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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
Mir Alam – Petitioner
versus
Magma Finance Corporation – Respondent
Revision Petition No.1892 of 2019
(Against the Order dated 28/06/2019 in Appeal No.24/2018 of the State Commission Orissa)
Decided on 18.8.2021
Counsel for the Parties:
For the Petitioner:Mr. Anurag Bindal, Advocate
For the Respondent:Mr. Suman Tripathy, Advocate
IMPORTANT POINTS
1) Authorities under Consumer Protection Act do not exercise supervisor or appellate powers over Arbitrator’s award.
2) Remedy of the complainant was to file an application for setting aside ex-parte Arbitrator’s award under Sec. 34 of Arbitration and Conciliation Act, 1996 or to file an appeal against it.
Headnote:
Consumer Protection Act, 1986 – Section 21(1)(b) (Consumer Protection Act, 2019 Section 58(1)(b)) – Revision Petition - Against the Order dt. 28.06.2019 in Appeal of the State Commission - Respondent had financed Rs.18,14,477/- to Petitioner for purchasing truck, which was hypothecated with the Respondent on execution of the loan agreement - Distt. Forum granted ex-parte interim injunction restraining Respondent from repossessing the truck during pendency of the complaint - Loan agreement contains arbitration clause and thus complaint not maintainable per State Commission – Arbitral proceedings initiated - Petitioner did not appear before Arbitrator - Arbitrator passed ex-parte award in favour of Respondent and it repossessed the truck in execution of Arbitrator’s award and sold it to third party - Authorities under Consumer Protection Act do not exercise supervisor or appellate powers over Arbitrator’s award - Complaint before District Forum not maintainable - Remedy of the complainant was to file an application for setting aside ex-parte Arbitrator’s award under Sec. 34 of Arbitration and Conciliation Act, 1996 or to file an appeal against it.
Held: District Forum by the order dated 05.02.2018, held that the papers relating to repossession of the truck dated 10.09.2017, appeared to be fabricated, after passing the order dated 13.10.2017. On this finding, the opposite party was directed to hand over the truck to the complainant. The opposite party filed Revision Petition No. 24 of 2018, from the aforesaid order. State Consumer Disputes Redressal Commission, Odisha, by the impugned dated 28.06.2019 held that after Arbitrator’s award dated 28.04.2016 was in the same dispute as such the consumer complaint was not maintainable. On this finding, this revision petition has been allowed and the Consumer Complaint No. 74 of 2017, filed by the petitioner has been dropped. Hence this revision has been filed.
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 instalments 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.
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 exparte 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) 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. (Paras 6, 8 & 9)
Result: Revision petition dismissed.
ORDER
Heard Mr. Anurag Bindal, Advocate, for the petitioner and Mr. Suman Tripathy, Advocate, for the respondent.
2. This revision has been filed against the order of State Consumer Disputes Redressal Commission, Odisha dated 28.06.2019 passed in R.P. No. 24 of 2018 (arising out of the order of District Consumer Disputes Redressal Forum, Bhadrak dated 05.02.2018, passed in Consumer Complaint No. 74/2017), whereby District Forum, has directed the opposite party to deliver possession of the case vehicle to the petitioner within 10 days and the revision has been allowed holding that in view of Arbitrator’s award, in the matter in dispute, consumer complaint was not maintainable and it has been dropped.
3. Mir Alam (the petitioner) filed Consumer Complaint No. 74/2017, for restraining the opposite party to repossess the truck (bearing registration No. OD-01, M-0554), to issue no objection certificate for deleting endorsement of hypothecation, from the truck, to pay a sum of Rs.10,000/- for mental agony, to pay cost of the litigation and any other relief to which the complainant will be entitled. It has been stated that the complainant purchased the truck (bearing registration No. OD-01, M-0554), for Rs.24 lakhs, in which the opposite party had financed Rs.18,14,477/- on 31.12.2014, after executing a loan agreement. Till the date of filing of the complaint, the complainant had paid Rs.19,51,000/- but the opposite party was charging exorbitant interest against guide lines of Reserve Bank of India and showing dues. On 05.10.2017, the muscle men of the opposite party tried to repossess the truck, when the truck was near Bishunpurbindha but due to interference of general public, they could not succeed but they gave threatening to repossess the truck later on. On these allegations, the complaint was filed.
4. District Forum granted ex-parte interim injunction, dated 13.10.2017, restraining the opposite party from repossessing the truck in question during pendency of the complaint. The petitioner then filed another application, alleging that in violation of the interim injunction, the opposite party repossessed the truck and they may be restrained from selling the truck. On which, District Forum issued show cause notice, fixing 25.10.2017. The opposite party did not appear on the date fixed as such District Forum by order dated 30.10.2017, directed the concerned police station to insure, the attendance of the opposite party on 13.11.2017. The petitioner again filed an application on 21.12.2017, restraining the opposite party from selling the truck.
5. The opposite party appeared on 08.11.2017 and filed its written statement, in which, the fact relating to finance of Rs.18,14,477/- on 31.12.2014, after executing a loan agreement, for purchasing the truck and its hypothecation was admitted. It has been stated that the complainant had committed serious defaults in payment of the instalment of the loan. When in spite of the demand notices being served, the complainant did not turn up for payment of the instalments of the loan, then invoking arbitration clause under the loan agreement, the matter was referred to the Arbitrator. The complainant did not appear before the Arbitrator also in spite of the notice as such, the Arbitrator gave in his ex-parte award, holding the opposite party to pay a sum of Rs. 21,79, 342/- on 28.04.2016. In execution of Arbitrator’s award dated 28.04.2016, the opposite party repossessed the truck on 10.09.2017, after serving inventory upon the driver the truck. The opposite party gave a pre-sale notice to the complainant on 21.09.2017, giving him an option to purchase the truck but he did not turn up. The opposite party thereafter sold the truck to a third party on 24.10.2017. In view of the Arbitrator’s award dated 28.04.2016, the present complaint was not maintainable. The opposite party also filed an application for recalling the orders dated 13.10.2017, 18.10.2017 and 30.10.2017.
6. District Forum by the order
