State Consumer Disputes Redressal Commission
Sh. Ajay Vir Singh. vs Hdb Financial Services Ltd. & Ors. on 13 July, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
In re:- Ajay Vir Singh Versus HDB Financial Services Limited
& others.
C.C. No.06/2017
Misc Application No. : 319/2017
Order Reserved On : 13.06.2017
Date of Order : 13.07.2017
1. HDB Financial Services Limited Una City Center Una-
Nangal Road Near Petrol Pump Una District Una H.P.
2. HDB Financial Services Limited Sector-7-C Madhya
Marg Chandigarh.
3. HDB Financial Services Limited Registered office at
Radhika 2nd Floor Law Garden Road Navrangpura
Ahmedabad Gujarat.
...... Applicants/Opposite Parties
Versus
Ajay Vir Singh son of Shri Varinder Singh resident of Village
and Post Office Saloh Block No.42 Tehsil Una District Una H.P.
......Non-applicant/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Applicants : Mr. Dheeraj Kanwar Advocate.
For Non-applicant : Mr. Kuldeep Guleria Advocate.
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Whether reporters of the local papers may be allowed to see the order? Yes.
M.A. No.319/2017 in C.C. No.06/2017
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present application is filed by applicants/opposite parties for dismissal/rejection of consumer complaint filed under section 17 of Consumer Protection Act 1986 before H.P. State Consumer Commission.
Brief facts of Case:
2. It is pleaded that consumer complaint is not maintainable. It is pleaded that vehicle is a commercial vehicle. It is further pleaded that loan agreement was executed inter se parties. It is further pleaded that complainant did not pay the loan installments as per agreement and it is pleaded that State Commission has no jurisdiction to entertain and decide the original complaint on ground of commercial purpose and on ground of loan agreement. It is pleaded that complainant does not fall within the definition of consumer. It is pleaded that complainant obtained the services of opposite parties for financing his vehicle for commercial purpose. It is further pleaded that final Arbitration Award under Arbitration and Conciliation Act 1996 already stood passed in favour of opposite parties on dated 15.06.2016 and 17.10.2016. It is further pleaded that Consumer Fora has no jurisdiction to question the award passed by Arbitrator. It is pleaded that final Award was 2 M.A. No.319/2017 in C.C. No.06/2017 passed by Arbitrator prior to filing of present consumer complaint and it is pleaded that subsequent consumer complaint filed by complainant is not maintainable.
3. Per contra response filed on behalf of non- applicant/complainant pleaded therein that complainant has paid more than 95% of loan amount and complainant is willing to pay the remaining loan amount. It is further pleaded that opposite party after receiving 95% loan amount with malafide intention wants to cause loss to the complainant by way of selling the vehicle. It is pleaded that complainant had purchased the vehicle to earn his livelihood. It is pleaded that the vehicle was not used for resale by the complainant. It is pleaded that complainant did not receive any notice from Arbitrator. It is further pleaded that Arbitrator conducted unilateral proceedings at the back of complainant and violated principle of audi alteram paterm. It is further pleaded that the complainant was under legal obligation to pay the entire installment amount on or before 2019. It is further pleaded that complainant is ready and willing to pay the entire loan amount due to opposite parties as of today. Prayer for dismissal of application sought.
4. We have heard learned advocates appearing on behalf of applicants and non-applicant and we have also perused entire record carefully.
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M.A. No.319/2017 in C.C. No.06/2017
5. Following points arises for determination in present application No.319 of 2017.
1. Whether it is expedient in the ends of justice and on the principle of natural justice to continue proceedings of consumer complaint No.6 of 2017 after passing of final Arbitration Award No.1005 of 2016 dated 16.04.2016 and Final Award No.HDBFSL/128 of 2016 dated 17.10.2016 under Arbitration and Conciliation Act 1996.
