State Consumer Disputes Redressal Commission
Mr. Prasad K. Amonkar vs M/S. S. K. Land Developers on 18 May, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA Complaint No. 1/12 Mr. Prasad K. Amonkar Son of Mr. Kamalakant Amonkar, Major of age, R/o Flat No. A-11, Kenkre Estate, Santa Cruz Panaji Goa Complainant V/s. M/s. S. K. Land Developers Through its Partner Mr. Kiran Dabholkar Major of age, Office at T 46, 3rd floor, Alfran Plaza, Panaji Goa .O.P. No. 1 Mr. Devendra K. Sardessai, Major of age, Proprietor of Sharang construction, R/O UG-5, Kamat Classic, Caranzalem, Panaji Goa. .O.P. No. 2 Mrs. Sharmila D. Sadessai W/of Devendra Sardessai Major of age, R/O UG-5, Kamat Classic, Caranzalem, Panaji Goa. ..O.P. No. 3 Complainant is represented by Adv. Shri. A. S. Mashelkar. O.P. No. 1 is represented by Adv. Shri. N. G. Kamat. O.P. No. 2 & 3 is represented by Adv. S. G. Arabekar. Coram: Shri Justice N. A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 18/05/2012 ORDER
[Per Justice Shri N. A. Britto, President] This complaint arises out of non performance of the agreement between the parties, dated 3/6/08.
2. The complaint has been filed for recovery of possession of a flat agreed to be purchased by the complainant by virtue of the said agreement. The complainant has also sought for compensation. On notice having been given to the O.Ps, O.P. No. 1 has filed an application dated 12/03/12 under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the dispute to arbitration
3. There is no dispute that the said agreement between the parties dated 3/6/08 contained an arbitration clause which reads as follows:
24 All disputes which may arise between the parties to this agreement, whether in relation to the interpretation of the clauses and the conditions of this agreement, and or, about the performance of these presents or concerning any act of omission or commission of the other party to the disputes, or to any act which ought to be done by the parties in disputes, or in relation to any matter whatsoever concerning this agreement shall be referred to arbitration in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1997.
4. Shri. N.G. Kamat, the Lr. Advocate appearing on behalf of the O.P. No. 1, would submit that once a dispute resolution machinery by way of arbitration is already agreed to by and between the parties, a complaint cannot be filed before this Commission. According to Lr. Advocate, the complaint is not maintainable in law and on facts and this Commission has no jurisdiction to entertain or decide the dispute in view the said arbitration clause in the agreement.
5. Shri. Kamat has placed reliance on an unreported order of this Commission dated 13/12/11 in the case of Mrs. Alka S. Nayak vs. Mr. Shivprasad R. Kakodkar and two others in complaint No. 04/11.
6. Shri. S. G. Arabekar has adopted the submission of Shri. N. G. Kamat.
7. On the other hand, Shri. A. S. Mashelkar submits that it is the choice of the complainant, in view of Section 3 of C.P. Act 1986, as to where he should file his complaint. Shri. Mashelkar placed reliance on Secretary Tirumurughan Co-operative Agricultural Credit Society vs. M. Lalita (dead) through L.Rs and others (Page 818 SC & National Commission Consumer Law Cases (1996-2005)).
8. We are not impressed with the submission made by Lr. Advocate Shri. A. S. Mashelkar.
9. The Apex Court had rendered the above decision in the light of Section 156 of Tamilnadu Co-operative Societys Act 1983 & Section 3 of the C.P. Act, 1986. Section 156 of the said Tamilnadu Co-operative Societys Act, 1983 stated that notwithstanding anything contained in any other law for time being in force no order or award passed, decision or action taken for direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorized or empowered by him, the Tribunal or the Government or any officer subordinate to them shall be liable to be called in question in any Court and no in junction shall be granted by any Court in respect of anything which is done or intended to be done by or under this Act.
10. Needless to observe the Apex Court was dealing with two provisions of two different enactments, the C.P. Act of 1986 being latter in point of time and held that having regard to all aspects, the National Commission was right in holding that the view taken by the State Commission that the provision under the Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act is incorrect and untenable. The Apex Court had referred to Fair Air Engineers Pvt. Ltd (1996 (6) SCC 385) amongst other decisions. Fair Air Engineers had dealt with Section 34 of Arbitration Act, 1940 which did not place an embargo on the exercise of the power by the Judicial Authority under the C.P. Act.
11. In the case of Mrs. Alka S. Nayak (supra) we had taken note of several later decisions of the Apex Court and that of Calcutta High Court in Indusind Bank Ltd., before coming to the conclusion that the mandate Section 8 of 1996 Act had to be followed, following the ratio of Indusind Bank Ltd. vs. Gadadhar Banerjee (unreported decision dated 1/4/10 in CO. No. 223/2009) and had directed the parties to act in terms of the said agreement between them by referring the present dispute arbitration.
12. Sub Section (1) of Section 8 of the Arbitration & Conciliation Act, 1996 provides that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. Sub-Section (2) further provides that the application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
13. In Branch Manager, Magma Leasing & Finance Ltd., & anr., (2009) 10 SCC 103, the Apex Court has held that Section 8 of 1996 Act is in the form of a legislative command to the court and once the prerequisite conditions are satisfied, the court must refer the parties to arbitration. In Agri Gold Exims Ltd., (2007) 3 SCC 686, the Apex Court has held that Section 8 of 1996 Act is peremptory in nature and in case where there exists an arbitration agreement, the court is under obligation to refer the parties to arbitration in terms of the arbitration agreement.
14. The C. P. Act 1986 is not in derogation of Section 8 of the 1996 Act. The 1996 Act being a special law and having been enacted later in point of time ought to prevail over the provisions of C.P. Act 1986.
Section 8 of the 1996 Act is peremptory and casts an obligation on the judicial authority to refer the parties to arbitration. The prerequisites of Section 8 are satisfied in this case and the said prerequisites having been satisfied, this Commission has no other option but to refer the dispute to arbitration and this may have the effect of ousting the jurisdiction of the Commission by necessary implication.
15. The first choice of the parties, in the event of dispute, chosen by them is by way of a settlement through an arbitrator. The parties therefore, are required to adhere to their first choice.
16. In view of the above discussion, and considering the mandate of Section 8 of the 1996 Act, we hereby direct the parties to act in terms of the said agreement between them by referring the present dispute to arbitration. With the above observations, we allow the application under consideration and proceed to dismiss the complaint, with no order as to costs.
17. Complaint is accordingly disposed off, with no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President