State Consumer Disputes Redressal Commission
The Manager, M/S. Indusind Bank Ltd. vs Sandeep Dawn on 11 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/155/2016 ( Date of Filing : 22 Aug 2016 ) (Arisen out of Order Dated 25/07/2016 in Case No. cc/31/2016 of District Nadia) 1. The Manager, M/s. Indusind Bank Ltd. G.P. Auto Centre, 6, Tagore Road, P.O. - Krishnanagar, P.S. - Kotwali, Dist. Nadia, Pin - 741 101. 2. The Manager, M/s. Indusind Bank Ltd. 41, Shakespear Sarani, Flat no. 2D, 2nd Floor, Duck Back House, Kolkata - 700 017, W.B. ...........Appellant(s) Versus 1. Sandeep Dawn S/o Sri Chitra Ranjan Dawn, Vill. & P.O. - Majdia(Rail Bridge More), P.S. - Krishanganj, Dist. Nadia, Pin - 741 507. 2. Smt. Mousumi Dawn W/o Sri Sandeep Dawn, Vill. & P.O. - Majdia(Rail Bridge More), P.S. - Krishanganj, Dist. Nadia, Pin - 741 507. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Petitioner: Mr. Sayak Ranjan Ganguly , Advocate For the Respondent: Mr. Patanjal Lahiri., Advocate Dated : 11 Jun 2018 Final Order / Judgement Sri Shyamal Gupta, Member
The maintainability petition put forth by the Revisionists since been rejected by the Ld. District Forum, Nadia, aggrieved by such decision, this Revision is filed u/s 17(1)(b) of the Consumer Protection Act, 1986.
Case of the Revisionists, in short, is that, after failing to pay the loan amount, the Respondents surrendered the hypothecated vehicle to the Revisionists. After selling the subject vehicle, an amount of Rs. 1,05,000/- could be fetched which was not sufficient to square off the outstanding due stood in the names of the Revisionists. In order to realize the said outstanding due, the Revisionists initiated an arbitration proceedings against the Respondents whereof the Ld. Advocate directed the Respondents to pay a sum of Rs. 1,43,339/- with further interest. In view of this, according to the Revisionists, the instant complaint case was not maintainable.
Heard both sides and perused the documents on record.
Admittedly, the Revisionists received notice of the arbitration proceedings. In this regard, it is stated by them that on receipt of notice of the said proceedings, they expressed their inability to rush to Chennai to participate in the said proceedings owing to their precarious medical condition and accordingly, request was made to shift the arbitration proceedings either to Kolkata or in Krishnanagar to facilitate their active participation, but the Respondents did not get any response to such prayer and ex parte award passed.
Be that as it may, fact remains that the Revisionists do have branch offices both in Nadia and Kolkata districts and therefore, if they had the due wherewithal, initiating necessary arbitration proceedings in any of these districts, apparently, would not pose any problem to them.
In the interest of natural justice, it is always desirable that all concerned parties do get adequate opportunity to represent their case. Unfortunately, thanks to utmost rigidity on the part of the Revisionists, the Respondents were robbed of their inherent right to defend their case before the Ld. Arbitrator.
It is noteworthy here that, Chapter V Conduct of arbitral proceedings of the Arbitration & Conciliation Act, 1996 runs as under:
"18. Equal treatment of parties - The parties shall be, treated with equality and each party shall be given a full opportunity to present his case".
It shows that though Arbitrator is not bound by technical rules of procedure, he cannot ignore basic principles of natural justice.
In this connection, it may not be out of place to mention here that Article 25 of the UNCITRAL Model Law is incorporated in Section 25. In Russell on Arbitration, 20th Edition at page 263, it is stated as follows:
" In general, an arbitrator is not justified in proceeding ex parte without giving the party absenting himself due notice.
It is advisable to give the notice in writing to each of the parties of their solicitors. It should express the arbitrator's intention clearly, otherwise the award may be set aside."
This principle was adopted by Hon'ble Calcutta High Court in Juggilal Kamlapat v. General Fibre Dealers Ltd. AIR 1955 Calcutta 354(DB), wherein the Hon'ble Court has been pleased to held that if a party fails to attend the arbitration hearing on the due date and time, the arbitrator is at liberty to proceed ex parte, though it is advisable, but not compulsory, that he should give that party notice of his intention to proceed ex parte.
In Halsbury's Laws of England, Fourth Edition, Vol. 2 Page 590, page 306 it has been stated as under:
"Where the arbitrator proposes to proceed with the reference notwithstanding the absence if one of the parties, it is advisable that he should give that party distinct notice of his intention to do so. If reasonable excuse for not attending the Kvm ARBP304.14 appointment can be shown, the court will set aside an award made by an arbitrator who has proceeded ex parte."
In Russell on Arbitration, Nineteenth Edition, page 271 the following passage appears.
" Notice of intention to proceed ex parte- In general, the arbitrator is not justified in proceeding ex parte, without giving the party absenting himself, due notice. It is advisable to give the notice in writing to each of the parties or their solicitors. It should express the arbitrator's intention clearly, otherwise the award may be set aside. An ordinary appointment for a meeting with the addition of the word" "Peremptory" marked on it is, however, sufficient.
If the arbitrator declines to proceed on the first failure to attend a peremptory appointment, and gives another appointment, he is not authorised to proceed ex-parte at the second meeting, unless the appointment for it was also marked "peremptory" or contained a similar intimation of his intention."
It is important to keep in mind that, the Arbitrator would in law neglect his duty if he does not listen to one party who might be interested either in controverting or who is legally entitled to controvert the claim of the party approaching them. Similarly, the person who is to be affected by the evidence ought to be present to hear it so that he would be able to meet and answer it. The arbitrator is ordinarily free from the fetters of procedural law but that does not make him free from the fundamental principles of justice. Though the arbitrator may not strictly follow the rules and procedures as observed by the civil court but at the same time it would not imply that the arbitrary tribunal can ignore or circumvent the principles of natural justice and fair procedure. The omission in giving notice to a party before proceeding ex- party is a serious irregularity in the procedure and amounts to misconduct. It is a salutary principle of natural justice that nobody should be condemned unheard.
The Revisionists have not adduced any documentary proof to show that the Respondents were duly cautioned of the possibility of proceeding ex parte by the Ld. Arbitrator. It appears from the procedural history, as noted by the Ld. Arbitrator that, the Ld. Arbitrator merely passed orders for issuance of notice upon the Respondents. That apart, as noted above, the Respondents did not find the place of arbitration suitable because of their medical condition. There was no hindrance to relocate the venue of arbitration from Chennai to Kolkata/Nadia. No doubt, utter disinclination on the part of the Revisionists caused prejudice to the Respondents. It was against the principles of natural justice.
Therefore, by rejecting the maintainability petition, in our considered view, the Ld. District Forum committed no infirmity in law. In this regard, it may not be out of place to mention here that mere stipulation of arbitration clause is no bar to adjudicate a complaint case. Some of the relevant decisions in this regard are appended below.
In Skypay Couriers Limited v. Tata Chemicals Limited, (2000) 5 SCC 294 the Hon'ble Court observed:
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."
In Trans Mediterranean Airways v. Universal Exports, (2011) 10 SCC 316 it was observed:
"In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy."
In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi, AIR 1997 SC 533, the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
Accordingly, we find no merit in the present Revision. The same stands dismissed accordingly. The impugned order is hereby affirmed. No order as to costs. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER