The complainant has filed the present complaint against the opposite parties on the allegations that he is registered owner of a Vehicle bearing No.HR 26 DB 2034 which was hypothecated by the opposite party No.1 on account of availing loan of Rs.10,11,099/- vide agreement dated 23.12.2016. The said loan was repaid in 60 equal installments from January, 2017 to December, 2021 at the rate of 21,186/- per month. It has been alleged that the complainant has been paying the instalments regularly but in the month of November and December, 2017, he could not pay the monthly installments and thus in the month of January, 2018, representative of the opposite party No.1 came to the complainant and apprised about the default in making the installment. It has been alleged that complainant gave a cheque dated 16.01.2018 in the sum of Rs.42,372/- of two instalments and also assured to make the payment of defaulted installments alongwith interest. It has been alleged that the said cheque was collected by the official of opposite party No.1 but the same was not deposited for collection. It has been alleged that on 19.01.2018, 4-5 persons came and stop the vehicle of the complainant and took the vehicle forcibly despite the fact that the complainant requested them not to do so. It has been further alleged that officials of opposite party No.1 has violated the terms and conditions of the hypothecation agreement and no notice was ever received for taking the vehicle and has violated the natural justice. It has been alleged that the complainant assured the opposite parties that he was willing and ready to pay the entire instalments alongwith interest but even then the officials of the opposite parties were adamant about their illegal demands. It has been further alleged that the officials of the opposite party threatened the complainant to sell the said vehicle and to initiate proceedings for the recovery of the amount despite the fact that the complainant requested them to settle the matter but in vain. The complainant also got served legal notice dated 14.05.2018 but in vain. It has been further alleged that complainant received reply to the said legal notice wherein it was mentioned that complainant was defaulted in making the payment since the day of hypothecation despite the fact that till October, 2017 the complainant had regularly paid the installment amount. It has been further alleged that in the reply, it was also mentioned that opposite parties have initiated proceedings under Section 9 of Arbitration Act but no notice or intimation of arbitration has been received. On the aforesaid allegations, the complainant has prayed for issuing direction to the opposite parties for getting the vehicle released on payment of entire dues and also to pay a sum of Rs.1, 00,000/- on account of mental agony and harassment and Rs.25,000/- as litigation expenses.
2. On notice, the opposite parties have appeared through counsel and filed reply wherein it has been contended that the present complaint was not maintainable which was filed on false and frivolous basis and this Forum has got no jurisdiction and has contended that the loan agreement dated 23.12.2016 was executed wherein there was Arbitration Clause at Serial No.31 according to which arbitration proceedings were to be initiated in terms of Arbitration and Conciliation Act, 1996. It has been contended that the opposite parties have already appointed Sole Arbitrator as shown in Annexure- D-2. Opposite parties have also admitted Agreement of loan and repayment of the said loan in 60 equated instalments but has contended that the complainant has failed to adhere to the fiscal discipline and has defaulted in making the payment of monthly instalments. It has been contended that the complainant started defaulting from the month of April, 2017 and the first instalment that got dishonoured on 05.04.2017 and thereafter, the complainant defaulted in making the several instalments and as per the hypothecation agreement, the opposite party had rushed to repossess the vehicle and as per the terms and conditions of the loan agreement the loan was recalled vide notice dated 28.12.2017 and the complainant was asked to repay a sum of Rs.9,94,380/- which was due against the complainant as shown in Annexure D-4 and thereafter, the OPs filed an application under Section 9 of Arbitration & Conciliation Act of 1996 before the Additional District Judge- Smt. Raj Rani Mitra, Dwarka Court, New Delhi for appointment of official receiver for taking the possession of the hypothecated vehicle and the Honble Court allow the said application and the official receiver has allowed to take the custody of the hypothecated vehicle and thus as per order of Honble Court the vehicle was repossess on 10.01.2018 as per the law and on that day, the complainant was under default of 4 EMIs and had failed to clear outstanding dues. It has been contended that Sole Arbitrator-Ram Swaroop Arya, Retired Additional District and Session Judge (Annexure D-6) was appointed but none has appeared on behalf of the complainant despite issuance of the notice by the arbitrator and as such complainant was proceeded against ex-parte on 13.03.2018 in the Arbitration Proceedings and thereafter, the Arbitrator announced the Arbitral Award dated 07.05.2018 in favour of the opposite parties. The opposite parties have denied all other allegations as false and frivolous and have prayed for dismissal of the complaint in view of the arbitral award.
3. To substantiate his case, the complainant has placed on record some relied upon documents which are Annexure C-1 to Annexure C -8.
4. Similarly, in order to substantiate his case, the counsel for the opposite parties has placed on record affidavit which is Ex.OP1/A of Sh. Raj Shekhar Roy, Chief Legal Manager/ Authorised representative of OPs in which he has deposed the same facts which has been narrated in the written version filed by the opposite parties. In addition to it, the opposite parties have filed some relied upon documents which are Annexure D-1 to Annexure D-8.
5. We have gone through the record of the case carefully and have heard the learned counsels for the parties.
6. After perusal of the facts on file, evidence adduced by both the parties and hearing the oral arguments raised by the learned counsel of both the parties, it emerges that there is no dispute that the complainant availed the loan in terms of loan agreement and executed hypothecated agreement dated 23.12.2016 in favour of the opposite parties. It has come in evidence that the complainant has defaulted in making the payment in time despite notice. Thereafter, arbitration reference was made in terms of Section 9 of Arbitration & Conciliation Act of 1996. It has come in evidence that the OPs approached the Honble Court of Additional District Judge- Smt. Raj Rani Mitra, Dwarka Court, New Delhi under Section 9 of Arbitration & Conciliation Act of 1996 and the Learned Additional District and Session Judge appointed Mr.Vikas Sinhmar as receiver to receive the said vehicle as shown in Annexure-D-5 and the Sole Arbitrator- Sh. Ram Swaroop Arya announced the arbitral award as shown in Annexure D-6. Therefore, evidently the arbitration proceedings have been initiated as per law and Arbitration award has also been given.
7. However, after going through the evidence and circumstances of the case, it is evident that the opposite parties have approached the Arbitrator and the Arbitrator has announced the award on 07.05.2018 i.e. much prior to the filing of the present complaint which has been filed on 07.06.2018. Therefore, the complaint is not maintainable before the Consumer Forum in view of the settled law laid down in Shyamlal Patel Versus Manager, HDFC, Ergo General Insurance Company Limited & Others 2015 (4) CLT 422 (MP) wherein it was held that Arbitration-Held- That once the matter is referred to the Arbitrator and award is passed by the Arbitrator, then the complaint before the District Forum, under the Consumer Protection Act, 1986 is not maintainable. Therefore, since the Arbitrator has already announced the award, we are inclined to hold that the complaint before this Forum is not maintainable and as such same is hereby dismissed having no merit with no order as to cost. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance. Announced (SubhashGoyal) 16.11.2018. President, District Consumer Disputes Redressal Forum, Gurgaon (Ms.Sujata Pruthi) (Surender Singh Balyan) Member Member