Punjab

Ludhiana

CC/15/427

Rahul Garg - Complainant(s)

Versus

Akme Projects Pvt.Ltd - Opp.Party(s)

Dalip Garg, ADv.

26 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          Complaint No:  427 of 16.07.2015.                                                            Date of Decision: 26.09.2016.

 

1. Rahul Garg son of Shri Adarsh Kumar,
2. Urmila Garg wife of Shri Adarsh Kumar, both residents of HIG-35, Vikash Nagar, ADA Colony, Sasni Gate, Aligarh, IP presently at Ludhiana through authorized signatory Mr. P.K. Aggarwal son of Shri Krishan Lal, resident of House No.1701, Sector 32-A, Chandigarh Road, Ludhiana.

..… Complainant

                                                Versus

1. Akme Projects Limited, registered office at B-1/E-3, Mohan Cooperative Industrial Area, Phase-I, New Delhi-110044 through its Chairman/Managing Director
2. Shri Navneet Mahajan, G.M. Sales & Marketing/Authorized signatory of Akme Projects Limited, registered office at B-1/E-3, Mohan Cooperative Industrial Area, Phase-I, New Delhi-110044
3. Akme Projects Limited, Local Office, Ludhiana, Chandigarh Road, Jandiali, Ludhiana.

…..Opposite parties 

                                      Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH. G.K. DHIR, PRESIDENT

MS. VINOD BALA, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Dalip Garg, Advocate.

For OPs                         :         Sh. Ritesh Mohindra, Advocate

ORDER

PER G.K. Dhir, PRESIDENT

1.                Application under Section 8 of the Arbitration and Conciliation Act, 1996 (as amended up to date) filed by claiming that the present complaint has been filed in respect of purchase of specific plot in Akme Polis. The booking was done after entering into an agreement. Terms and conditions were reduced into writing. That agreement was signed by complainant and authorized officials of Ops. Terms and conditions of Buyer’s Agreement to prevail and it has been specifically provided by the terms of the agreement that in case of any dispute qua the plot in question, the matter liable to be referred to sole arbitrator. It is claimed that complainant is still in arrears of payment and as such, matter should be referred to an arbitrator as per provisions of Section 8 of Arbitration and Conciliation Act.

2.                In reply submitted to the application, it is claimed that application can be filed only on the first date of appearance and not afterwards. This application filed after availing 2/3 opportunities for filing written statement and as such, remedy of getting the matter referred to arbitrator not available to applicant. Rather application alleged to be filed with malafide intention and ulterior motive. This Forum alleged to be an appropriate Forum for deciding the matter in question. Deficiency in services on the part of Ops is there and even they adopted unfair trade practice and as such, matter deserves to be adjudicated by this Forum. Complaint was filed after submitting numerous requests. Remedy of appointing arbitrator has already been lost and as such, prayer made for dismissal of the application.

3.                After going through Article 12 of Buyer’s Agreement in question produced on record by complainant himself, it is made out that all disputes, differences or disagreement arising out of or in connection with or in relation to this Agreement shall be mutually discussed and settled between the parties. Further as per Article 12.2 of this Buyer’s Agreement in case the dispute cannot be settled amicably, then same to be referred to arbitration in accordance with provisions of the Arbitration and Conciliation Act, 1996 (including any amendment or re-enactment thereof) by a sole arbitrator to be mutually appointed by the parties. However, in the event of disagreement on the identity of such sole arbitrator, by a panel consisting of three arbitrators, out of which one to be named by each of the parties. These two arbitrators to appoint the third presiding arbitrator is also term of Article 12.2 of Buyer’s Agreement. Complainant seeking relief on the basis of Buyer’s Agreement by placing the same on record and as such, virtually complainant seeking redressal of grievance of non delivery of possession or of non refund of the amount by invoking the terms of the Buyer’s Agreement in question. That Buyer’s Agreement in question is binding on the parties.

4.                Section 8 of the Arbitration and Conciliation Act, 1996 provides that when there is an arbitration agreement and a party begins an action in the court against other party in respect of the subject matter of arbitration agreement, then in case the other party moves the court for referring the parties to arbitration, before it submits his first statement on the substance of the dispute, the matter liable to be referred to arbitrator by the judicial authority. Consumer Forum has the trappings of civil court and as such, certainly it falls under definition of judicial authority. Even the Hon’ble Supreme Court in case SBP & Co. Vs Patel Engg. Ltd. 2005 (8) SCC 618 has held that judicial authority may also include special forums. So certainly this Forum falls under definition of judicial authority. As per case of Rashtriya Ispat Nigam Ltd. Vs Verma Transport Co. 2006 (4) RCR (Civil) 478, in case dispute between parties governed by agreement containing arbitration clause, then the court should refer the dispute, which is the subject matter of arbitration agreement subject to fulfillment of conditions precedent. 

5.                Counsel for complainant after drawing our attention to Section 8 of Arbitration and Conciliation Act, 1996 vehemently argues that as application for referring  the matter to arbitrator not filed on the first date of appearance itself and as such, one  of the essential condition for referring the dispute to arbitrator is missing in this case. That submission of counsel for complainant has no force because after going through Section 8 of the above said Act, it is made out that judicial authority before whom the matter is pending, has to refer the matter to the arbitrator in case the party applies not later than when submitting his first statement on the substance of the dispute. In view of this, just filing of memo of appearance by a counsel cannot be treated as submission of first statement on the substance of the dispute, on the date of such appearance alone. Submission of first statement on the substance of the dispute means the submission of defence. In this case before us though Sh. Ritesh Mohindra, Advocate filed memo of appearance on first date of appearance, but vakalatnama and written statement was not filed on that date or on the subsequent date of 16.09.2015. Rather power of attorney along with application under Section 8 of Arbitration and Conciliation Act was filed by him on 01.10.2015. So it is obvious that first statement on the substance of the dispute never submitted by Ops till date. Rather before submission of that first statement on the substance of the dispute, application under Section 8 of the Arbitration and Conciliation Act has been filed and as such, it is not a case in which Ops debarred from filing application. Rather the necessary condition of filing application for referring the matter to arbitrator fulfilled in this case because the application submitted before submission of the first statement on the substance of the dispute.

6.                In view of this, by keeping in view Article 12 of the terms and conditions of Buyer’s Agreement in question, matter liable to be referred to the arbitrator and further proceedings before this Forum cannot be allowed to be continued. So the matter is referred to the arbitrator, appointment of which to be governed by the terms  of Clause 12.2 of Buyer’s Agreement in question. Parties required to do needful for getting arbitrator appointed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

                                       (Vinod Bala)                   (G.K. Dhir)

                                       Member                           President

Announced in Open Forum.

Dated:26.09.2016.

Gobind Ram.

Rahul Garg Vs Akme Projects                             CC/15/427

 

Present:       Sh. Dalip Garg, Advocate for complainant.

                   Sh. Ritesh Mohindra, Advocate for Ops.  

                                               

                   Written arguments on behalf of OPs filed. Oral arguments heard. Vide separate detailed order of today, application under Section 8 of Arbitration and Conciliation Act, 1996 allowed by directing the parties to get the matter referred to arbitrator as per term of Article 12.2 of Buyer’s Agreement in question. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                                                (Vinod Bala)                                     (G.K. Dhir)

                                                Member                                   President

                                                                                                26.09.2016.