State Consumer Disputes Redressal Commission
Bhagwani Parkar vs Dealer M/S Sonalika Tractors & Ors. on 16 January, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/792
Instituted on : 31.10.2017
Bhagwani Parkar, S/o Ramnath Parkar,
Aged 65 years, R/o : Village Belaudi,
Post : Bhedsar, Tehsil & Distirct Durg (C.G.) ...... Appellant (Complainant)
Vs.
1. Dealer M/s Sonalica Tractors,
Dhamdha Road, Karhidih, Durg,
Tehsil and District Durg (C.G.) ..... Respondent No.1 (O.P. No.1)
2. Manager,
M/s L & T Finance Limited,
First Floor, Office No.FF 08, Avinash House,
Maruti Business Park, G.E.Road, Raipur,
Tehsil and District Raipur (C.G.) ..... Respondent No.2 (O.P. No.2)
3. Manager,
Mm/s L & T Finance Limited,
8th Floor, C/25-26, E Block,
Bandra Kurla Complex, Bandra (East)
Mumbai 400051 ..... Respondent No.3 (O.P. No.3)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri T. Das and Shri Jeevan Kothle, Advocates for the appellant (complainant).
Shri Anurag Thaker, Advocate for the respondent No.1 (O.P. No.1).
Shri Rakesh Puri, Advocate for the respondent No.2 (O.P. No.2) and respondent
No.3 (O.P. No.3).
ORDER
DATED : 16/January/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 30th August, 2017 passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No. C.C./2016/1501. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
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2. Briefly stated the facts of the complaint of the complainant are that the complainant is an agriculturist and is resident of Village Belaudi, Tehsil and District Durg (C.G.). The son of the complainant namely Balram Parkar purchased Sonalica Tractor D.I. 35 Colour Blo 39 H.P. on 02.10.2014 from the O.P.No.1 at the cost of Rs.5,50,000/- with the financial help of the O.P. No.2 & 3. The deceased son of the complainant gave his old tractor to the O.P. No.1. The cost of the older tractor has been fixed at Rs.2,50,000/-. The rest of the amount was given to the O.P. NO.1 with the financial help of the O.P. No.2 & O.P. No.3. The O.P. No.2 & O.P. No.3 obtained signatures of the complainant and his son on several documents without explaining regarding the contents of the documents. The complainant and his son are illiterate persons and they can only put their signatures in the documents. When the complainant received letter dated 15.06.2015 from the L & T Finance Ltd., then he came to know that the complainant has been made guarantor of his son, but the complainant was not told by the O.P. No.2 & O.P. No.3 that his signatures were taken in the documents as guarantor for loan taken by his son. On 12.06.2015, the vehicle was taken by the driver and grand son of the complainant. At about 1.00 P.M. the vehicle was stopped by the employees of the O.P. No.2 & O.P. No.3 and they snatched the key of the tractor, left the trolley at Chikhli Chowk and they took away the tractor and took possession of the tractor without following the legal procedures. The documents were not given by the OPs to the complainant and they also did not adjust the amount of Rs.2,50,000/- paid by the son of the complainant . The O.P. No.2 & O.P. No.3 sent notice to the complainant to deposit a sum of Rs.5,25,446/- within 7 days. The intimation regarding death of the son of the complainant was given to the O.P. No.2 & O.P. No3 within 3 days even then the employees of the // 3 // O.P. No.2 & O.P. No.3 took away the tractor forcibly and thus committed deficiency in service. The complainant suffered financial loss and mental harassment, therefore, the complainant has filed instant complaint and prayed for granting reliefs as mentioned in relief clause of the complaint.
3. The O.P. No.1 filed its written statement and averred that the son of the complainant namely Balram Parkar purchased Sonalica Tractor at the cost of Rs.5,51,000/- from the O.P. No.1 and the old tractor was given by Late Balram Parkar. The price of the old tractor was fixed Rs.85,500/-. The price of the old tractor was fixed Rs.85,500/-. Rs.85,500/- was paid by the Finance Company to the O.P. No.1, in which Rs.81,000/- is included as down payment and Rs.4,500/- towards processing fees. The rest of the amount of Rs.4,50,000/- was financed by the O.P. No.2 & O.P. No.3 and the same was paid by the O.P. No.2 & O.P. No.3 to the O.P. No.1. Rs.20,000/- towards registration and necessary accessories was not paid by the complainant to the O.P. No.1. The cost of the old tractor was not fixed Rs.2,50,000/-. The cost of the old tractor is only Rs.85,500/-. The O.P. No.1 did not commit any deficiency in service. The complaint is liable to be dismissed.
