Act, 1986 provides only an additional remedy but does not confer jurisdiction on a Consumer Forum to act as an appellate body or exercise powers which do not emanate from the Act constituting it."
13. The Forum, in its order, also extracted relevant parts of the judgments in the cases of Instalment Supply Ltd.; Ethiopian Airlines and T. Srinivasan & Anr. (supra), wherein similar view was expressed by the Hon'ble Apex Court and Hon'ble National Consumer Disputes Redressal Commission, New Delhi, as referred to above.
14. In our considered opinion, once arbitration award has been passed, the appellant/complainant could not knock the doors of the Consumer Fora. Had the arbitration award been set aside by the Competent Court, the matter would have been different and in that event, the complaint filed before the Forum could be said to be maintainable and proceeded with. The complainant failed to join the arbitration proceedings and exparte award was passed, which still stands as on today. The arbitration award is still not challenged by the appellant/complainant. The submission made in the grounds of appeal that the award passed during the pendency of consumer complaint was not binding on the Forum is devoid of merit in view of the settled law on the subject as referred to above. To challenge the arbitration award, the remedy available with the appellant/complainant is to approach the Civil Court having competent jurisdiction. Accordingly, we endorse the view held by the Forum and in our opinion, the appeals are liable to be dismissed out rightly.
15. No other point was urged by the Counsel for the parties.
16. In view of the above discussion, it is held that the orders dated 26.09.2018 passed by the Forum in Consumer Complaints bearing Nos.27, 26, 24 and 25 all of 2018, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality, warranting the interference of this Commission.
17. No other point was raised by the Counsel for the parties.
18. For the reasons recorded above, all the appeals bearing Nos.329, 330, 331 & 332 all of 2018, being devoid of any merit, are dismissed with no order as to costs. The impugned orders passed by the Forum is upheld.
19. Certified copy of this order be placed in the files of appeals bearing Nos.330, 331 and 332 all of 2018.
20. Certified copies of the order be sent to the parties free of charge.
21. File be consigned to the Record Room after completion.
Pronounced 18.12.2018.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad