State Consumer Disputes Redressal Commission
Rajaram Chandravanshi vs Branch Manager, Tata Motors Finance Co. ... on 5 June, 2024
Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024
Branch Manager, Tata Motors Finance Co. Ltd.
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 09/11/2023
Date of Final Hearing: 10/05/2024
Date of Pronouncement: 05/06/2024
APPEAL No.- FA/23/260
IN THE MATTER OF :
Rajaram Chandravanshi, S/o. Shri Keshav Prasad Chandravanshi,
R/o. Vill. Ramhepur Khurd, P.O. Raweli, P.S. Bodla, Tah. Kawardha,
Dist. KABIRDHAM (C.G.) ... Appellant
Through: Shri R.K. Bhawnani, Advocate
Vs.
Branch Manager, Tata Motors Finance Co. Ltd.,
Add.: Pachpedinaka, Pujari Chamber, Raipur,
Tah. &Dist. RAIPUR(C.G.) ... Respondent
Through: Shri Saurabh Shukla, Advocate
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER
PRESENT: -
Shri Manu Sharma, Advocate for the appellant.
Shri Shaurabh Shukla, Advocate for the respondent.
ORDER
PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This appeal, filed under Section 41 of the Consumer Protection Act 2019 (hereinafter called "the Act" for short) is directed against order dated 24.08.2023 passed by District Consumer Disputes Redressal Commission, Kabirdham (hereinafter called "District Commission" for short) in complaint case No.CC/2022/22 whereby the complaint filed by the appellant herein was dismissed being not maintainable since the arbitration proceedings under the Arbitration and Conciliation Act 1996 had already been completed and final award had been passed, thereafter the opposite party/respondent received Rs.5,43,820/- from the complainant/appellant on 05.02.2019.
2. The brief background of the case is that the complainant/ appellant in the year January 2016 purchased a truck with the help of finance of Rs.26,27,000/- provided by the opposite party / respondent which was to Dismissed Page 1 of 7 Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024 Branch Manager, Tata Motors Finance Co. Ltd.
be repaid in 55 equal installments of Rs.68,000/-. As per case of the complainant/ appellant 50 installments i.e. approx. total amount of Rs.28,00,000/- were paid by him and only Rs.6,00,000/- remained to be paid but due to the corona pandemic situation, the transport business remained stalled, which worsened his financial condition. As per the allegation leveled by the complainant/ appellant the said truck was stolen by the financier on 27.02.2022 written report of which was given to the P.S. Kawardha. Regarding arbitration proceedings it was averred that intimation of such proceeding was never received by him and after passing of such award dated 05.02.2019the opposite party / respondent received an amount of Rs.5,43,820/- from the complainant/ appellant. It was averred that the opposite party / respondent was required to get the arbitral award executed from the competent authority but they stolen the vehicle due to which the complainant/ appellant had to suffer mental agony and financial loss.
3. Whereas the opposite party / respondentin its written version denied the allegations levelled against them and has mainly challenged the jurisdiction of the District Commission on the ground that after passing of final arbitral award in the dispute involved between the parties a Consumer Complaint with regard to the same dispute is not tenable. It was further averred that in pursuance of the interim award dated 05.02.2019 in the Arbitral Proceedings, the financed vehicle was duly repossessed on 26.02.2022. It was specifically contended that as the vehicle was duly sold in auction process and the received amount was adjusted in the finance account. Even after such adjustment the opposite party / respondent is entitled to get the outstanding amount as per the arbitral award. It was prayed that the opposite party / respondent has not Dismissed Page 2 of 7 Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024 Branch Manager, Tata Motors Finance Co. Ltd.
committed any unfair trade practice or deficiency in service hence the complaint be dismissed.
4. Final arguments heard and record as well as the impugned order perused. We have also gone through the written arguments submitted by both parties and the citations relied by them.
