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State Consumer Disputes Redressal Commission

1)M/S Taneja Developers & ... vs Asha Pathania W/O B.S. Pathania, on 13 January, 2011

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
         S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.

                              Revision Petition No.84 of 2010

                                           Date of institution : 24.12.2010
                                           Date of decision    : 13.1.2011

     (1) M/s Taneja Developers & Infrastructure Ltd. through its authorized
         signatory, 9, Kasturba Gandhi Marg, New Delhi.
     (2) M/s Taneja Developers & Infrastructure Ltd., Sector 117-118, Site Office,
         Greater Mohali, Kharar Road, SAS Nagar.
         Also at: SCO No.1098-99, Sector 22-B, Chandigarh.
                                                                 .......Petitioners
                                       Versus

Asha Pathania w/o B.S. Pathania, resident of AABAS 2, Nalle Road, Ghuggar,
P.O. Palampur, District Kangra (H.P.)
                                                           ......Respondent
                              Revision Petition against the order dated
                              1.12.2010 of the District Consumer Disputes
                              Redressal Forum, Mohali.
Before :-
      Hon'ble Mr. Justice S.N. Aggarwal President.
              Mrs. Amarpreet Sharma, Member.

Mr. B.S. Sekhon, Member.

Present :-

For the petitioners : Shri S.K. Monga, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:

Asha Pathania respondent had filed a complaint against the petitioners in the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short "District Forum"). The petitioners appeared in the court and filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the parties to the arbitration. That application was dismissed by the learned District Forum vide impugned order dated 1.12.2010. Hence this petition.

2. Learned counsel for the petitioners submitted that the petition be accepted; the impugned order dated 1.12.2010 be set aside and the parties be referred to the arbitration. Written arguments were also filed. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "General Manager, Telecom v. M. Krishnan & Anr." 2009(4)CLT 410 (SC).

3. Record has been perused. Submissions have been considered.

4. It was held by the Hon'ble National Commission in the judgment reported as "UDAIPUR CEMENT WORKS v. PUNJAB WATER SUPPLY & SEWAGE BOARD" I(1999) CPJ 67 (NC) that mere existence of an arbitration clause does not oust the jurisdiction of the District Consumer Forums. It was held as under:-

"4. The points which have been urged by the appellant before us now are that there was an arbitration clause in the conformation letter sent by them and, therefore, the respondent should have taken recourse to arbitration rather than filing a complaint in a Consumer Disputes Redressal Forum. We are of the view that mere existence of an arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief under the Consumer Protection Act, which is a special piece of legislation to protect the interests of the consumers notwithstanding the other laws in force. We find that the State Commission was in the right in rejecting this contention and we uphold their view in this regard."

5. Similarly the Hon'ble Supreme Court was pleased to hold in the judgment reported as "SKYPAK COURIERS LTD. ETC., ETC. v. TATA CHEMICALS LTD. ETC., ETC." II (2000) CPJ 6 (SC) as under:-

"The Commissions, under the Act, are quasi judicial bodies and they are supposed to provide speedy and simple redressal to consumer disputes and for that purpose, they have been empowered to give relief of a specified nature and in an appropriate way, to award compensation. On a detailed scrutiny of the different Revision Petition No.84 of 2010. 3 provisions of the Act and bearing in mind the powers conferred on the Commissions, it is indeed difficult to conceive that such Commissions would be authorized to refer the disputes for a consensual adjudication, merely because to arrive at a decision, it would be necessary to take evidence in the proceedings. In the absence of any provision in the Act, itself, authorizing the Commission to refer a pending proceeding before it, on receipt of a complaint from a consensual adjudication, the conclusion is irresistible that the Commissions under the Consumer Protection Act do not have the jurisdiction to refer the dispute for a consensual adjudication and then make the said decision of the so-called consensual arbitrator, an order of the Commission itself. Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. Now let us see what procedure has been adopted by the Commission."

6. This view of law was reiterated by the Hon'ble Supreme Court in the judgment reported as "STATE OF HARYANA AND ORS. v. RAJ RANI" IV Revision Petition No.84 of 2010. 4 (2005) CPJ 28 (SC) in which it was held by the Hon'ble Supreme Court as under:-

"2. We have heard learned counsel for the parties and are of the view that this case stands covered by a decision of this Court in Skypak Couriers Ltd. v. Tata Chemicals Ltd., II (2000) CPJ 6 (SC)=IV (2000) SLT 494=2000 (5) SCC 294, wherein it was held that the complaint filed under Section 22 of the Consumer Protection Act requires the Commission to decide the matter in accordance with the evidence, documents and the respective case of the parties including the submissions made before it and not by referring the matter to an Arbitrator by giving an award. In view of the said decision, this appeal deserves to be allowed. Consequently, the judgment under challenge is set aside."

7. So far as the judgment of the Hon'ble Supreme Court in M. Krishnan's case is concerned, it related to the telephone bill and the Hon'ble Supreme Court placed reliance on Section 7B of the Indian Telegraph Act where it was provided that the disputes should be settled by arbitration. This judgment did not deal with the provisions under the Arbitration and Reconciliation Act, 1996 for which the application of the petitioners was dismissed by the learned District Forum.

8. Reliance was also placed by the learned counsel for the petitioners on the unreported judgment of the Hon'ble Supreme Court dated 28.3.2000 (P. ANAND GAJAPATHI RAJU & ORS. v. P.V.G. RAJU (DIED) & ORS.). This was also not a case under the Consumer Protection Act, 1986.

9. In view of the law laid down by the Hon'ble Supreme Court directly on the issue involved in this revision petition, there is no merit in this revision petition and the same is dismissed.

                                              (JUSTICE S.N. AGGARWAL)
                                                    PRESIDENT




                                            (MRS. AMARPREET SHARMA)
                                                   MEMBER




January 13, 2011                               (BALDEV SINGH SEKHON)
Bansal                                              MEMBER