State Consumer Disputes Redressal Commission
Nawal Kishore Banka vs South City Projects (Calcutta) Ltd. on 17 March, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 NO. MA-27/2011 in CC/48/10 DATE OF FILING: 09.02.2011 DATE OF FINAL ORDER:
17.03.2011 COMPLAINANT Nawal Kishore Banka 24A, Shakespeare Sarani, 2nd Floor Room No.6, Kolkata 700 017 OPPOSITE PARTY South City Projects ( Calcutta) Ltd.
Having its registered office at 375, Prince Anwar Shah Road Kolkata 700 068 BEFORE :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT MEMBER :
MRS. S. MAJUMDER MEMBER :
MR. S. COARI FOR THE COMPLAINANT : Ms. Rajrita Banerjee, Advocate FOR THE OPPOSITE PARTY : Mr. S. Mukherjee, Advocate :
O R D E R :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT The two Miscellaneous cases being MA-259 of 2010 and MA-27 of 2011 filed by the OP are taken up together for disposal. In the Miscellaneous Application No.259 of 2010 the OP has prayed for referring the parties to this complaint case to Arbitral Tribunal in terms of arbitration clause contained in the standard terms and conditions of allotment, sale and management of flats in the residential complex built by the OP. In the other Miscellaneous Application No.27 of 2011 the OP has prayed for taking cognigence under Section 195 of the Criminal Procedure Code for making false statements in the proceeding before this State Commission.
The complainant has filed this complaint case before this State Commission against the OP praying for the following releifs:
a) Direction on the opposite party to complete the civil work, carry out the necessary repairs and replace the inferior fittings in the complainants flat nos.34A and 35A and in the utility room no.34B as stated in paragraph 28 herein and in failure thereof to pay a compensation of Rs.20 Lakhs as stated in paragraph 28 herein;
b) Direction on the opposite party to remove the pipes installed in the private terrace of the complainant on the 34th floor;
c) Direction on the opposite party to forthwith execute deeds of conveyance in favour of the complainant in respect of flat Nos.34A and 35A, utility room no.34B, and car parking space upon giving an undertaking to complete the civil work, carry out the necessary repairs and replace the inferior fittings in the complainants flat nos.34A and 35A and in the utility room no.34B.
d) Declaration that the opposite party is not entitled to any sum on account of purported upgradation charges;
e) Declaration that the opposite party is liable to reimburse the complainant for additional expense if any, is incurred on account of stamp duty and registration charges as stated in paragraph 32 above;
f) Direction on the opposite party to pay Rs.28,970/- being the excess payment made to the opposite party as stated in paragraph 13 above;
g) Direction on the opposite party to pay compensation of Rs.25 lacs as stated in paragraph 33 above and pay interest for delayed delivery of the said flats as stipulated in clause 5 of STC.
h) Pendent elite interest and interest on award at the rate of 18% per annum till realization.
i) Costs of and incidental to this application be borne by the opposite party;
j) Such further and/or other order or orders be passed, direction or directions be given as this Ld. Forum may deem fit and proper.
The OP upon appearance in the said complaint case has filed the aforesaid MA no.259 of 2010 by contending that on the application of the complainant two units in tower II were allotted to the complainant by a letter of allotment enclosing the standard terms and conditions of allotment, sale and management of flats in the residential complex built by the O.P. According to the OP the said terms and conditions contained an Arbitration Clause in the form as set out hereunder:
10.19 Arbitration:
All disputes and/or differences between any two or more of the Applicants, Allottees, Unit Owners, Utility Room Owners and/or the Company in any manner connected herewith or arising herefrom shall be referred to the sole arbitration of an Arbitral Tribunal (Tribunal) appointed by the Board of Directors of the Company, whose decision will be final and binding on the parties to the reference. The arbitration will be in accordance with the Arbitration and Conciliation Act, 1996.
10.19.1 Summary proceeding: The Tribunal will be entitled to proceed summarily and will not be bound by any rules of procedure or evidence that can be avoided by it with the consent of or direction by the parties to the reference and it will not be necessary for it to give reasons for its award.
10.19.2 Time limit: The Tribunal will proceed expediently and will make best efforts to give its award within 4 (four) months of its appointment and shall be bound to do so within 6(six) months therefrom unless mutually agreed or be decided by the Board of Directors of the Company in exceptional cases. For doing so, the Tribunal may refuse adjournment or to give extensions of any time fixed by it.
10.19.3 Company may frame rules: The Company may from time to time frame general rules for appointment of the Tribunal and its procedure and/or award and fees and costs to be paid to it and/or the Tribunal in regard to any arbitration. All arbitrations shall be in accordance therewith and the parties thereto shall observe and be bound by the same.
The aforesaid terms and conditions are binding upon the parties to the agreement. The dispute that has been raised in the complaint case being relatable to the said terms and conditions of the allotment is, therefore, covered by the aforesaid Arbitration Clause. Accordingly a prayer has been made for referring the complaint case to the Arbitral Tribunal in terms of the Section 8 of the Arbitration and Conciliation Act, 1996.
