State Consumer Disputes Redressal Commission
Branch Manager Hdfc Bank Ltd. vs Chandra Shekhar on 3 October, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/567
Instituted on : 04.07.2018
Branch Manager,
H.D.F.C. Bank Limited, Through : Branch Manager,
Near Sai Mandir, Devendra Nagar,
Raipur (C.G.)
Branch Office - Dhimrapur, Raigarh (C.G.). .... Appellant (O.P.)
Vs.
Chandra Shekhar, Aged 60 years,
S/o Bali Singh Singh Sidar, Caste Gond,
Profession : Agriculture,
R/o : Village - Panjhar,
Tahsil and District Raigarh (C.G.) .... Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri S. Mandal, Advocate for the appellant (O.P.).
Shri Manoj Kumar Jayaswal, Advocate for the respondent (complainant).
ORDER
DATED : 03/OCTOBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 27.04.2018, passed by District Consumer Disputes Redressal Forum, Raigarh (C.G.) (henceforth "District Forum") in Complaint Case No.91/2017. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed the O.P. as under :-
(a) The O.P. will pay a sum of Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand) to the complainant and will provide R.C. Book of the vehicle to the complainant within one month.
// 2 //
(b) The O.P. will pay a sum of Rs.30,000/- (Rupees Thirty Thousand) towards compensation for mental agony and Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation, to the complainant within one month.
(c) The O.P. will comply the order within one month, otherwise interest @ 9% p.a. will be payable on the decretal amount from the date of filing of the complaint i.e. 18.08.2017 till realization.
2. Briefly stated, the facts of the complaint of the complainant are, that in the month of March, 2014, the complainant had obtained loan of Rs.5,00,000/- from the O.P. under agreement No.8115511 for purchasing tractor. At the time of providing loan, the O.P. asked the complainant that for security of the land, to obtain cheques for his account and provide the bunch of cheques to the O.P. The O.P. assured the complainant that the same will not be misused. On believing the version of the O.P. , the complainant provided a bunch of cheques out of which in 5-6 blank cheques, the O.P. Bank obtained signatures of the complainant and the O.P. assured that the same would not be misused, but for the security of the loan, it is taken by the Bank Management. Out of loan of Rs.5,00,000/-, the complainant had paid a sum of Rs.3,50,000/- to the O.P., out of which for payment of amount of Rs.63,000/-, the O.P. has not provided the receipt to the complainant. The complainant several times demanded the receipt for the same, but the O.P. did not provide the receipt. In the month of September, 2015, the complainant had gone out of station for his personal work, in the meantime, the authorized person of the O.P. Mangal Pandey, came // 3 // to his house and in absence of the family members of the complainant, forcibly seized and taken away the tractor. When the complainant reached to his house and came to know regarding the same, he went to the O.P. and requested for returning of the tractor, but the O.P. did not return the tractor to the complainant. Till date the O.P. did not return the tractor to the complainant and also did not provide the R.C. Book of the tractor. The complainant several time went to the O.P. and orally requested to the O.P. to return the tractor, provide the documents of the tractor, return the original cheques and also provide the receipt for payment of Rs.63,000/-, but the O.P. did not provide the same, then the complainant sent legal notice to the O.P. Even then the O.P. did not give any response. Hence, the complainant has filed the instant complaint before the District Forum and prayed for granting relief clause of the complaint.
3. Learned District Forum vide order dated 06-12-2017 has observed that in the instant case the O.P. is continuously appearing before the District Forum from 23.09.2017 and several opportunities were provided to the O.P. for filing written statement, but the O.P. could not file the written statement, therefore, the right of the O.P. for filing the written statement, is closed. Vide order dated 11.01.2018, the District Forum, had taken the written statement of the O.P. on record subject to payment of cost of Rs.500/-. The O.P. filed its written statement in the form of affidavit of Indrapal Singh, Legal Officer, H.D.F.C. Bank Ltd. Raipur and averred that the complainant had taken loan of Rs.5,03,381/- from the O.P. for purchase of tractor and executed an agreement. The installments of the loan were required to be paid by the complainant regularly in every month, but the complainant had not regularly deposited the // 4 // installments. If any amount is deposited by the loanee with the O.P. Bank , then the receipt thereof is provided by the O.P. Bank to the loanee. The complainant had not deposited a sum of Rs.63,000/- with the O.P. Bank. The averment made by the complainant regarding deposit of Rs.63,000/- with the O.P. Bank is false. The tractor of the complainant was not seized by the O.P. Bank and still the tractor is in possession of the complainant. When the O.P. Bank had not provided the documents of the tractor to the complainant, then it is not possible for the complainant to ply the tractor on road without documents. It shows that the averments made by the complainant in the complaint, is false and frivolous. The O.P. Bank has not committed any deficiency in service, therefore, the complainant is not entitled to get any compensation from the O.P. Bank and the complaint is liable to be dismissed.
