MAGMA FINCORP LIMITED vs Pandit Ishwar Dev Thakur

MR. Justice K.S. Gupta, Presiding Member-Challenge in this revision by the opposite party is to the order dated 28.10.2009 of Chhattisgarh State Consumer Disputes Redressal Commission, Raipur dismissing appeal against the order dated 26.2.2008 of a District Forum. Respondent/complainant entered into a Hire Purchase Agreement with the petitioner on 1.7.2003 for availing of finance for purchase of vehicle bearing registration No. C.G. 11A-0365. He deposited Rs. 1,06,000 towards margin money. Amount of Rs. 1,54,000 was financed by the petitioner. Respondent alleged that he had given 22 post-dated cheques of Rs. 7,900 each towards monthly instalments to liquidate the loan. 1 post-dated cheque was given to cover the amount of insurance premium to the petitioner. Vehicle was re-possessed by the petitioner on 1.4.2004 on ground of amount of Rs. 71,890 being due from the respondent. Denying that ground the respondent filed complaint claiming certain reliefs which was contested by the petitioner. Complaint was allowed by the District Forum and appeal against Forum''s order was dismissed by the State Commission in terms of orders referred to above.

THRUST of argument advanced by Mr. Sanjeev Singh, Advocate is that the respondent had opted for non-post-dated cheques option and 23 post-dated cheques were not handed over by the respondent to petitioner; complaint was not maintainable in view of the Arbitration clause in Hire-Purchase Agreement; complaint had been rendered infructuous in view of the award made on 8.11.2006 by the Sole Arbitrator; and the orders passed deserve to be modified as the petitioner had sold the vehicle. Reliance has been placed on the decisions in Instalment Supply Ltd. v. Kangra Ex-Serviceman Transport Co. and Anr., I (2007) CPJ 34 (NC), and in appeal in Parameswari v. General Manager, V.S.T. Service Station and Ors., II (2010) CPJ 45 (NC), decided by this Commission on 11.2.2010. It is pertinent to note that the contention of the respondent not having given 23 post-dated cheques was also raised before the State Commission and the same has been dealt with at length in para 10 of the order. On appreciation of evidence, the Commission has returned the finding that the respondent did hand over 22 post-dated cheques towards instalments of the vehicle and one cheque towards premium amount to the petitioner. We endorse that finding recorded by the State Commission. It is not the case of the petitioner that any of the post-dated cheques was dishonoured by the Bank. Petitioner who was given 22 post-dated cheques to cover the entire financed amount with interest thus could not have legally re-possessed the vehicle on 1.4.2004 alleging non-payment of amount of Rs. 71,890 allegedly due from the respondent.

AS regards submissions referable to arbitration, it may be stated that the provisions of Section 3 of the Consumer Protection Act, 1986 is in addition and not in derogation of the proceedings of any other law for the time being in force. Thus, even if the Hire Purchase Agreement contained arbitration clause, the complaint by the respondent under the Act was legally maintainable under the Act.

PROCEEDINGS in which the award came to be passed by the Sole Arbitrator on 8.11.2006 were initiated by the petitioner, on 10.1.2006 much after the filing of complaint in April, 2004. Since the complaint was filed prior in time, the award made on 8.11.2006 will not render the complaint infructuous as contended. Kangra Ex-Serviceman Transport Co.''s case (supra), is distinguishable on facts as the award passed in that case was before the complaint was filed by respondent No. 1.

LAST limb of submission referred to above, has to be mentioned to be rejected. Since the vehicle was re-possessed by the petitioner unlawfully it cannot seek modification of the orders passed by Fora below on ground of its having sold the vehicle. Petitioner has to bear the consequences of such a sale.

PARAMESWARI''s case (supra), has no applicability whatsoever to the facts of present case.

REVISION petition is, therefore, dismissed being without of any merit. R.P. dismissed.