Calcutta High Court (Appellete Side)
Sri Biplab Das vs Smt. Mira Sengupta & Ors on 20 September, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 1017 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Sri Biplab Das.
Versus Smt. Mira Sengupta & Ors.
For the petitioner : Mr. Debasish Roy,
Mr. Ashok Kr. Ghosh,
Ms. Pampa Dey (Dhabal).
For the opposite parties : Mr. Sabyasachi Bhattacharya, Mr. Chandradoy Roy.
Heard On: 04.09.2013.
Judgement On: September 20, 2013.
Prasenjit Mandal, J.: Challenge is to the order dated March 6, 2013 passed by the Hon'ble State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No. RP/33/2013 thereby declining to admit the Revisional Application challenging the order dated February 25, 2013 passed by the learned District Consumer Disputes Redressal Forum, South 24 Parganas in Case No.85 of 2011 thereby rejecting the application under Section 8 of the Arbitration and Conciliation Act, 1996.
Pursuant to the Development Agreement dated October 2, 2009 certain constructions had been done and the intending purchasers had been put in possession of the respective flats. But, the opposite parties filed a complaint case before the District Consumer Redressal Forum, Alipore (henceforth shall be called as 'District Forum') ignoring the provisions of the agreement to the effect that the settlement of the disputes if any, will be decided by the provisions of Arbitration and Conciliation Act, 1996.
The petitioner entered an appearance in the said complaint case before the District Forum and he contested the case. At the stage of hearing argument over the case, he filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 and that application was rejected by an earlier order against which the petitioner moved this Hon'ble Court, being the C.O. No.276 of 2013, which was disposed of by an order dated January 29, 2013 by this Hon'ble Court holding that there were no ingredients which were required to be incorporated in an application under Section 8 of the 1996 Act and as such liberty was given to the petitioner to file a fresh application. Accordingly, the petitioner filed a fresh application under Section 8 of the 1996 Act and the said application was rejected by the learned District Forum by an order dated February 25, 2013. Being aggrieved by the said order, the petitioner preferred a revision being S.C. Case No. RP/33/2013 and the said application was not admitted by the impugned order. Accordingly, this application has been preferred.
Now, the point for consideration is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I am of the view that Hon'ble State Commission has rightly dismissed the application being not admitted. The petitioner has contended that in view of the Paragraph No.33 of the agreement dated October 2, 2009, between the parties, any dispute arising out of the agreement would be referred to arbitration for settlement. There is no dispute in this regard, but, the fact remains that as per observation of the District Forum, the matter in dispute has already been referred to for arbitration and, in fact, an arbitrator had already been appointed under Section 11 of the 1996 Act. So, when an arbitrator had already been appointed in the matter, no question of referring the dispute to arbitration arises at all. Above all, as per Section 3 of the Consumer Protection Act, the provision of the Act of 1996 shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
It may be noted herein that the said application under Section 8 of the 1996 Act was filed at the stage of argument, i.e., almost as close stage of the complaint case before the District Forum. Therefore, it is apparent that the application has been filed only to halt the disposal of the said case. As per provisions of the Consumer Protection Act there is a time limit within which a complaint case is to be disposed of.
During argument, Mr. Debasish Roy, learned Advocate appearing for the petitioner has contended that if there is an arbitration clause to solve the dispute between the parties as per agreement, the prayer under Section 8 of the 1996 Act could even be instituted at the stage of appeal and he has relied on the decision of P. Anand Gajapathi Raju & Ors. v. P.V.G. Raju (died) & Ors. reported in AIR 2000 Supreme Court 1886. He has also contended that as per decision of ABP Private Limited v. Media Research Users Council reported in 2013(1) CLJ (Cal) 121 parties are bound and covered by the arbitration agreement only to solve the dispute in between them and so, the application under Section 8 should have been allowed.
In the instant case it is not the situation that the arbitration clause was not known to the petitioner, but, from the conduct of the petitioner it appears that he wanted to apply such provision only when the complaint case was likely to be disposed of shortly by the District Forum. Therefore, in my view, the facts stated in the present case is quite distinguishable from the decision referred to by Mr. Roy and as such, I am of the view that those decisions are not applicable in the instant case.
Since an arbitrator has already been appointed under Section 11 of the 1996 Act, further reference is not at all required. It is not unknown at what stage the arbitration proceeding is lying, but, from the conduct of the petitioner, it is evident that he has wanted to stop the proceeding before the District Forum upon over all assessment of the materials placed by the respective parties in the proceeding before the District Forum. So, intention of the petitioner is very much clear from his conduct. The consumer Protection Act, 1986 is a complete code to entertain a complaint and it shall be dealt with in accordance with the provisions of the said Act. If any party has any grievance against the order/judgment of any particular Forum or Commission, the said Act lays down how the grievance of an aggrieved party is to be dealt with.
In such circumstances, the exercise of jurisdiction under Article 227 of the Constitution shall be rarely exercised only in the case where the action of the Forum or the State Commission is without any jurisdiction. In the instant case, the impugned order cannot be described as to have been passed without any jurisdiction by the Hon'ble State Commission. Under the circumstances, in my view, there is no scope to entertain the present application at all and for that reason also this application is liable to be dismissed.
Since the reliefs under the provisions of the Consumer Protection Act, 1986 are in addition to and not in derogation of the provisions of any other law for the time being in force, I am of the view that the State Commission has rightly rejected the prayer for admission of the revision sating the reasons for rejection.
Accordingly, in my view, there is no scope of interference with the impugned order.
The application is devoid of merits and is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)