National Consumer Disputes Redressal
Lalitkumar Dangi vs Kalpana P. Sanghavi & Anr. on 8 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2689 OF 2016 (Against the Order dated 13/07/2016 in Appeal No. 1408/2001 of the State Commission Maharashtra) 1. LALITKUMAR DANGI CHAIRMAN & MANAGING DIRECTOR DANGI, FINANCIAL & MANAGEMENT CONSULTANT (P) LTD.104 M.K. BHAVAN, 300 SHAHID BHAGATSINGH ROAD, FORT, MUMBAI-400001 MAHARASHTRA ...........Petitioner(s) Versus 1. KALPANA P. SANGHAVI & ANR. 416/B, BHAVANI MANDAP KOLHAPUR-416012 MAHARAHSTRA 2. M/S. BHUPALI SECURITIES OPP. TIP TOP RESTAURANT, 105-106-A, RAHEJA COMPLEX, CHECK NAKA THANE (W) MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr.Anand Patwardhan, Advocate For the Respondent : For the Respondent No.1: NEMO/Ex-parte
(vide order dated 22.03.2018)
For the Respondent No.2: Mr. Nikhilesh Kumar, Advocate
Dated : 08 May 2018 ORDER
This revision petition has been filed by the petitioner Lalitkumar Dangi against the order dated 13.07.2016 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in First Appeal No.A01/1408, wherein the appeal filed by the petitioner against the order dated 17.07.2001 passed by the District Consumer Disputes Redressal Forum, (in short 'the District Forum') in CC No.515/2000 was dismissed.
2. Brief facts of the case are that the respondent No.1/complainant filed a complaint before the District Forum alleging that the opposite parties were deficient in not providing the shares purchased by her for quite some time and later on money was returned back to the complainant. The complainant had prayed that the money would have grown to the current price of the shares and therefore the corresponding money should be awarded. The complaint was resisted by the opposite parties by filing the written statement. However, the District Forum allowed the complaint vide its order dated 17.07.2001 as under:-
"Order O.P. 1 is directed to pay Rs.45,619/- with interest @18 p.a. from 2-11-98 till realisation.
O.P. 1 is also directed to pay Rs.5,000/- for physical and mental torture and Rs.1000/- as a cost of this application.
Execution of orders should be done in one month.
Complainant is directed to send certified copies of this order of judgement by R.P.A.D. to opponents."
3. The petitioner preferred appeal No.A/01/1408 before the State Commission and the same has been dismissed by the State Commission, vide its order dated 13.07.2016.
4. Hence the present revision petition.
5. The matter was listed on 22.3.2018 for final hearing at admission stage. The learned counsel for the petitioner and learned counsel for respondent No.2 were present. However, none was present on behalf of respondent No.1 though learned counsel for respondent No.1 was present on 30.10.2017 and had filed his vakalatnama and last appeared on 30.10.2017. Accordingly, she was proceeded ex-parte vide order dated 22.3.2018.
6. Learned counsel for the petitioner stated that the complainant had filed an arbitration proceeding earlier before filing the complaint. In the arbitration award the claim filed by the complainant was rejected vide order dated 25.04.2000 of the Arbitrator. It was further stated that the matter was settled between the parties. Learned counsel argued that the claim was barred by res judicata as the matter was decided by the Arbitrator. Though the arbitration has been dismissed mainly on the ground of limitation, however, the Arbitrator has recorded that the matter was settled between the parties and the State Commission has clearly stated that the mutually agreed amount was already paid on 07.11.1998. First of all the matter was settled between the parties, there can be no question for filing any complaint against the petitioner. Moreover, ones the remedy of arbitration was availed, the remedy under Consumer Protection Act 1986 cannot be availed as the award of arbitration will operate as res judicata. This plea was taken before the fora below. However, the same has not been accepted. This is a legal point that can be raised at any stage again. Though Section 3 of the Consumer Protection Act 1986 provides for an alternate remedy, but this does not mean that a consumer can pursue two remedies side by side or one after the other.
7. It was argued by the learned counsel for the petitioner that even the award passed by the District Forum or by the State Commission has been already liquidated by the respondent No.2 herein. Respondent No.2 has already paid the amount in the execution proceedings. Hence, no further payment is required to be paid by petitioner/opposite party No.1 and therefore, the revision petition deserves to be allowed. It was further pointed out by the learned counsel that three similar complaints were filed and by the common order the State Commission has allowed Appeal No. A/01/1406 filed by the petitioner and the appeal bearing No.A/01/1407 was disposed of as settled between the parties, however, in the third appeal No.A/01/1408 filed by the petitioner, even though the matter was already settled and the settlement amount was paid to the complainant and the same was recorded by the Arbitrator in the arbitration order dated 25.04.2000, the State Commission has dismissed this appeal, however the justification for dismissing the appeal is not clear. There is no justification for dismissal of the appeal in a similar case.
8. Learned counsel for the respondent No.2 stated that the order of the District Forum has already been complied by the respondent No.2 though there was no order in respect of respondent No.2 to clear liability fixed upon opposite party No.1 by the District Forum. Learned counsel was unable to clarify as to why inspite of no order of the District Forum, the same has been complied by the respondent No.2 herein.
9. I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record. Here the basic question is to be considered whether the complainant was entitled to file the consumer complaint when the matter was already litigated under the Arbitration Act. It is true that Section 3 of the Consumer Protection Act, 1986 can provides for alternative remedy, but a person cannot pursue two remedies finally one after the other because the first order shall operate as res judicata for filing of the second redressal application. In the present case, the arbitration award was passed on 25.04.2000 and the claim of the complainant was rejected. In this regard this Commission has passed the following order in Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd., RP 2030-2031 OF 2016, decided on 20.3.2017 (NC). It has been held that:-
"10. It is not clear whether any rejoinder was filed by the complainant after the written statement was filed by OP-1. We find that no rejoinder is available on the case file before us. One thing is clear that after filing of the written statement of the OP-1, the complainant must have come to know that there is some arbitration proceedings going on against him. Even then, if he chose not to participate in that proceedings, his absence or non-participation in the arbitration proceedings was wilful and not due to lack of knowledge of such proceedings. The State Commission has clearly stated that the arbitration award was passed on 14.7.2014 and the order of the District Forum was passed on 4.2.2015. Therefore, the order of the District Forum has been set aside by the State Commission. Section 3 of the Consumer Protection 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 Agreement, therefore the proceedings under the Consumer Protection Act, 1986 could not have been taken as an alternative remedy............................"
11. Based on the above discussion, we find no illegality, material irregularity or jurisdictional error in the order dated 21.3.2016 passed by the State Commission which calls for any interference from this Commission. Accordingly, the revision petitions No. 2030-2031 of 2016 are dismissed in limine.
10. From the above judgment, it is clear that this Commission has taken a view that if the parties have gone into arbitration and the arbitration award has been passed, the doors of the consumer forum are not open for the same relief. Clearly in the present case, arbitration order has been passed on 25.04.2000 and the claim of the complainant was rejected on the ground of limitation, though the State Commission has also observed that the amount agreed and settled between the parties has already been paid to the complainant by the petitioner, I find no reason that the District Forum should have accepted the complaint. In this regard, both the fora below have not considered this legal issue in respect of Section 3 of the Consumer Protection Act, 1986. Accordingly, the RP No.2689 of 2016 is allowed and order dated 13.07.2016 of the State Commission as well as order dated 17.07.2001 of the District Forum are set aside.
...................... PREM NARAIN PRESIDING MEMBER