State Consumer Disputes Redressal Commission
Smt. Mala Mukherjee & Others vs Smt. Pampa Roy on 9 July, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. RC/44/2010 DATE OF FILING: 20.04.2010 DATE OF FINAL ORDER: 09.07.2010 COMPLAINANTS/PETITIONERS 1) Smt. Mala Mukherjee W/o Shri Deepak Mukherjee Residing at Flat No.4A, 4th floor 487, Keyatala Road (Now known as Hemanta Mukhopadhyay Sarani) P.S. Lake, Kolkata 700 029 2) Shri Deepak Mukherjee S/o Shri Mallinath Mukherjee Residing at Flat No.4A, 4th floor 487, Keyatala Road (now known as Hemanta Mukhopadhyay Sarani) P.S. Lake, Kolkata 700 029 OPPOSITE PARTIES 1) Smt. Pampa Roy W/o Shri Debi Prasad Roy 487, Keyatala Road P.S. Jadavpur, Kolkata 700 029 2) M/s. Auro Developers 223B, Jodhpur Park Kolkata 700 068 3) Smt.Mala Banerjee 25/3/4, Prince Gulam Md. Shah Road P.S. Jadavpur, Kolkata 700 045 4) Smt. Nandini Dutta W/o Shri Jayanta Dutta 1B, Bharat Chandra Road P.S. Lake, Kolkata 700 029 5) Shri Utpal Kumar Roy S/o Late Sujit Kumar Roy Poddar Park, Govt. Quarters Block 11, Flat-S-3, P.S. Lake Kolkata 700 045 6) Shri Krishna Das Bose S/o Naryan Chandra Bose 40/1, Sarkar Road, Bansdroni P.S. Regent Park, Kolkata 700 070 3,4 & 6 being partners of M/s. Auro Developers BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER MEMBER : MR. S. COARI FOR THE REVISIONIST : Mr. J.R. Das, Advocate FOR THE OPPOSITE PARTIES: Mr. A. Chatterjee, Advocate(No.2 to 6) : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This Revision Petition was filed challenging order dated 18.3.2010 by District Consumer Disputes Redressal Forum, Kolkata Unit-I in Complaint Case No.91/2009 whereby direction was given to the OPs to make necessary arrangements within 30 days from the date of passing of the order to send the matter to a competent arbitrator to resolve the disputes as contained in the petition of the OPs dated 12.10.09 and the arbitrator was to be engaged from the panel of Civil Engineers of Kolkata Municipal Corporation and the cost of payment of arbitrator and the allied cost, if any, is to be equally borne by both the parties. The Commissioner, Kolkata Municipal Corporation was requested to appoint a competent Civil Engineer of Kolkata Municipal Corporation to act as an arbitrator in the matter and to submit a report positively within 30 days from the date of his appointment as arbitrator to the Forum for taking further action.
The case of the complainant as stated in the complaint, in brief, is that the two complainants entered into an agreement dated 17.11.05 with the OPs for purchase of flat No.4A comprising of the entire fourth floor measuring about 1917 sq.ft. super built up area for a total consideration of Rs.48 lacs together with open terrace measuring 278 sq.ft. and one car parking space measuring 135 sq.ft. in the ground floor as also other facilities at the building to be constructed at premises No.487 Keyatala Road. As the date agreed for delivery of possession of the flat expired and the possession was not being delivered inspite of repeated letters, and even request for refund of the amount paid was not accepted ultimately the present complaint was filed seeking appropriate reliefs.
The OPs entered appearance. A petition was filed by OPs 2 to 6 for referring the matter to arbitration to resolve the disputes.
Heard the Ld. Advocates for the parties appearing in the matter.
The only point argued by the parties for consideration is as to whether in the aforesaid facts and circumstances the impugned order referring the matter to arbitration is justified or not.
