DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 506/2017
M.A.-348/2017
Date of Filing: Date of Disposal:
15.12.2017 28.12.2017
Decree Holder: Sri. Subrata Ghosh, Representing his father
Sri. Ranjit Kumar Ghosh, S/o Late Phanindranath Ghosh,
Manirampur, Ghatakpara, P.O. & P.S.-Barrackpore,
District-North 24 Parganas, Pin-700 120.
Vs.
Opposite Parties:- 1) M/s. Mahadeb Consotrium, 58/30, S.M.P. Sarani,
P.O.-Barrackpore, P.S.-Titagarh,
District-North 24 Parganas, Kolkata-700 120.
Represented by the Partners:-
- Sri. Sumitsh Pal,
- Sri. Prasenjit Dasgupta,
- Sri. Binay Sen,
- Sri. Sanjoy Ghosh.
2) Sri Sumitesh Pal, S/o Late Anil Ranjan Pal,
52, Karunamoyee Road, P.O.-Talpukur, P.S.-Titagarh,
District-North 24 Parganas, Kolkata-700 123.
3) Sri. Prasenjit Dasgupta, S/o Sri. Prabir Dasgupta, 96 (46),
H.K. Sarkar Road, P.O.-Talpukur, P.S.-Titagarh,
District-North 24 Parganas, Kolkata-700 123.
4) Sri. Binay Sen, S/o Subhash Sen, Sankha Banik Colony
P.O.-Barrackpore, P.S.-Titagarh,
District-North 24 Parganas, Kolkata-700 123.
5) Sri. Sanjoy Ghosh, S/o Mritunjoy Ghosh,
H.K. Sarkar Road, P.O.-Talpukur, P.S.-Titagarh,
District-North 24 Parganas, Kolkata-700 123
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay…………President.
:- Sri Siddhartha Ganguli ….………………………Member.
:- Smt. Silpi Majumder………………………………Member.
ORDER: 04
This order is arising out of the MA being no-348/2017 in the CC no-506/2017 filed by the OPs challenging the maintainability of the complaint.
The OPs have mentioned in the application that the Complainant has no locus-standi to file the instant complaint as the complaint is base on the registered development agreement date 24.05.2013, wherein there is an arbitration clause in the pageno-14 of the said agreement. It is clearly mentioned therein that in case of any dispute or differences or any question arising, except time limitation between the parties hereto with regard to this agreement, the shall be referred to arbitration under the provision of the Indian Arbitration Act, 1940 and/or any other statutory modification and/or enactments. Therefore as per the said arbitration clause, the Complainant should be referred the dispute to arbitration under the provision of Indian Arbitration Act, 1940, but he without referring the dispute to the arbitration, straightway filed the instant complaint before this Ld. Forum. As such this complaint is not maintainable. According to the OPs if this application is not allowed, they will suffer irreparable loss and injury and the OPs have prayed for allowing this application and dismissal of the complaint on the said score.
The said MA has been contested by the Complainant verbally mentioning he is a consumer of the OPs and the OPs are the service provider as by and between him and the OPs registered development agreement was executed on 24.05.2013 for developing flats on the land of the Complainant and the OPs being agreed to provide land owner’s allocation as per the specifications entered into the registered development agreement with the Complainant. It is stated by the Complainant that inspite of existence of Arbitration clause in the agreement; this Ld. Forum has ample scope to entertain this complaint in view of the Section-3 of the Consumer Protection Act, 1986. According to the Complainant this application is misconceived; vexatious one and the same is filed by the OPs with a view to delay the proceeding, which cannot be supported. The Complainant has prayed for dismissal/rejection of the application with exemplary cost.
We have carefully perused the content of the application filed by the OPs challenging the maintainability of the complaint and heard verbal objection raised by the Complainant. From the petition of complaint it is evident to us that admittedly the Complainant entered into a registered development agreement with the OPs wherein there is an Arbitration Clause. It is stated that in case of any grievance the Complainant should approach before the Ld. Arbitrator and the dispute will be redressed and resolved through arbitration proceeding.
Now we are to see as to whether this complaint can be adjudicated upon by this Ld. Forum or not, due to existence of an Arbitration clause in the agreement in which both parties have entered into. The Ld. Counsel for the Complainant has placed reliance on the judgment passed by the Hon’ble NCDRC, reported in I (1999) CPJ 67 (NC), wherein it has been held that mere existence of an arbitration clause should not come in the way of aggrieved party for seeking legitimate relief under the Consumer Protection Act.
But we are to mention to the judgment of Kishore Lal vs. Chairman, Employees’ State Insurance Corporation (2007) 4 SCC 579, where the Hon’ble Supreme Court has held that-
‘The trend of the decisions of this court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.’
In Skypak Couriers Limited vs. Tata Chemicals limited (2000) 5 SCC 294) the Hon’ble Supreme Court has again in the context Arbitration Act, 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.”
In the paragraph no-66 of the Madhusudhan Reddy’s case (supra) the Hon’ble Supreme Court has held that-
66. “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. Moreover, the plain language of section 3 of the Consumer Protection 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.”
Very recently the Hon’ble National Commission has passed one judgment on 13.05.2013 in the Revision Petition no-412/2011 in a case of DLF Limited vs. Mridul Estate Private Limited, based on the abovementioned judgment, wherein it has been held that Consumer Forums constituted under the C.P. Act are not bound to refer the dispute to the arbitrator in view of the arbitration clause mentioned in any document of the OP. In the said judgment it has been further mentioned that complaint filed by a consumer before the Consumer Fora would be maintainable despite there being arbitration clause in the agreement to refer the dispute to the Arbitrator. Remedy provided under the C.P. Act is a special remedy with objective of redressal of grievances of affected consumers in an expeditious and non-expensive manner. If small consumers are relegated to Alternative Dispute Resolution mechanism of arbitration, remedy provided under the C.P. Act would become illusionary.
In view of the abovementioned judgments of the Hon’ble Supreme Court as well as the National Commission we are of the view that in the case in hand though there exits one Arbitration Clause in the terms and the conditions of the agreement, this complaint is very well maintainable before the Consumer Forum in view of the Section-3 of the Consumer Protection Act, 1986.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.
Member Member President
Dictated & Corrected by
