Haryana

StateCommission

CC/147/2015

VIJAY KUMAR THAKUR - Complainant(s)

Versus

DLF HOMES PANCHKULA PVT.LTD. - Opp.Party(s)

S.K.SINGAL

03 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

                                         

                                                 Application No.           31 of 2016 in

                                                 Complaint No.             147 of 2015

                                                 Date of the Institution: 26.08.2015

                                                 Date of Decision:        03.08.2016

 

 

Vijay Kumar Thakur son of late Sh. Ganga Ram, resident of M/s Anurag Ent. Near Bus Stand, Sunder Nagar, District Mandi, Himachal Pradesh, presently residing at M/s Anurag Ent “Anurag’s Mall” near PWD Rest House, Sunder Nagar, District Mandi (Himachal Pradesh).

…..Complainant

 

VERSUS

 

1.      DLF Homes Panchkula Private Limited through its Managing Director/Director having its registered office DLF Gateway Tower, Second Floor, DLF City, Phase III, Gurgaon, 120002, Haryana.

 

          IInd Address:-

 

          M/s DLF Homes Panchkula Private Limited, SCO 190-191-192, Sector 8C, Chandigarh through its Branch Manager.

 

2.      Housing Development Finance Corporation Limited (HDFC), through its Branch Manager, SCO No.142, 1^st Floor, Above National Skin Hospital, Sector 5, Mansa Devi Complex, Panchkula -134106.

….. Opposite Parties

 

 

 

CORAM:    Hon’ble Mr. Justice Nawab Singh, President.

                   Mr. B.M. Bedi, Judicial Member.

                   Mr. Diwan Singh Chauhan, Member.

                  

Present:-    Mr. Abhineet Taneja, proxy counsel for Mr. D.K. Singal, Advocate for the complainant

                   Sh. Gaurav G.S. Chauhan, Advocate for the opposite party No.1

                   None for the opposite party No.2

 

                                                O R D E R

 

 

 

 

 

 

 

NAWAB SINGH J, (ORAL)

 

This order shall dispose of an application moved by DLF Homes Panchkula Private Limited -Opposite Party No.1 (for short, ‘Builder’) under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 (for short ‘the Arbitration Act, 1996) for referring the parties to resolve the matter through arbitration in terms of Clause 55 of the Buyer’s Agreement dated January 25^th, 2012.

2.      Vijay Kumar Thakur-complainant filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) with the averments that on March 19^th, 2011 he booked independent floor in the project DLF Valley, Panchkula of the builder by paying Rs.4.00 lacs.  The basic sale price of the floor was Rs.57,29,962.50. In all, the complainant paid Rs.47,41,918.68/- to the builder.  Buyer’s Agreement- was executed between the parties on January 25^th, 2012. 

3.      As per Clause 11(a) of the agreement, the possession of the flat was to be handed over to the complainant within 24 months from the date of execution of the agreement, that is, January 25^th, 2012. So, the possession was to be delivered on or before January 25^th, 2014. The builder failed to deliver possession of the floor within the stipulated period, the complainant sought refund of the money paid by him but the builder did not refund the same.  Thus, alleging deficiency in service and unfair trade practice on the part of the builder, the complainant filed complaint.

4.      The builder appeared and filed written version as well as application under the Arbitration Act, 1996. It was stated that the complaint was not entertainable under the Consumer Act and as per Clause 55 of the Buyer’s Agreement dated January 25^th, 2012, the parties were to be referred to the arbitrator to resolve their disputes.  The builder denied the averments made in the complaint and prayed for dismissal of the complaint. The complainant by filing reply to the application under Section 8 of the Arbitration Act, 1996, prayed for dismissal of the same.

5.      The issue for consideration is as to whether or not the dispute can be referred to the arbitrator?

6.      Clause 55 of the Agreement is reproduced as under:-

                   “55. Dispute Resolution by Arbitration

                   All or any disputes arising out or relating to or concerning or touching this Agreement including the interpretation and validity of the terms thereof shall be referred by any party to a sole arbitration who shall be appointed by the Company and whose decision shall be final and binding upon the parties.  The arbitration proceedings shall be governed by the Arbitration & Conciliation Act, 1996 or any statutory amendments/modifications thereof for the time being in force.  The arbitration proceedings shall be held at an appropriate location to be decided by the sole arbitrator.  The Allottee shall have no objection to such appointment even if the person so appointed, as the sole arbitrator, is an employee or advocate of the Company or is otherwise connected to the Company and the Allottee confirms that notwithstanding such relationship/connection, the Allottee shall have no doubts as to the independence or impartiality of the sole arbitrator.  The parties agree that no other person shall have the power to appoint the arbitrator.  The Courts at Panchkula alone and the Punjab & Haryana High Court at Chandigarh shall have the jurisdiction.” 

 

7.      Learned counsel for the builder has contended that after enactment of the Arbitration and Conciliation (Amendment) Act, 2015 in Section 8 of the Arbitration Act, it is mandatory for this Commission to refer the parties to arbitration.

8.      Section 8 of the Arbitration Act, 1996 is reproduced as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) 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.

(2) 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.

                   (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

9.      After amendment of the Section in the year 2015, Section 8 reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

10.    Section 3 of the Consumer Act is relevant to adjudicate the point at issue. So, it is necessary to reproduce the provisions of Section 3 of the Consumer Act:-

“3. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

11.    Upon reading of the Section 3 of the Consumer Act, it is clear that it provides additional remedy and existence of arbitration clause, in the agreement, to settle disputes between the parties, is not a bar to entertain a complaint filed by the consumer, alleging deficiency in service in providing services etc.  It is a remedy in addition to and not in derogation to any other remedy available to an individual.  Hon’ble Supreme Court in Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) 5 SCC 294 held 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.”

12.    In another case Trans Mediterranean Airways v. Universal Exports 2011(4) R.C.R.(Civil) 472 (SC), Hon’ble Supreme Court held as under:

                   “In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy      

13.    No doubt these authorities were rendered prior to the amendment of Section 8 of the Arbitration Act, 1996 but even then the spirit of Section 8 of Arbitration (Amendment) Act, 2015 and Section 3 of the Consumer Act is the same, that is, the remedy is in addition to and not in derogation to any other remedy available.  In a recent judgment Lt. Col. Anil Raj and Another Versus M/s Unitech Limited and another, C.C. No.346 of 2013, decided on May 02^nd, 2016 by Hon’ble Mr. Justice D.K. Jain, President, National Consumer Disputes Redressal Commission, New Delhi after considering the amendment in Section 8 of the Arbitration (Amendment) Act, 2015 held that in spite of the recent amendments in the Arbitration Act that the protection provided to the consumers under this Act is in addition to the remedies available under any other statute, including the consentient arbitration under the Arbitration Act.  It was held that the complaint filed by a consumer before the Consumer Fora would be maintainable despite there being an arbitration clause in the agreement to refer the dispute to the Arbitrator. 

14.    In view of the above, the application filed by the builder is dismissed.

 

Announced 03.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

U.K