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7. Opposite Party, being aggrieved, filed the Revision Petition before this Commission.

8. Ld. respective counsels appearing for the parties and the amicus curiae have been heard at length.

9. The main thrust of the submissions of the Ld. Counsel for the Opposite Parties is that the Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as the Arbitration Act of 1996) is peremptory in nature and it is obligatory on the part of the judicial authority to refer the parties for arbitration in terms of the arbitration clause in the agreement as the purpose of Section 8 of the Arbitration Act of 1996 is to make the arbitration agreement to be effective. That the mandate of Section 8 of the Arbitration Act of 1996 comes into operation only after an application under sub-section (1) is made by a party before the judicial authority before which an action is brought. There may be cases where despite existence of an arbitration agreement, the parties may get their dispute adjudicated from Consumer Fora or other judicial authorities. The reference of the matter to the arbitration is not automatic in case of existence of an arbitration agreement. But once an application under section 8 (1) of the Arbitration Act of 1996 is made by any party, the judicial authority has no discretion but to refer the parties to arbitration in view of the use of the word shall in the provision. That the bar of Section 8 of the Arbitration Act of 1996 if not strictly enforced it would create an anomalous situation wherein if the matter is not referred for arbitration, as there are counter-claims of the Opposite Parties which the Consumer Fora cannot adjudicate and it would lead to two parallel dispute resolutions over the same/similar issue. That Section 5 of the Arbitration Act of 1996 further confirms the intention of the legislature that the provisions of the Act are intended to have over-riding effect excluding the judicial authorities to intervene in the matters governed by the provisions of the Arbitration Act. That the effect of Section 8 of the Arbitration Act of 1996 is not to non-suit the consumer but to relegate him to a remedy which is already agreed upon. That if the Consumer Fora do not refer the matter to the arbitrator in terms of Section 8, it would result in a peculiar situation where there may be contradictory orders from the Consumer Fora and the Arbitrator. The Arbitrator is not denuded of his jurisdiction simply by virtue of a complaint having been filed before the Consumer Fora. If both proceedings are allowed to proceed simultaneously, the arbitral award would be enforceable as a decree of the court in terms of Section 36 of the Arbitration Act of 1996.

(emphasis supplied)

30. In Skypay Couriers Ltd.s case (supra) the Supreme Court again in the context of Arbitration Act of 1940 observed as under

:-
Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a 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 in addition to the provisions of any other law for the time being in force.

Honble Supreme Court in Madhusudhan Reddys case (supra) after posing the following questions for its consideration in para 31 of the judgment:-

The Ld. Counsel relied upon Section 8 of the Arbitration and Conciliation Act, 1996 and argued that in view of the arbitration clause contained in the agreements entered between the appellant and the growers, the latter could have applied for arbitration and Consumer Forums should have non-suited them in view of Section 8 of the Arbitration and Conciliation Act, 1996.
 
held that the complaint filed under the C.P. Act would be maintainable and the consumer cannot be denied the relief by invoking the jurisdiction of Section 8 of the Arbitration Act of 1986. That Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition and not in derogation of the provisions of any other law for the time being in force. The relevant observations of the Supreme Court contained in para 66 of this judgment read as under:-
The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.