4. The O.P. No.2 & O.P. No.3 filed their written in the form of affidavit and averred that the complainant suppressed material facts. The O.P. No.2 & O.P. No.3 referred the matter to the Arbitrator and award was passed by the Arbitrator. The complainant himself filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, Durg (C.G.), which is still pending, therefore, the complaint is not maintainable and is liable to be dismissed.
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5. The complainant has filed document. Annexure A-1 is registered envelope, Annexure A-2 is letter dated 15.06.2015 sent by L & T Finance to Mr. Balram Parkar and Mr. Bhagvani Parkar, Annexure A-3 is Vehicle Tax Receipt, Annexure A-4 is Registration details of vehicle bearing registration No.C.G.07AU9262, Annexure A-5 is vehicle particulars of vehicle registration No.C.G.07-D-2107, Annexure A-6 is Loan Agreement paper, Annexure 7 is Certificate, Annexure A-8 is Irrevocable Power of Attorney, Annexure A-9 is affidavit of Balram Parkar, Annexure A-10 is affidavit of Bhagvani Ram Parkar, Annexure A-11 is Letter of Guarantee, Annexure A-12 is letter dated 16.02.2016 sent by Shri Tribuwan Das, Advocate to Dr. F.R. Shaikh, Sole Arbitrator.
6. The O.P. No.1 has filed documents. Annexure NA-1/1 is Delivery challan, Annexure NA-1/2 is bill given to finance company, Annexure NA/1-3 is receipt regarding margin money paid to L & T Finance Ltd, Annexure NA/1-4 is delivery order by the Finance Co., Annexure NA-1/5 is R.C. book of old tractor, Annexure NA-1/6 is tractor sell receipt.
7. The O.P. No.2 & O.P. No.3 have filed documents. Annexure - NA-2(1) is Authority letter, Annexure NA-2-(2) is terms and conditions, Annexure NA-2(3) is letter dated 15.06.2015 sent by the L & T Finance Co. to Balram Parkar and Bhagwani Parkar, Annexure NA-2(3A) is postal receipt, Annexure A-2(4) is award dated 06.05.2016 passed by Sole Arbitrator, Annexure NA-2(5) is notice dated 26.07.2016 sent by District Judge, Durg to L & T Finance Limited, Annexure NA-2(6) is application under Section 34(2)(a)(i) and (iii) of the Arbitration and Conciliation Act, 1996, Annexure NA-2 (7) is Loan Cum Hypothecation // 5 // Agreement, Annexure NA-2(8) is letter dated 27.11.2015 sent by Ms. Disha Karambar to Balram Parkar (Borrower) and Bhagwani Parkar (Co-borrower).
8. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint by the impugned order.
