State Consumer Disputes Redressal Commission
Balwinder Singh vs Unitech Ltd. on 25 April, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Misc. Application No.405 of 2016
In
Consumer Complaint No.327 of 2015
Date of institution : 23.02.2016
Date of decision : 25.04.2016
1. Balwinder Singh son of Sh. Gurdev Singh;
2. Rupinder Kaur wife of Balwinder Singh;
Both residents of Street No.5-B, Shivam Colony, near Sehnai
Palace, Sangrur.
....Complainants
Versus
1. Unitech Limited, Regd. Office 6, Community Center, Saket,
New Delhi, through its Managing Director.
2. Unitech Limited (Uniworld City Mohali), Marketing Office at
SCO-189-90-91, Sector 17, Chandigarh, through its Authorized
Officer.
3. Alice Developer's Pvt. Ltd. Registered Office at Basement 6,
Community Centre, Saket, New Delhi, through its Managing
Director.
....Opposite Parties
Application on behalf of the opposite
parties, under Section 8 read with Section 5
of the Arbitration and Conciliation Act,
1996, for referring the matter for arbitration.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member.
Present:-
For the complainants : Shri R.S. Jhand, Advocate For the opposite parties : Ms Vertika H. Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT:
M.A.No.405 of 2016:
This application has been filed by the applicants/opposite parties, under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 (in short, "the Act of 1996"), for referring the matter for arbitration. They contended therein that the complainants Misc. Application No.405 of 2016 2 In Consumer Complaint No.327 of 2015 have filed the complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act of 1986"), alleging deficiency in service and unfair trade practice for not offering possession of the flat, in question. The allotment was made in their favour on 31.03.2011 and thereafter Buyer's Agreement dated 11.05.2011 was executed between the parties and the complainants are relying upon the terms and conditions of that agreement. Clause 13 of that agreement itself contains Arbitration Clause and as per that Clause, all the disputes, differences and disagreements arising out or in connection with or in relation to the agreement, which could not be amicably settled, shall be finally decided by arbitration in accordance with the provisions of the Act of 1996. Therefore, the alleged disputes raised in the complaint are to be adjudicated in terms of this Clause; to which the parties have voluntarily agreed and those are to be adjudicated through Arbitration. As such, the complaint is not maintainable. Amendment in Section 8 of the Act of 1996, which has been made by virtue of Arbitration and Conciliation Act, 2015, provides that a Judicial Authority, before which an action is brought in a matter, which is subject of an Arbitration Agreement, is liable to refer to the arbitrator, if a party to the agreement applies for the same, notwithstanding any judgment, decree or order of the Hon'ble Supreme Court or any Court, unless such authority finds that prima facie no valid Arbitration Agreement exists. Section 5 of that Act itself provides that notwithstanding anything contained in any other law for the time being in force, in matters covered by that part, no Judicial Authority shall intervene, except where it is so provided in that part itself. In Misc. Application No.405 of 2016 3 In Consumer Complaint No.327 of 2015 view of the amended provisions of the Act, the Commission is bound to refer the disputes raised in the complaint to the Arbitrator and the complaint filed by the complainants is not maintainable.
2. The application was contested by the complainants, by filing detailed reply. In their reply, they admitted that they filed the complaint, under Section 17 of the Act of 1986, alleging deficiency in service and unfair trade practice on the part of the opposite parties in not offering the possession of the flat, in question, and that the allotment of the flat was made in their favour on 31.03.2011 and subsequently Buyer's Agreement dated 11.05.2011 was executed between them; which contained Clause 13, pertaining to the Arbitration. They did not dispute that Section 8 of the Act of 1996 stands amended and that it contains Section 5 also; which has been reproduced in the application. They denied the other contentions raised in the application and pleaded that the flat was to be handed over to them in 36 months, but despite the lapse of more than 1½ years, after the date on which the possession was to be delivered, the flat is still incomplete. The opposite parties never made any effort to clarify, as to why after getting about 90% of the price, the construction has been stopped and possession of the flat has not been delivered to them. They themselves completely failed to follow the agreement and now when they have approached the Commission for redressal of their grievance, they have come forward with the present application to delay the matter. Section 3 of the Act of 1986 makes it clear that the remedy under the Act, available to the consumer, is in addition to the remedies available under the other statutes. Such remedy is not Misc. Application No.405 of 2016 4 In Consumer Complaint No.327 of 2015 taken away by the provisions of the Act of 1996 and that in no way takes away the jurisdiction of this Commission to decide the complaint filed by them. Where the complaint is made in relation to certain deficiency in service, then the existence of Arbitration Clause is not a bar to the entertainment of the complaint by the agency constituted under the Act of 1986. The Commission is fully competent to hear and decide the complaint, in view of the provisions of the Act of 1986. The opposite parties are misleading this Commission, by putting up incomplete Clause-13 of the Agreement. As per clause 13A, the stage for referring the matter to the arbitration has still not reached; as in the first instance, all the disputes, differences and disagreements arising out of or in connection with or in relation to the agreement are to be mutually discussed and settled by the parties and only in the event of their failure to reach at any such settlement that Clause 13 regarding arbitration comes into operation. They prayed for the dismissal of the application, with costs.
3. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
4. The question, which forms the subject matter of the present application, already stands decided by this Commission in M.A. No.3239 of 2015 in C.C. No.219 of 2015 (Pavitpal Singh Vs. EMAAR MGF Land Limited). It has already been held that it cannot be said that by virtue of the amendment made in Section 8 of the Act of 1996, the complaint is no more maintainable before the Fora under the Act of 1986, on account of the existence of the Arbitration Clause Misc. Application No.405 of 2016 5 In Consumer Complaint No.327 of 2015 in the Agreement executed between the parties. The application is dismissed accordingly.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER April 25, 2016.
(Gurmeet S)