4. The complainant has filed documents. The documents are registered notice dated 14.07.2017 sent by Shri B.R. Miri, Advocate on behalf of the complainant, to the O.P. and postal receipt, registered notice dated 14.07.2017 sent by Shri B.R. Miri, Advocate to Shri Subhankar Mandal, Advocate.
5. The O.P. has filed documents. Document No.1 is Power of Attorney dated 11.02.2016, document No.2 is Statement of Account issued by HDFC Bank, document No.3 is Award dated 22nd March, 2017 passed by Reena Singh, Sole Arbitrator in Arbitration Case No.418 / 2016 HDFC Bank Ltd. Vs. Chandra Sekhar Sidar (Borrower).
// 5 //
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. Bank to pay the amounts to the complainant, as mentioned in para 1 of this ordrer.
7. Shri S. Mandal, learned counsel appearing for the appellant (O.P.) Bank has argued that the complainant had taken loan of Rs.5,03,381/- from the O.P. for purchase of tractor and executed an agreement. The installments of the loan were required to be paid by the complainant regularly in every month, but the complainant had not regularly deposited the installments. If any amount is deposited by the loanee with the O.P. Bank , then the receipt thereof is provided by the O.P. Bank to the loanee. The complainant had not deposited a sum of Rs.63,000/- with the O.P. Bank. The averment made by the complainant regarding deposit of Rs.63,000/- with the O.P. Bank is false. The tractor of the complainant was not seized by the O.P. Bank and still the tractor is in possession of the complainant. When the O.P. Bank had not provided the documents of the tractor to the complainant, then it is not possible for the complainant to ply the tractor on road without documents. It shows that the averments made by the complainant in the complaint, is false and frivolous. He further argued that the before filing of the instant complaint, the matter was referred by the appellant (O.P. to the sole Arbitrator Reena Singh, who passed the award on 22.03.2017, whereas the instant complaint has been filed by the respondent (complainant) on 18.08.2017 i.e. after passing of the arbitral award by the Sole Arbitrator, therefore, the District Forum, has no jurisdiction to take cognizance in the matter. The only remedy available to the complainant is to file an application under Section 34 of the Arbitration & Conciliation Act, 1996 // 6 // or to file appeal against the award under Section 37 of the Arbitration & Conciliation Act, 19986. The O.P. Bank has not committed any deficiency in service. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the appellant (O.P.) Bank, deserves to be allowed.
8 Shri Manoj Kumar Jayaswal, learned counsel appearing for the respondent (complainant) has argued that in month of March, 2014, the complainant had obtained loan of Rs.5,00,000/- from the O.P. under agreement No.8115511 for purchasing tractor. At the time of providing loan, the O.P. asked the complainant that for security of the land, to obtain cheques for his account and provide the bunch of cheque to the O.P. The O.P. assured the complainant that the same will not be misused. On believing the version of the O.P., the complainant provided a bunch of cheque out of which in 5-6 blank cheques, the O.P. Bank obtained signatures of the complainant and the O.P. assured that the same would not be misused, but for the security of the loan, it is taken by the Bank Management. Out of loan of Rs.5,00,000/-, the complainant had paid a sum of Rs.3,50,000/- to the O.P., out of which for payment of amount of Rs.63,000/-, the O.P. has not provided the receipt to the complainant. The complainant several times demanded the receipt for the same, but the O.P. did not provide the receipt. In the month of September, 2015, the complainant had gone out of station for his personal work, in the meantime, the authorized person of the O.P. Mangal Pandey, came to his house and in absence of the family members of the complainant, forcibly seized and taken away the tractor. When the complainant reached to his house and came to // 7 // know regarding the same, he went to the O.P. and requested for returning of the tractor, but the O.P. did not return the tractor to the complainant. Till date the O.P. did not return the tractor to the complainant and also did not provide the R.C. Book of the tractor. The complainant several time went to the O.P. and orally requested to the O.P. to return the tractor, provide the documents of the tractor, return the original cheques and also provide the receipt for payment of Rs.63,000/-, but the O.P. did not provide the same. The appellant (O.P.) committed deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P.), may be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
10. It is admitted fact that the respondent (complainant) had obtained loan of Rs.5,00,000/- from the appellant (O.P.) Bank for purchasing tractor.