5. It is an admitted position in this case that invoking the arbitration clause available in the loan agreement the dispute was referred to Arbitral Tribunal of Sole Arbitrator vide reference letter dated 24.10.2018 and Arbitration Proceedings No.CH-4/TMFL/WEST/ARB/332/2018 was initiated in which final arbitral award was passed on 05.02.2019. The complainant/ appellant himself in paragraph No.12 of the complaint has stated that after final arbitral awardhe paid Rs.5,43,820/- to the opposite party / respondent. The consumer complaint was filed before the District Commission on 16.06.2022. In this situation core issue involved in this appeal is regarding jurisdiction of Consumer Commission to entertain a consumer complaint after passing final award passed in an arbitral proceedings. Learned District Commission has also dismissed the complaint solely on the ground of jurisdiction.
6. In this regard the settled principle by the Hon‟ble National Commission in Jitendra Kumar Dev (Since Dead) Through LRs. Vs. Mangma Finance Corporation Ltd. &Anr., II (2014) CPJ 576 (NC) is that when an award in the arbitration proceedings had already been passed, before filing of the consumer complaint, under these circumstances, the consumer complaint filed against the financer is not maintainable. The finding of the Hon‟ble National Commission in paragraph No.10 and 11 of the above judgement is under : -
"10. It is apparent from the record, that District Forum had not passed any adverse order against respondent No. 1. Thus, there was no need for respondent No. 1 to file an appeal. Be that as it Dismissed Page 3 of 7 Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024 Branch Manager, Tata Motors Finance Co. Ltd.
may, in this revision, petitioners themselves have placed on record the certified copy of the Arbitrator's Award. As per this Award, the arbitration proceedings were initiated in the year 2008, that is, much before the filing of the consumer complaint before the District Forum, as it was filed only in October, 2009. Moreover, the award had been passed on 29.1.2009, which admittedly was also before filing of the consumer complaint. Surprisingly, the complainant for reasons best known to him did not mention these relevant facts about the arbitration proceedings and passing of the award by the Arbitrator, in its complaint. Even otherwise also, complainant did not challenge the Arbitrator's award. Instead, he filed the Consumer Complaint before the District Forum. When an award in the arbitration proceedings had already been passed, before the filing of the Consumer Complaint, under these circumstances, the consumer complaint filed against respondent No. 1, is not maintainable at all.
11. Hence, there is no merit in this revision petition since, complainant had already availed an equally efficacious remedy available to him. The present petition is nothing but gross abuse of the process of law. Therefore, this revision stand dismissed with cost of Rs.5,000 (Rupees five thousand only)."
In this regard learned counsel for the complainant/ appellant has relied upon judgement of Hon‟ble National Commission in Mir Alam Vs. Magma Finance Corporation, III(2021) CPJ 279 (NC), in which in paragraph Nos.8 & 9 Hon‟ble National Commission has held as under : -
8. We have considered the arguments of the counsel for the parties and examined the record. It is admitted that the opposite party had financed Rs.18,14,477/- to the complainant for purchasing the truck, which was hypothecated with the opposite party, on execution of the loan agreement dated 31.12.2014. Loan agreement contains an arbitration clause. According to the opposite party, he referred the dispute to the Arbitrator relating to realisation of his dues when the complainant had committed defaults in payment of the installments in spite of the service of the demand notices. The opposite party did not appear before the Arbitrator also as such the Arbitrator passed ex-parte award dated 28.04.2016. The opposite party repossessed the truck in execution of Arbitrator's award dated 24.04.2016, on 10.09.2017 and sold it to a third party on 24.10.2017, when the complainant did not turn up for purchasing the truck in spite of service of pre-sale notice dated 21.09.2017 upon him. The Arbitrator's award is final under Section 35 of the Arbitration and Conciliation Act, 1996.
9. The authorities under Consumer Protection Act, 1986 do not exercise supervisor or appellate powers over the Arbitrator's award. The complaint before District Consumer Forum was not maintainable. The remedy of the complainant was to file an application for setting aside ex-parte Arbitrator's award under Section 34 of the Arbitration and Conciliation Act, 1996 or to file an appeal against it. The order of State Commission does not suffer from any illegality. The revision has no merit. The Supreme Court in National Seeds Corporation Limited V. M. Madhusudhan Reddy & anr. (2012) 2 SCC 506 (paragraph 66) Dismissed Page 4 of 7 Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024 Branch Manager, Tata Motors Finance Co. Ltd.
has held that if the grower opts for remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act. This judgment has been followed by this Commission in the cases relied upon by the counsel for the respondent."
