RAMUNNIKUTTY NAIR Vs. KOTAK MAHINDRA PRIMUS LTD

JUDGEMENT

(1.) THE petitioner in the above writ petition challenges Exhibit P5 order of the Consumer Disputes Redressal Forum (for short 'CDRF'), Kozhikode, refusing to proceed with the complaint filed by the petitioner and referring the dispute to arbitration. THE petitioner also challenges the proceedings taken in Arbitration O.P.No.65 of 2006 before the II Additional District Court, Ernakulam at the instance of the respondents for appointment of an Arbitrator, though no documents are produced to evidence the same.

(2.) THE petitioner was a borrower from the respondents; having availed financial assistance for the purchase of an Ambassador Car. As per the agreement, the loan was to be repaid in 36 equated monthly instalments, for which the petitioner claims to have issued 36 post-dated cheques. It is contended that the petitioner had closed the loan account by repaying the entire amounts as on 8.4.2004. THE allegation of the petitioner before the CDRF was that despite the loan account being closed, the post-dated cheques issued by the petitioner were not returned and that in fact some of them unauthorisedly presented even after the closure of the account. In addition, the "No Objection Certificate" necessary for lifting the hypothecation endorsed by the Registering Authority in the Registration Certificate also was not issued. In the circumstances, the petitioner approached the CDRF, Kozhikode, wherein the respondents appeared and also filed its version. However, later, the respondents raised a contention that the transaction of the petitioner was on the strength of an agreement executed by the petitioner with the respondents and such agreement having contained an arbitration clause, the proceedings before the CDRF was incompetent and necessarily parties had to be referred to arbitration. This was accepted by the CDRF, Kozhikode, which passed Exhibit P5 order, the legality of which is challenged in the above writ petition.

(3.) THE short question to be answered is whether the CDRF was right in passing Exhibit P5 order by which it found itself disabled from proceeding with the complaint in view of the arbitration clause in the agreement. Going by the complaint as also the version of the respondents-opposite parties produced by the petitioner in the above writ petition, the transaction and the subsequent closure of the loan account is not at all in dispute. THE petitioner's contention of the respondents having presented post-dated cheques even after the account was closed and the failure of the respondents to issue NOC is seen to be disputed by the respondents. Looking at the complaint-Exhibit P1, essentially the petitioner has approached the CDRF for deficiency of service in so far as the above allegations regarding illegal enrichment by way of presenting cheques even after the account is closed as also failure to issue the NOC. THE petitioner has also claimed amounts as compensation for loss and injury caused on account of the negligence and deficiency in service of the respondents.