DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

M.A. No. 87/2023     

Arising out in C.C. /329/2022

Date of Filing                        Date of Listing                       Date of Disposal

   27.02.2023                             15.06.2023                              10.07.2023

P R E S E N T             :- Smt. Monisha Shaw.……………… Member.

                                     :- Sri.  Abhijit Basu…………………. Member.

          The Opposite Party filed a non-maintainability petition which is treated as M.A. being No. 87/2023. The case is taken up for hearing and hear both the parties. The O.P submits that one Title Suit being no. 111/2020 before Ld. Civil Judge (Junior Division) 2^nd Court at Barrackpore against the present O.P in respect of self same property with identical allegations. Hon’ble Civil Judge  (Judicial Department) 2^nd Court at Barrackpore passed an order dated 18/01/2023 allowing the application U/s 8 of the Arbitration and reconciliation Act, 1986. The Ld. Advocate for Complainant submits that the prayer of the Title Suit No. – 111/2020 is not the same of C.C. Case No. – 329/2022 and / or the relief claim of the Complainant is different and the C.C. /329/2022 is different issue. Heard both side. Considered the hearing of both parties and all submitted documents.

          Perused the petition, written objection, record and also the documents and case record. Considered all materials thoroughly.

          The observations of Hon’ble Supreme Court as under:-

          The Hon’ble Supreme Court in M/s. Emaar MGI Land Ltd. Vs. Aftab Sing where the Hon’ble Apex Cour has categorically mentioned that “Section 2 (3) of Arbitration Act recognizes schemes under other legislations that make disputes non-arbitable and in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement.” The Hon’ble Apex Court has also held that “the Consumer Act being a beneficial legislation enacted to give an additional remedy for the settlement of dispute, the same cannot be taken away by section 8 of the Arbitration Act, 1996. This Court is jurisdiction cases have already held that “Arbitration Act does not exclude the jurisdiction of the Consumer Forum to decide disputes under Consumer Act. The amendment of Section 8 (1) of Arbitration Act by Act, 3 of 2016 was never intended to interfere with the jurisdiction of the Consumer Forum to decide the consumer disputes.”

          Hon’ble Supreme Court of India in M/s. Fair Air Engineers Pvt. Ltd. Vs. N. K. Modi

          It is crystal clear in the judgment of the Hon’ble Supreme Court of India where it has given ample right to the consumer. In sky pac curiers limited Vs. Tala Chemicals reported in (2000) 5 Section 295. The Hon’ble Supreme Court of India held that even if their exists an Arbitration clause in agreement and a complaint is made by Consumer in addition to a certain deficiency in service then the existence of an arbitration clause will not be a bar. The agency constituted under the Consumer Protection Act has power to give remedy provided in the Act which in an addition to the provisions of any other law for the time being in force. For the welfare of such consumer and to protect consumers from the exploitations to provide protection of the interest of the consumers, the parliament enacted the Consumer Protection Act and the Act itself makes provisions for the establishment of Commission for settlement of consumer disputes and matter concern therewith. In this aspect, we can also cite the Judgment passed by the Hon’ble Supreme Court in National Seeds Corporation Vs. N. Madhusudhan Reddy (2012) 2 Sec. 506 and Booz Allen & Hamiaton Inc. Vs. SBI Home Finance Ltd. reported in (2011) 5 Sec. 532. The Hon’ble Supreme Court held “it would therefore be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the arbitration at of the civil action in a suit under the provisions of the C.P.C. Thereby as a section 34 of the Act does not confer and automatic right nor create an automatic emargo on the exercise of the power by the judicial authority under the act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Sec. 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relive the consumers of the cumbersome arbitration proceedings or civil action under the Forums on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate Forum for adjudication of disputes would be otherwise those given in the Act.”

          It appears that there is mixed question of law and facts regarding prayer for non-maintainability which cannot be decided at this stage without evidence. Henc, the petition for non-maintainability of the case filed by the O.P is rejected at this stage. This issue will be decided at the time of final disposal of the case.

          The M.A. being No. 87/2023 is rejected at this stage and disposed of.

          To 22/08/2023 for S/R.

Member                              Member