9. Shri T. Das and Shri Jeevan Kothle, learned counsel appearing for the appellant (complainant) have argued that the complainant is an agriculturist and is resident of Village Belaudi, Post Bhedsar, Tehsil and District Durg (C.G.). The son of the complainant namely Balram Parkar purchased Sonalica Tractor D.I. 35 Colour Blo 39 H.P. on 02.10.2014 from the O.P.No.1 at the cost of Rs.5,50,000/- with the financial help of the O.P. No.2 & 3. The deceased son of the complainant gave his old tractor to the O.P. No.1. The cost of the older tractor has been fixed at Rs.2,50,000/-. The rest of the amount was given to the O.P. NO.1 with the financial help of the O.P. No.2 & O.P. No.3. The O.P. No.2 & O.P. No.3 obtained signatures of the complainant and his son on several documents without explaining regarding the contents of the documents. The complainant and his son are illiterate persons and they can only put their signatures in the documents. When the complainant received letter dated 15.06.2015 from the L & T Finance Ltd., then he came to know that the complainant has been made guarantor of his son, but the complainant was not told by the O.P. No.2 & O.P. No.3 that his signatures were taken in the documents as guarantor for loan taken by his son. On 12.06.2015, the vehicle was taken by the driver and grand son of the complainant. At about 1.00 P.M. the vehicle was stopped by the employees of the O.P. No.2 & O.P. No.3 and they snatched the key of the tractor, left the trolley at Chikhli Chowk and they took away the tractor and took possession of the // 6 // tractor without following the legal procedures. The documents were not given by the OPs to the complainant and they also did not adjust the amount of Rs.2,50,000/- paid by the son of the complainant . The O.P. No.2 & O.P. No.3 sent notice to the complainant to deposit a sum of Rs.5,25,446/- within 7 days. The intimation regarding death of the son of the complainant was given to the O.P. No.2 & O.P. No3 within 3 days even then the employees of the O.P. No.2 & O.P. No.3 took away the tractor forcibly and thus committed deficiency in service. The instant complaint was filed by the appellant (complainant) before the District Forum on 15.02.2016. The notice of the arbitration proceeding was not served to the appellant (complainant). The employee of the respondent No.2 (O.P. No.2) & respondent NO.3 (O.P. No.3) have illegally took possession of the tractor and did not follow the legal procedure. The appellant (complainant) filed an application under Section 34 of Arbitration and Conciliation Act, 1996 before the District Judge, Durg (C.G.). The appellant (complainant) is a guarantor. The appellant (complainant) is not co-borrower. Proceedings against the guarantor being a constitutional right, a person cannot be deprived of the same in the absence of any express or implied provision. In such cases, the guarantee could be enforced only through a court having appropriate jurisdiction. Therefore, the impugned order passed by the District Forum is erroneous and is liable to be set aside. They placed reliance on W.P. No.23670 of 2011 G. Palanisamy Vs. The Branch Manager, State Bank of India,decided by High Court of Judicature at Madras on 23.04.2012
10. Shri Anurag Thaker, learned counsel appearing for the respondent No.1 (O.P. No.1) has argud that the O.P. No. is dealer of Sonalica Tractor and the son of the appellant (complainant) purchased the Sonalica Tractor. The O.P. No.1 did // 7 // not commit any deficiency in service. The learned District Forum has rightly dismissed the complaint of the appellant (complainant). The appeal filed by the appellant (complainant) is liable to be dismissed.
11. Shri Rakesh Puri, learned counsel appearing for the respondent No.2 (O.P. No.2) and respondent No.3 (O.P. NO.3) has argued that the matter was referred to the Arbitrator, who passed the award on 06.05.2016 whereas the complainant filed the instant complaint on 15.02.2016. The matter was referred to the Arbitrator before filing the instant complaint and at the time of filing complaint, the Arbitrator had already passed the award. The appellant (complainant) himself filed an application under Section 34 (2)(a)(i) & (iii) of the Arbitration and Conciliation Act, 1996 before the District Judge, Durg (C.G), which is still pending. The O.P. No.2 & O.P. No.3 have never possessed the tractor forcibly with the help of musclemen. The impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission.
12. We have heard learned counsel appearing for the parties and have also perused the record of the District Forum as well as the impugned order.
13. The Document Annexure A-6 is Loan Cum Hypothecation Agreement in which signatures of the complainant and Balram Parkar are present. The name of the complainant is mentioned as co-borrower. Annexure A-7 is Declaration for signing in vernacular language in which signature of the complainant is present. It appears that the complainant is co-borrower and Balram Parkar is borrower. If it is presumed that the complainant is guarantor of Balram Parkar, even then under Section 128 of The Indian Contract Act, the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided // 8 // by the contract. In the instant case the name of the complainant is mentioned as co-borrower, therefore, his liability is similar to the liability of the main borrower.