11. According to the respondent (complainant), the appellant (O.P.) obtained signatures of the complainant in 5-6 blank cheques and the appellant (O.P.) assured the respondent (complainant) that the above chequs will not be misused by the appellant (O.P.). The respondent (complainant) had deposited a sum of RS.3,50,000/- with the appellant (O.P.) and also deposited a sum of Rs.63,000/- but no receipt for the deposit of amount of Rs.63,000/- was given by the appellant (O.P.). The appellant (O.P.) has specifically pleaded that the respondent (complainant) had not deposited the amount of Rs.63,000/- with // 8 // the appellant (O.P.). If the above amount would have been deposited by the respondent (complainant) with the appellant (O.P.), then certainly the appellant (O.P.) would have issued receipt thereof to the respondent (complainant). The respondent (complainant) has not filed any document to prove that he deposited the amount of Rs.63,000/- with the appellant (O.P.), a mentioned by him.
12. According to the appellant (O.P.), the matter was referred to the Sole Arbitrator, therefore, the Sole Arbitrator has passed award before filing of the complaint. The appellant (O.P.) has filed certified true copy of award dated 22.03.2017 passed by Reena Singh, Sole Arbitrator. In the Award it is mentioned that "by notice dated 28.09.2016 issued by HDFC Bank Limited the claimant herein, I was informed that I have been appointed as arbitrator to adjudicate the disputes and differences between the parties herein arising out of and/or connection with a loan and guarantee agreement dated 30.12.2013 containing an arbitration clause." In para 4 it is further mentioned that "By a letter dated 18- 11-2016, I informed the parties of my acceptance of appointment as an Arbitrator and also called upon the parties to file their respective pleadings in the arbitral proceedings. The first arbitration meeting was fixed on 30-12-2016. In para 5, it is further mentioned that "The first meeting was held on 09.12.2016, and the claimant appeared through learned Advocates. The Respondent or any of their representatives in spite of receipt of notice failed to appear on the date fixed. However, in the interest of justice, the arbitral sitting was adjourned to 30-12-2016 with a direction upon the respondent to file their counter statement // 9 // of defense by 30-12-2016. A copy of the minutes of the sitting along with statement of claim was duly sent to the respondent by the speed post."
13. Looking to the award dated 22.03.2017 passed by the Sole Arbitrator, it appears that in the arbitration proceedings, the notice was duly served on the respondent (complainant), but the respondent (complainant) did not appear before the Sole Arbitrator.
14. The Sole Arbitrator has passed the arbitral award on 22.03.2017, whereas the respondent (complainant) has filed the instant complaint on 18.08.2017 i.e. after near about five months of passing of award by the Sole Arbitrator.
15. 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."
16. In Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd. and Another, 2017 (2) CPR 277 (NC), Hon'ble National Commission has observed thus :-
// 10 // "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 Agreement, therefore, the proceedings under the Consumer Protection Act, 1986 could not have been taken as an alternative remedy................."
17. 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.
// 11 //
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."
18. In Magma Fincorp Limited Vs. Gulzar Ali, II (2016) CPJ 231 (NC), Hon'ble National Commission has observed thus :-
"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."
19. 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."
// 12 //
20. In the instant case, the matter was referred to the Sole Arbitrator Reena Singh and the Sole Arbitrator had passed the award on 22.03.2017. Looking to the award dated 22.03.2017, it appears that the notice of the arbitration proceeding, was sent to the respondent (complainant), which was duly served on the respondent (complainant), but ever after service of the notice, the respondent (complainant) did not appear before the Sole Arbitrator, therefore, the award had been passed by the Sole Arbitrator in absence of the respondent (complainant) on 22.03.2017 whereas the instant complainant had been filed by the respondent (complainant) on 18.08.2017.
21. In the instant case, the appellant (O.P.) has already availed remedy under Arbitration and Conciliation Act, 1996 and award had already been passed by the Sole Arbitrator, therefore, the proceedings under the Consumer Protection Act, 1986 could not have been taken as alternative remedy. The only remedy available to the respondent (complainant) is to file an application under Section 34 of the Arbitration and Conciliation Act, 1996 before the District Judge for setting aside the arbitral award or to file appeal under Section 37 of Arbitration and Conciliation Act, 1996, against the arbitral award. The complaint is not maintainable and is liable to be dismissed. The learned District Forum, in para 7 of the impugned order has only mentioned that the award has been passed by the Arbitrator, but the learned District Forum has not discussed regarding the award and jurisdiction, in the impugned order. The learned District Forum, has allowed the complaint and directed the appellant (O.P.) to pay the amounts to the respondent (complainant), as mentioned in para 1 of this order. The appellant (O.P.) had already availed remedy under Arbitration and // 13 // Conciliation Act, 1996 and award had already been passed by the Sole Arbitrator, therefore, the District Forum, has no jurisdiction to take cognizance in the matter and the complaint is not maintainable before the District Forum. Therefore, the impugned order passed by the District Forum, is erroneous and is liable to be set aside.
22. Hence, the appeal filed by the appellant (O.P.), is allowed and the impugned order dated 27.04.2018, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
03@10@2018 03@10@2018 03@10@2018 03@10@2018