2. Final order.
Findings upon point No.1 with reasons:
6. Submission of learned advocate appearing on behalf of applicants/opposite parties that present subsequent consumer complaint is not maintainable before State Commission in view of final Arbitration Award No.1005/2016 titled HDB Financial Services Ltd. Versus Ajay Vir Singh & Anr. and in view of final Arbitration Award passed by Arbitrator in case No.HDBFSL/128/2016 titled HDB Financial Services Ltd. Versus Ajay Vir Singh & Anr. is decided accordingly. It is prima facie proved on record that Arbitrator namely Anis Ahmed Advocate Sole Arbitrator Ist Floor Old No.150 Pycrofts Road Opp. Registry Office Royapettah Chennai-600014 Tamil Nadu has passed final Arbitral Award No.1005/2016 on dated 15.06.2016 under Arbitration and Conciliation Act 1996 relating to matter in 4 M.A. No.319/2017 in C.C. No.06/2017 dispute and imposed five conditional order upon complainant and it is also proved on record that Arbitrator namely Anis Ahmed has also passed Final Arbitral award No.HDBFSL/128/2016 dated 17.10.2016 and imposed five conditional order upon complainant. It is proved on record that Arbitrator has passed final Award prior to institution of present consumer complaint against complainant. Present consumer complaint was instituted before State Commission on 20.03.2017. State Commission is of the opinion that question of conflict of final orders would arise under Arbitration and Conciliation Act 1996 and under Consumer Protection Act 1986 if proceedings of consumer complaint would continue. Hon'ble National Consumer Commission has held that consumer complaint cannot be decided by Consumer Fora after final Arbitration Award is already passed by Arbitration under Arbitration and Conciliation Act 1996.
See 2006(3) CPR 339 NC titled Installment Supply Ltd. Versus Kangra Ex. Serviceman Transport Company & others. It is held that order passed by Hon'ble National Consumer Commission is binding upon all the consumer Fora within entire country.
7. Submission of learned Advocate appearing on behalf of complainant that final Arbitration Award was passed by Arbitrator unilaterally without giving notice to the complainant and on this ground application filed by opposite 5 M.A. No.319/2017 in C.C. No.06/2017 parties be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that if the complainant is aggrieved against the final Arbitration Award then complainant should approach before the competent authority of law for setting aside the award under Arbitration and Conciliation Act 1996. It is held that final Award passed by Arbitrator under Arbitration and Conciliation Act 1996 could not be set aside by Consumer Fora under Consumer Protection Act 1986. Arbitration and Conciliation Act 1996 is a special Act and remedy is also provided under special Act. It is held that when there is conflict between general law and special law then special law always prevails.
8. Submission of learned Advocate appearing on behalf of complainant that remedy under Consumer Protection Act 1986 is additional remedy and on this ground application filed by opposite party be rejected is decided accordingly. State Commission is of the opinion that in order to avoid conflicting orders under Arbitration and Conciliation Act 1996 and under Consumer Protection Act 1986 it is not expedient in the ends of justice and on principle of natural justice to proceed with subsequent consumer complaint. It is well settled law that if parties approach both the forums created under Arbitration and Conciliation Act 1996 and 6 M.A. No.319/2017 in C.C. No.06/2017 under Consumer Protection Act 1986 qua same matter then Consumer Fora can refuse to proceed in order to avoid conflicting orders. See 2004 (1) SCC 305 Secretary Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (dead) through LRS. & others. In present consumer complaint State Commission refused to proceed in order to avoid conflicting orders under Arbitration and Conciliation Act 1996 and Consumer Protection Act 1986. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
9. In view of findings upon point No.1 above miscellaneous application number 319 of 2017 filed by opposite parties is allowed. State Commission refused to proceed with consumer complaint No.6 of 2017 in order to avoid conflicting orders under Arbitration and Conciliation Act 1996 and under Consumer Protection Act 1986. Final Arbitration Award No.1005/2016 dated 15.06.2016 and final Arbitration Award No.HDBFSL/128/2016 dated 17.10.2016 titled HDB Financial Services Ltd. Versus Ajay Vir Singh will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to 7 M.A. No.319/2017 in C.C. No.06/2017 parties forthwith free of costs strictly as per rules. Miscellaneous Application No.319 of 2017 is disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 13.07.2017.
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