Looking to the above situation, in the facts and circumstances of the case we do not find any error in the conclusion arrived at by the District Commission that it has no jurisdiction to entertain the complaint looking to the fact that it was filed after completion of arbitral proceedings i.e. after passing of the final arbitral award. It is also pertinent to mention here that the said arbitral award has attained its finality as no appeal has been filed challenging the said award. Therefore, we do not find any reason to interfere with the impugned order.
7. Learned counsel for the appellant has placed reliance upon judgement on Hon‟ble Apex Court in Manager, ICICI Bank Ltd. Vs. Prakash Kaur &Ors., Appeal (crl.) 267 of 2007 decided on 26.02.2007, (2007) 2 SCC 711; Citicorp Maruti Finance Limited Vs. S. Vijay Laxmi, 2011 (IV) CPJ 67 SC and judgement of Hon‟ble National Commission in R.P. No.2839/2017 Upendra Kumar Singh Vs. Shriram Equipment Finance Co. Ltd., order dated 24.04.2019 and argued that illegally and without following the procedures the financed vehicle was stolen and in such situation the Consumer Commission is having jurisdiction to adjudicate the dispute with regard to allegation of unfair trade practice and deficiency in service, but the learned District Commission has erred in passing the impugned order overlooking the facts and documents available on record.
8. We have gone through the judgments cited by learned counsel for the appellant/ complainant but in the facts of the present case there appears no illegal action on the part of the opposite party / respondent. The arbitration proceeding was initiated vide reference dated 24.10.2018 Dismissed Page 5 of 7 Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024 Branch Manager, Tata Motors Finance Co. Ltd.
and final award was passed on 05.02.2019. The complainant / appellant himself has brought on record copy of pre-sell notice dated 07.03.2022 as Exhibit C-07 in which it is mentioned that in pursuance to the interim order passed by the Sole Arbitrator the vehicle was repossessed. It was brought to the notice of the complainant/ appellant that within three days from the receipt of the notice Rs.14,64,980/- be deposited failing which the opposite party / respondent will be constrained to sell the said vehicle. The said notice was replied by the complainant/ appellant through advocate vide reply dated 04.04.2022 Exhibit C-08.
9. Thereafter another notice dated 28.03.2022 was sent as final notice. That notice was also replied by the complainant/ appellant vide Exhibit C-11. Thereafter the vehicle was auctioned and sold on 24.03.2022 for Rs.7,09,394.95, as mentioned in the written version and that amount was adjusted in the finance account, which is also evident from the statement of account, Exhibit-NA-5 (colly.), in which (at page No.86 of the record of the District Commission) on 24.03.2022 an amount of Rs.6,80,051/- is shown as collected vide „old vehicles- Income‟. It appears that after adjustment of above amount still there was huge outstanding balance in the finance account as mentioned in paragraph No.16 of the written version of the opposite party / respondent, which is evident from the fact that vide notice dated 07.03.2022 an amount of Rs.14,64,980/- was asked, i.e. the amount as per final arbitral award, to be deposited whereas the vehicle was sold only for Rs.7,09,394.95.
10. The above entire episode of events does not indicate any illegality on the part of the opposite party / respondent in fact the vehicle was repossessed pursuant to the interim arbitral award and notices were issued pursuant to the final arbitral award, hence the facts being different the citations relied by the complainant/ appellant is of no help to Dismissed Page 6 of 7 Appeal Nos.: Rajaram Chandravanshi Date of Pronouncement:
FA/23/260 Vs. 05/06/2024 Branch Manager, Tata Motors Finance Co. Ltd.
himsince no illegality or inappropriate action,attributable as unfair trade practice or deficiency in service, on the part of the opposite party/ respondent has been proved.
11. Therefore, with the foregoing discussion, we are of the considered view that this appeal has no substance to be allowed hence the same is dismissed. The impugned order is affirmed. No order as to cost of this appeal.
(Justice GautamChourdiya) (Pramod Kumar Varma)
President Member
/06/2024 /06/2024
Pronounced on: 05th June 2024
Dismissed Page 7 of 7