State Consumer Disputes Redressal Commission
Vishal Chhabra vs Taneja Developers & Infrastructure ... on 8 May, 2017
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH.
Misc. Application No.967 of 2017
In/and
Consumer Complaint No.353 of 2016
Date of Institution : 07.11.2016.
Date of Decision : 08.05.2017.
1. Vishal Chhabra son of Sh.Chand Bhushan Chhabra, resident of 263,
Civil Hospital Road, Near FCI Godown, Jalalabad, Distt. Fazilka.
2. Kirandeen Chhabra wife of Vishal Chhabra, resident of 263, Civil
Hospital Road, Near FCI Godown, Jalalabad, Distt. Fazilka.
........Complainants
Versus
1. Taneja Developers & Infrastructure Ltd., Registered & Crop. Office at 9
Kasturba Gandhi Marg, New Delhi-110001, through its Managing
Director.
2. Taneja Developers & Infrastructure Ltd., SCO 51-52, Sector 118, TDI
City, Mohali, through its Managing Director.
........Opposite Parties.
Application for rejection of the
complaint.
Quorum:-
Sh. J.S. Klar, Presiding Judicial Member
Smt.Surinder Pal Kaur, Member Present:-
For the complainants : Sh.Subhash Chand, Advocate For the OPs : Sh.S.K.Monga, Advocate J.S. Klar, Presiding Judicial Member:-
M.A.No.967 of 2017(for rejection of the complaint) & Main Case OPs filed an application on 05.05.2017 for rejection of this complaint. The averments of the OPs contained in this application are that Flat Buyer's Agreement was executed between the parties on 03.08.2012. There is Arbitration Clause in the Buyer's Agreement for resolution of this dispute. The matter of resolution of dispute has been pending before the Arbitrator since 13.10.2016. A copy of letter of intimation for appointment of arbitrator is annexed with this application. The complainant filed an M.A.No.967 of 2017 In/and CC No.353 of 2016 2 application challenging the jurisdiction of the said arbitrator and that application has been rejected by the arbitrator on 29.03.2017. The OPs sought rejection of the complaint on the ground that arbitrator is seized of the matter before filing the complaint.
2. The application was contested by the complainant without filing any reply to it.
3. We have heard the counsel for the parties and have also examined the record of the case. Flat Buyer's Agreement dated 03.08.2012 is contained on the file, there is provision for resolution of the dispute by means of appointment of arbitrator, vide Clause 37 of the Buyer's Agreement, which is reproduced as under :-
Arbitration In case of any dispute or differences arising out of this Agreement, its interpretation or transaction, the same shall be resolved through mutual understanding and in case the parties fail to resolve the same within 30 days of communication of such dispute by the party raising the dispute, the same shall be referred to Arbitration of a Sole Arbitration who shall act as per the provisions of Indian Arbitration & Conciliation Act, 1996 as amended from time to time. Both the parties also agree that the Persona Designated for appointing the Sole Arbitrator shall be a Chief Executive Officer of the company. The parties also agree that venue of the arbitration shall be at Mohali and subject to the exclusive jurisdiction of the Mohali Courts only.M.A.No.967 of 2017
In/and CC No.353 of 2016 3
4. Our attention has been drawn to Annexure A-2 dated 13.10.2016 addressed to the complainants informing the appointment of Arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996. Sh.Dalbir Singh, Chief Engineer(Retd.) was appointed as Arbitrator. Registered notice was sent to the complainants about it as per photostat of postal receipt dated 13.10.2016. Annexure A-3 is letter addressed to Sh.Dalbir Singh, Chief Engineer(Retd.) by OPs that he has been nominated as Arbitrator to settle the dispute. Letter of appointment of Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 dated 13.10.2017 has been placed on the record. The complainant moved an application challenging the jurisdiction of the Arbitrator, which was rejected by Arbitrator, vide order dated 29.03.2017. It is evident from perusal of Annexure A-2 dated 13.10.2016 that registered notice was sent to the complainants intimating the appointment of the Arbitrator. Section 27 of the General Clauses Act, 1897 raises the presumption of due service in such matters unless the contrary is proved on record. While relying upon Section 27 of the General Clauses Act, 1897; we have come to the conclusion that complainants were intimated about the appointment of Arbitrator on 13.10.2016. They must have got the knowledge of this fact within 3-4 days from 13.10.2016 that is by 20.10.2016. The instant complaint was filed on 07.11.2016 after appointment of the Arbitrator in this case and due notice was given to the complainants by means of registered post.
5. Once the arbitrator has already been appointed and notice was given to the complainants, the arbitration proceedings have been resorted before filing the complaint. Hence, subsequent complaint filed by the complainants is not maintainable under the Consumer Protection Act, 1986 giving the power of additional remedy to the complainants. Only one M.A.No.967 of 2017 In/and CC No.353 of 2016 4 remedy can be chosen either to file the complaint or to resort to the arbitration proceedings under Section 8 of the Arbitration and Conciliation Act, 1996.
6. We have, thus, come to the conclusion that since the arbitrator was appointed and due intimation was given to the complainants before filing the complaint, hence the filing of subsequent complaint is not maintainable, because the purpose of Section 8 of the Arbitration and Conciliation Act,1996 cannot be defeated by filing a subsequent complaint before Consumer Forum.
7. As a result of our above discussion, we accept this application filed by the OPs for rejection of the complaint and dismissed the complaint on this ground.
8. The certified copies of the order be communicated to the parties under rules.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J.S.Klar) Presiding Judicial Member (Surinder Pal Kaur) Member May 08, 2017 (rupinder-2)