indusind Bank Limited Vs. Zaffar Mahmood - Court Judgment

B.C. Kandpal, President:

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 25.05.2010 passed by the District Forum, Haridwar in consumer complaint No. 237 of 2008, whereby the District Forum has allowed the consumer complaint against the opposite party Nos. 2 and 3 and directed them to waive off the demand of Rs.2,32,528/- made by them from the complainant and not to initiate any proceedings from recovering any amount from the complainant. The District Forum has further directed the opposite party Nos. 2 and 3 to pay litigation expenses of Rs.2,500/- to the complainant. However, the learned President of the District Forum vide dissenting order of the same date, has dismissed the consumer complaint.

2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant purchased a vehicle (Tata Spacio) from opposite party No. 1 “ Oberai Motors, P.O. Majra, Saharanpur Road, Dehradun on 18.08.2003 for Rs.4,03,000/-. Out of the said amount, the complainant paid a sum of Rs.1,20,000/- in cash to the opposite party No. 1 on various dates and the remaining amount was financed by the opposite party No. 2 “ Ashok Leyland Finance Limited, Haridwar. It is alleged that the complainant was regularly paying the loan installment of Rs.11,500/- per month to the financier and paid a sum of Rs.1,01,500/- to the financier. It is further alleged that on account of non-payment of two installments, the vehicle was repossessed by the opposite party No. 2 on 14.08.2004. The complainant lodged the FIR with the police, but the vehicle was not handed over to him. The opposite party No. 3 “ bank vide letter dated 09.07.2007 issued a recovery of Rs.2,32,528/- against the complainant. Alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Haridwar.

3. The opposite party No. 1 filed written statement before the District Forum and pleaded that they have not made any deficiency in service. The opposite party Nos. 2 and 3 filed their joint filed written statement before the District Forum and pleaded that the consumer complaint is not maintainable, as the same has been filed after passing of the award by the Arbitrator; that the consumer complaint is barred by time; that the vehicle in question was repossessed on 14.08.2004 and was auctioned on 31.12.2004; that the complainant has made default in payment of the loan amount and, as such, the demand was rightly made from the complainant and that there is no deficiency in their service.

4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 25.05.2010 in the above manner. Aggrieved by the said order, the appellant has filed this appeal.

5. We have heard the learned counsel for parties and have also perused the record.

6. There is no dispute with regard to the fact that the complainant has made default in payment of the loan installments. The complainant has himself stated in para 2 of the consumer complaint that he could not deposit the two loan installments in time and, as such, the vehicle was repossessed by the opposite party No. 2 on 14.08.2004. The consumer complaint was filed by the complainant on 20.08.2008, i.e., after a period of four years.

7. The opposite party Nos. 2 and 3 had taken a specific plea in their written statement that the consumer complaint has been filed after a period of two years from the date of repossession of the vehicle. Section 24A (1) of the Consumer Protection Act, 1986 provides that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. A perusal of the consumer complaint will show that the complainant has nowhere stated as to when the cause of action for filing the consumer complaint has arisen in his favour. The complainant in para 5 of the consumer complaint has merely written that the consumer complaint is within time. Thus, in view of the above statutory provision of the Act, the consumer complaint having been filed after a period of four years from the date of repossession of the vehicle on 14.08.2004, the same was barred by time. When a specific plea with regard to the consumer complaint being barred by time, was taken by the opposite party Nos. 2 and 3 in the written statement, the District Forum should have given a specific finding on the said plea, but the same was not done.

8. In view of above discussion, it is clear beyond any doubt that the consumer complaint was barred by time and hence the same was not maintainable and ought to have been dismissed as such.

9. This apart, since the loan amount was not repaid by the complainant and hence in view of the Hire Purchase Agreement dated 31.08.2003 executed between the appellant “ bank and the complainant, the matter was referred to arbitration and the Arbitrator has given his award on 30.04.2008 and the claim petition filed by the appellant was allowed. As is stated above, the consumer complaint was filed on 20.08.2008. If the complainant was aggrieved by the award passed by the Arbitrator, he should have filed objections against the same under Section 34 of the Arbitration and Conciliation Act, 1996, but the consumer complaint was not maintainable.

10. The learned counsel for the appellant has cited a decision of the Honble National Commission in the case of Instalment Supply Ltd. Vs. Kangra Ex-serviceman Transport Co. and another; I (2007) CPJ 34 (NC), wherein the Honble National Commission has held that the consumer complaint filed after passing of the arbitration award, is not maintainable. In the said case, all the disputes between the parties were settled through arbitration in accordance with the agreement. It was further held that the decision of the Arbitrator is binding on the parties. The learned counsel cited another decision of the Honble National Commission in the case of S. Balwant Singh Vs. Kanpur Development Authority; III (2007) CPJ 425 (NC), wherein it was held by the Honble National Commission that no complaint against the order of Arbitrator can be filed before Consumer Fora and that Section 3 of the Consumer Protection Act, 1986 is of no help if the provision of arbitration is already invoked.

11. The District Forum has not properly considered the above facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside and the appeal is fit to be allowed.

12. For the reasons aforesaid, appeal is allowed. Order impugned dated 25.05.2010 passed by the District Forum is set aside and consumer complaint No. 237 of 2008 is dismissed. No order as to costs.