The other MA No.27 of 2011 has been filed by the OP for referring the written objection of the complainant that has been filed against the aforesaid MA No.259 of 2010 to the Chief Judicial Magistrate, Alipore, South 24-Parganas for taking cognigence under Clause (b) of sub-Section 1 of Section 195 of the Criminal Procedure Code on the allegation that in paragraph 7 of the said written objection the complainant has made false and incorrect statement on oath and has therefore intentionally given a false evidence in this judicial proceeding before this Commission with the objective of deriving benefits therefrom.
In support of the first miscellaneous application the Applicant/OP has referred to the two decisions one by the Supreme Court reported in (2005)8 Supreme Court cases 618(SBP & Co.-Vs-Patel Engineering Ltd. and another) and other by the Calcutta High Court decided on 16.6.09 in C.O. No.218/09 (The Manager, G.E. Capital Transportation Financial Services Ltd. and Anr.-Vs-Rajwant Singh). The Supreme Court in the aforesaid decision has interpreted the various provisions of the Arbitration and Conciliation Act, 1996 and more particularly the scope and power that can be exercised under Section 8 and 11 and its various sub-Sections. It is not a decision on the scope of Section 8 and 11(6) of the said Arbitration and Conciliation Act, 1996 vis--vis the Consumer Protection Act, 1986.
The decision of the High Court is also not of much help to the OP in as much as it has nowhere been held that a complaint case filed before a Forum under the provisions of the Consumer Protection Act would not be entertainable if the agreement between the parties contained an Arbitration Clause for referring such dispute to Arbitral Proceeding in terms of Arbitration & Conciliation Act, 1996.
On the other hand upon analysis of Section 8 of the Arbitration and Conciliation Act, 1996 it has been held therein that the said provision makes it clear that the jurisdiction of a judicial authority to decide any dispute between the parties covered by an arbitration agreement is not as such ousted under the provisions of the said Act. It is only when a party applies for such reference before submitting his first statement on the substance of the dispute, before such judicial authority, a reference will be made to the arbitrator for arbitration of the said dispute between the parties and in that event the Judicial Authority will not proceed further to decide the said dispute between the parties.
Although in this case the OP has applied for such reference before this Commission but we are of the view that authority of the State Commission to decide the dispute in terms of the provisions of the Consumer Protection Act, 1986 has not at all been ousted altogether. Section 3 of the Consumer Protection Act reads as under:
3. Act not in derogation of any other law. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
The Supreme Court in the decision reported in AIR 1997 Supreme Court 533 (M/s. Fair Air Engineers Pvt. Ltd. and another-Vs-N.K. Modi) has held in no uncertain manner as under:
The Legislature intended to provide a remedy in addition to the consentient arbitration, which could be enforced under the Arbitration Act on the Civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, Section 34 of the Arbitration Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction, Nonetheless, the Act provides the additional remedy.
Furthermore, the Supreme Court in the decision reported in AIR 2000 Supreme Court 2008 (Skypak Couriers Ltd.-Vs-Tata Chemicals Ltd.) dealing with the question as to the propriety of the Consumer Disputes Redressal Commission to decide a dispute covered by an Arbitration Clause contained in the agreement between the parties has clearly held that even 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 an addition to the provisions of any other law for the time being in force.
In view of the aforesaid decisions of the Supreme Court we are of the view that this State Commission is not obliged to refer the dispute to an Arbitral Tribunal only because such dispute is covered under Arbitration Clause contained in the agreement between the parties. Rather in view of Section 3 of the Consumer Protection Act, 1986 this State Commission is entitled to proceed with the matter in accordance with the provisions of Consumer Protection Act, 1986 in as much as it has now been conclusively held that housing construction and building activity carried on by private and statutory body was service within the meaning of Clause (o) of Section 2 of the Consumer Protection Act 1986 as it stood prior to inclusion of the expression Housing Construction in the definition of service. Thus we do not find any cogent reason to refer the dispute for its disposal by an Arbitration Proceeding only because the same is covered under Arbitration Clause contained in the agreement between the parties.
Now coming to the merits of the Miscellaneous Application No.27 of 2011 we find that it has merely been alleged therein that the statements made in paragraph 7 of the written objection to the MA No.259 of 2010 are false and incorrect. It has accordingly been alleged that the complainant has made such false and incorrect statement on oath intentionally in this proceeding with the objective of deriving benefit therefrom and has therefore committed an offence under Section 193 of the Indian Penal Code. With reference to the allegations and counter allegations made in the aforesaid paragraph of the written objection to the MA No.259 of 2010 and the above MA No.27 of 2011 it at best be said that it is yet to be decided that the statements made in paragraph 7 of the said written objection are false and incorrect. Therefore at this stage no enquiry is called for to find out the veracity of the statements made therein. Such finding is also not necessary for the purpose of disposal of MA-259 of 2010 as the same has already been disposed of as above without being guided by the statements so made in paragraph 7 of the above written objection.
We, therefore, dismiss the said Miscellaneous Application No.27 of 2011 as being infructuous.
For all the reasons as aforesaid both the Miscellaneous Applications as above filed by the OP are dismissed.
However, there will be no order as to costs.
(S. Majumder) (S. Coari) (Justice P.K. Samanta) MEMBER(L) MEMBER PRESIDENT