APPEARED AT THE TIME OF ARGUMENTS For the Appellant | : | Ms. Priyanka Ghorawat, Advocate | For the Respondents | : | Mr. Bonny Laishram, Advocate | | | |
PRONOUNCED ON: 16th November 2017 ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER This first appeal has been filed under section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 05.08.2014, passed by the West Bengal State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in Consumer Complaint No. 158/2014, filed by the present petitioner, vide which, the complaint in question has been held to be not maintainable in view of the Arbitration proceedings pending between the parties. 2. Notice of the appeal was given to the respondents, who entered their appearance through counsel. The learned counsel for both the parties have been heard. 3. It was stated by the learned counsel for the appellant/complainant that the matter should be remanded to the State Commission for deciding the same on merits, because the issue of referring the matter for arbitration had already been decided by a larger Bench of this Commission in the case, Aftab Singh vs. Emaar MGF Land Limited & Anr.” and allied matters [CC No. 701/2015 dated 13.07.2017]. 4. The learned counsel for the respondents stated that the arbitration proceedings between the parties were going on and that the complainant had already entered appearance before the Arbitrator and filed their reply before them. There was no substance in the present appeal therefore, and it should be dismissed. 5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 6. The operative portion of the impugned order passed by the State Commission reads as below:- “Upon considering the material on record, it is very much found that arbitration proceedings have been initiated before the Ld. Sole Arbitrator, Mr. Gyanendra Kumar Singh before initiation of this complaint case. So, in view of such proceedings, being Arbitration Case No. GS 214, this complaint case being a latter one, the same is not maintainable in the eye of law. It has also been held by the Hon’ble National Commission in the case referred, reported in 2006 (3) CPR 339 (NC), complaint can not be decided by the Consumer Fora after an arbitration award is already passed.” 7. There is a delay of 98 days in filing the present appeal as the impugned order is dated 05.08.2014, whereas the instant appeal was filed before this Commission on 11.12.2014. It is contended by the appellant that he did not receive free copy of the impugned order. The certified copy of the impugned order was received by him on 12.11.2014 and hence, the appeal was within limitation as it was filed within 30 days from 12.11.2014. 8. A perusal of the certified copy filed by the appellant on record shows that the State Commission have not indicated the date in the relevant column, when free copy was issued to the appellant. A perusal of the original record of the State Commission also does not indicate the date on which the free copy was issued. Keeping in view the averments made by the appellant and looking at the merits of the case, it is felt that it shall be in the interest of justice, if the said delay in filing the said appeal is condoned. Accordingly, the delay of 98 days in filing the appeal is ordered to be condoned. 9. In so far as the merits of the case are concerned, it has been contended by the learned counsel for the respondent that since the appellant/complainant has already joined the Arbitration proceedings and had also filed his reply before the Arbitrator, the proceedings before the Arbitrator should be taken to their logical conclusion and hence, the present complaint had been rightly dismissed as non-maintainable. On the other hand, the contention of the complainant/appellant is that they received copy of the notice from the Arbitrator on 05.06.2014, whereas the complaint had been filed before the State Commission on 14.05.2014. A perusal of the record of the Arbitration proceedings reveals that as per the minutes recorded by the Arbitrator on 13.05.2014, no counter statement had been filed on behalf of the complainant before them. The matter was adjourned to 02.07.2014, on which date the learned counsel for the complainant appeared before the Arbitrator and requested that the Arbitration proceedings should be adjourned till the disposal of the consumer complaint by the State Commission. However, the Arbitrator directed the complainant to file his counter statement/objection by 27.08.2014. The said counter statement was filed on the next date of hearing i.e. 28.08.2014, implying clearly that the complainant had not submitted himself to the Arbitration proceedings at the time of filing the consumer complaint in question. It is evident, therefore, that the consumer complaint filed by the complainant on 14.05.2014 was very much maintainable. The matter has already been considered by a larger Bench of this Commission and as per the order dated 13.07.2017, passed in Aftab Singh vs. Emaar MGF Land Limited & Anr.” and allied matters [CC No. 701/2015], it has been held that the remedy under Section 3 of the Consumer Protection Act, 1986 was an additional remedy and hence, the complainant could not be debarred from filing the consumer complaint for the redressal of his grievance. 10. Based on the discussion above, the present appeal is allowed and the order passed by the State Commission is set aside. The consumer complaint is held to be maintainable and the State Commission is directed to decide the case after giving due opportunity to both the parties to plead their case as per due process of law. There shall be no order as to costs. | 