14. Annexure NA-2(4) is copy of Award dated 06.05.2016 passed by Sole Arbitrator Shri F.R. Shaikh, Advocate in which in para 1 it is mentioned that the instant reference came to be initiated by the claimants invoking Arbitration Clause 12.1 r/w 12.5 of the Loan Cum Hypothecation Agreement dated 08.10.2014. In para 3 of the award, it is mentioned that " On the request letter dated 18th December, 2015 (Exhibit - 1) I accorded my consent on 18th January (Exhibit - 2) to act as the Sole Arbitrator and pursuant to the consent accorded by me, I issued direction by my letter dated 18th January, 2016 (Exhibit -3) to all the parties to appear before me and to file their Claim Statement/Defence Statement/Replies/Rejoinders, if any, within the period mentioned therein and fixed the hearing of the arbitration proceedings on 26th February, 2016 time 5.00 pm to 6.00 pm. I further directed the parties to appear before me either in person or through authorised representative / Advocate with Disclosure in accordance with Sec. 12(1)(b) of the Arbitration and Conciliation (Amendment) Ordinance, 2015. The copies of the said direction letter dated 18th January, 2016 along with the reference letter and my consent letter were sent to the Respondents by Registered Post /Speed Post by following one of the modes of the service, as envisaged under Section 3 of the Arbitration and Conciliation Act, 1996 at their correct and last known address as per the record of the Claimants (Exhibit - 3-A [Colly)
- Postal Receipts".
15. It appears that the notice was issued to the complaint. The matter was referred to Arbitrator on 18.12.2015 whereas the instant complaint has been filed // 9 // before the District Forum on 15.02.2016. It appears that the after referring the matter to the Arbitration, the complainant has filed the instant complaint.
16. In Chandresh Kumar Vs. Kotak Mahendra Bank Ltd. I (2017) CPJ 121 (NC), Hon'ble National Commission has observed thus :-
"6. ...... 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 Protect 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."
17. In Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd. and Another, 2017 (2) CPR 277 (NC), Hon'ble National Commission has observed thus :-
"10. ...................... Section 3 of the Consumer Protect Act, 1986 states that the provisions of Consumer Protection Act, 1986 shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, it is clear that the provisions of the Consumer Protection Act, 1986 cannot be used in derogation of The Arbitration and Reconciliation Act, 1996. Remedy under Consumer Protection Act, 1986 is an additional remedy if the main remedy under the concerned Act has not been taken. In the present case, it was made known to the petitioner / complainant that the remedy under the Arbitration and Reconciliation Act, 1996 was already taken up by OP-1 as per the provisions of the // 10 // Agreement, therefore, the proceedings under the Consumer Protection Act, 1986 could not have been taken as an alternative remedy................."
18. In T. Srinivas & Anr. Vs. Srija Constructions, I (2016) CPJ 552 (NC), Hon'ble National Commission has observed thus :-
"10. .... This Commission in Beverly Park Maintenance Services Ltd. v. Kashmir Fab Styles Pvt. Ltd., II (2014) CPJ 109 (NC) = Revision Petition No.2064 of 2012 decided on 13.3.2014 has observed :
"7. Now the core question is, whether two parallel proceedings for similar relief can be persuaded before two different forums. Learned Counsel for the respondent submitted that Section 3, Consumer Protection Act enables complainant to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned Counsel for the respondent because two proceedings for similar relief cannot run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad v. The New India Assurance Company Limited held that when a case is pending in a Court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action.
8. Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both the proceedings may go simultaneously . The words 'in addition' appearing in Section 3, C.P. Act enables complainant to file complaint before Consumer Fora also if not filed before other Forum."
19. In Magma Fincorp Limited Vs. Gulzar Ali, II (2016) CPJ 231 (NC), Hon'ble National Commission has observed thus :-
// 11 // "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 not 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."
20. In Beverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd. II (2014) CPJ 109 (NC), Hon'ble National Commission, has observed that "Once respondent participated in proceedings before arbitrator for same relief, proceedings for similar relief could not have been initiated before State Commission."
21. In the instant case, the O.P. No.2 & O.P. No.3 have filed copy of award dated 06.05.2016 passed by the Sole Arbitrator, copy of application filed by the complainant under Section 34(2)(a)(i) and (iii) of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 06.05.2016 before the District Judge, Durg. It appears that the complainant himself filed an application under Section 34(2)(a)(i)(iii) of the Arbitration and Conciliation Act, 1996 before the District Judge for setting aside the award passed by the Sole Arbitrator. The matter was already decided by the Sole Arbitrator and the award passed by the Sole Arbitrator was challenged by the complainant before the District Judge, Durg, therefore, simultaneously, the proceedings initiated under Section 12 of the Consumer Protection Act, 1986 is not maintainable before the District Forum. Therefore, the impugned order dated 30.08.2017 passed by learned District // 12 // Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission.
22. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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