Considering the respective contentions of the parties it appears that only the question of law is required to be decided as to whether the impugned order referring the matter to arbitration is sustainable. Agreement between the parties contained an arbitration Clause. When disputes arose between the parties the said remedy was not availed of. After the present complaint was filed by the complainant, the OPs contesting in the proceeding filed application praying for reference to arbitration in terms of Arbitration Clause in the agreement. The Trial Forum considered the facts and law and allowed the prayer. While considering the said contentions we find that facts are not disputed as indicated hereinabove. On behalf of the OPs asking for reference of the matter to arbitration the law relied on is as decided in the case of Rashtriya Ispat Nigam Ltd.-Vs-Verma Transport Co. reported in 2006(7) SCC 275. Strongly relying on the said judgment it is contended that on such application asking for reference to arbitration on the basis of an Arbitration Clause in the agreement between the parties, the Judicial Authority is bound to make reference and the scope of discretion in the matter left with the Judicial Authority is only as regards whether there is arbitration agreement and whether the stage of the proceeding when arbitration is asked for, is in accordance with the law. It is contended that if all the requisites are satisfied and the application is made for reference of the matter to arbitration, the Judicial Authority has no other option discretion but to make a reference. The case of Skypak Couriers Ltd.-Vs-Tata Chemicals Ltd. reported in AIR 2000 SC 2008 has been shown by the Ld. Advocate for the OPs asking for reference to arbitration, and it was contended that the said judgment does not lay down a law contrary to law declared in the case of Rashtriya Ispat Nigam Ltd.
The Ld. Advocate for the Revisionist objecting to such reference to arbitration relied on the judgment in the case of Atul Singh-Vs-Sunil Kr. Singh reported in 2008(2) SCC 602 and KHK Rangam-VS-Tycoon Builders Madras reported in 2006(1) CPJ 27.
On consideration of the respective contentions we find that the case of KHK Rangam (Supra) does not apply in the present facts.
The said case was decided in the facts of that case which are not similar to the facts of the present case.
The judgment in the case of Atul Singh (Supra) decided refusing reference as the Original Arbitration Agreement or the duly certified copy thereof were not filed.
In the present facts it does not appear that the copy of the agreement was not available. The judgment of the Forum on the contrary shows the terms of the agreement were being considered by the Forum showing its availability before the Forum. The case of Rashtriya Ispat Nigam Ltd. (supra) strongly relied on by the OP/Respondent is discussion on law as applicable in the Civil Proceeding. The proceedings under the Consumer Protection Act, 1986 have not been dealt with in the said judgment. But the judgment in the case of Fair Air Engineers Pvt. Ltd.-Vs-N.K. Modi reported in AIR 1997 SC 533 has considered the aforesaid aspect as regards discretion of the Judicial Authority in refusing reference to arbitration inspite of existence of Arbitration Clause in the Agreement. In the said judgment though Section 34 of the old law being Arbitration Act, 1940 has been discussed but in paragraph 12 thereof Section 8 of the new law has also been referred while approving the consideration as regards protection of the interests of the consumers and for that purpose the provisions of the Consumer Protection Act. In the said judgment the Honble Supreme Court after considering Section 34 of the old Arbitration law and Section 8 of the new law of Arbitration has been pleased to hold as follows:
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we are of the considered view that 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.
In view of the above finding by the Honble Supreme Court categorically referring to a proceeding under the Consumer Protection Act and also taking into consideration of Section 8 of the new law of arbitration as well as Section 34 of the old law being Arbitration Act, 1940, the said judgment is binding in the present facts. The judgment in the case of Rashtriya Ispat Nigam (Supra) having not dealt with the Consumer Protection Act and the proceedings thereunder nor having dealt with the judgment in the case of Fair Air Engineers Pvt. Ltd.(Supra) declaring the same as a wrong law, we are of the opinion that the judgment in the case of Fair Air Engineers Pvt. Ltd. (Supra) is binding on us.
In the above background we have considered as regards existence of no peculiar fact or circumstances of this particular case justifying reference to arbitration, we are of the opinion that in the present facts no such reference to arbitration should be made. The Forum below has also not considered any special facts justifying reference to Arbitration.
Accordingly the present Revision is allowed and the impugned judgment is set aside. The application filed by the OPs seeking reference to arbitration is dismissed.
The Forum is directed to dispose of the complaint case in accordance with law expeditiously. There will be no order as to costs.
(S. Majumder) (S. Coari) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT