National Consumer Disputes Redressal
Chandresh Kumar vs Kotak Mahindra Bank Ltd. on 29 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 242 OF 2011 (Against the Order dated 25/11/2010 in Appeal No. 68/2009 of the State Commission Delhi) 1. CHANDRESH KUMAR R/o. S-111, H. No. 138, Sharan Park Extn., Bakkarwala Road, Mundka Delhi ...........Petitioner(s) Versus 1. KOTAK MAHINDRA BANK LTD. U.G.F.-1-11, Upper Ground Floor, 14, K.G. Marg New Delhi ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Rahul Sharma, Advocate For the Respondent : Mr. P.K. Seth, Advocate Dated : 29 Feb 2016 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER The complainant / petitioner purchased a truck on 04.6.2004 for a consideration of Rs.9,55,000/-, taking a loan of Rs.8,10,000/- from the respondent bank. The said loan was to be repaid in 35 monthly instalments of Rs.31,000/- each commencing from 10.7.2004. Blank signed cheques were also taken by the respondent from the petitioner/complainant at the time of sanctioning the loan. The case of the complainant / petitioner is that since he was not in a position to pay the instalment due in January, 2005, he requested the bank not to present the cheque towards payment of the said instalment to his bank but the said request was not acceded to, as a result of which the cheque was dishonoured. This is also the case of the petitioner / complainant that on 07.2.2005, the respondent bank repossessed the vehicle without giving any prior information to him. He therefore, approached the concerned District Forum with a complaint, seeking payment of compensation to the extent of Rs.10,00,000/-, along with interest etc.
2. The complaint was resisted by the respondent bank. It was in his reply that the petitioner / complainant was not regular in payment of the instalments, despite several notices sent to him and therefore, the vehicle was peacefully repossessed as per the terms of the agreement between the parties. It was further stated in the reply that a Civil Suit, claiming identical relief had been dismissed by the Civil Court, directing the parties to refer their dispute to arbitration and therefore a complaint on the same allegations was not maintainable. According to the respondent, the petitioner / complainant failed to discharge his financial obligations, despite issue of two notices to him.
3. The District Forum vide its order dated 12.12.2008 directed the respondent to pay a sum of Rs.9,55,000/- to the complainant towards the price of the truck, along with compensation quantified at Rs.2,00,000/- and cost of litigation quantified at Rs.10,000/-.
4. Being aggrieved from the order passed by the District Forum, the respondent bank approached the concerned State Commission by way of an appeal. Vide impugned order dated 25.11.2010, the State Commission allowed the appeal filed by the bank and consequently dismissed the complaint. Being aggrieved the complainant is before this Commission by way of this revision petition.
5. The first question which arises for our consideration in this petition is as to whether the consumer complaint was barred in view of the order passed by the Civil Court referring the parties to arbitration. A perusal of the judgement of the Civil Court dated 16.4.2005 would show that after repossession of the vehicle by the respondent bank, the petitioner / complainant had filed a civil suit, seeking an injunction restraining the respondent bank from selling / transferring / disposing off the vehicle and also for a direction to it to receive the due instalments and hand over physical possession of the vehicle to him. In response to the aforesaid suit, the respondent bank filed an application under Section 8 of the Arbitration and Conciliation Act, 1996. It was inter-alia stated in the said application that the vehicle repossessed by it on 05.2.2005, on account of default committed by the petitioner / complainant had been sold on 15.3.2005. The Civil Court noticing the arbitration clause contained in the agreement between the parties, referred them to arbitration and the suit stood disposed of accordingly.
6. It is evident from a perusal of the judgment of Civil Court dated 16.4.2005 that in the aforesaid suit, the petitioner / complainant had assailed the action of the respondent bank in repossessing the vehicle on account of the default alleged to have been committed by the petitioner / complainant in timely payment of the loan taken from the bank. One of the reliefs sought by the petitioner / complainant was a mandatory injunction to the respondent bank to receive the instalment and deliver the possession of the vehicle to the petitioner / complainant. The respondent bank brought it to the notice of the Civil Court that the vehicle had already been sold by it on 15.3.2005 and there was an arbitration clause, which provided for settlement of all disputes and claims, arising out of or in connection with the agreement between the parties or the performance of the said agreement, by arbitration. The Civil Court referred the parties to arbitration for resolving the disputes between them. The said disputes obviously, related to the repossession of the vehicle by the respondent bank. Had the petitioner / complainant availed the mechanism of arbitration in terms of the order of the Civil Court dated 16.4.2005, the Arbitrator would necessarily have gone into the legality on otherwise of the repossession of the vehicle by the bank. Despite the vehicle having been sold by the bank in the meanwhile, the petitioner / claimant could certainly have filed a claim seeking appropriate compensation from the respondent bank on account of the alleged unlawful repossession of the vehicle. Had the Arbitrator been satisfied of the correctness of which a claim, he would have awarded appropriate damages to the petitioner / complainant. However, despite having invoked the jurisdiction of the Civil Court and the said Court having referred the parties to arbitration, the petitioner / complainant, instead of filing a claim before the Arbitrator, chose to file a consumer complaint, before the District Forum. The said complaint came to be filed on 20.5.2005, after the Civil Court had already been disposed of the suit, filed before it, by referring the parties to the arbitration. In our opinion, the complainant / petitioner having invoked the jurisdiction of the Civil Court and having not challenged the order of the said Court referring the parties to arbitration, he could not have filed a consumer complaint, challenging the legality of the repossession of the vehicle by the bank. Though, the remedy provided to a consumer under the provisions of the Consumer Protection Act, 1986 is an additional remedy, the complainant / petitioner having himself chosen to approach the Civil Court instead of filing a consumer complaint in the first instance, he could not have filed a consumer complaint after the Civil Court had referred the parties to arbitration in accordance with the arbitration clause contained in the agreement between them. The consumer complaint, therefore, was clearly not maintainable, in the aforesaid facts and circumstances.
7. For the reasons stated hereinabove, we are not inclined to interfere with the order passed by the State Commission. The revision petition is accordingly dismissed. We however, make it clear that the dismissal of the complaint will not come in the way of the petitioner / complainant pursuing his claim before the Arbitrator, in accordance with law. If such a claim is preferred, it shall be open to respondent bank to take all such pleas, as are open to it in law.
The revision petition stands disposed of accordingly.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER