Order no.4, dt. 15.2.2023

Today is fixed for hearing of this M.A. case which has been filed by the op of complaint case no. 169 of 2022 on the ground that this C.C. case is not maintainable as there is Arbitration Clause in the License Deed.

The complainant (op of M.A. case no. 66 of 2022) has been contesting this case by filing W/O.

Ld. Advocates of both sides are found ready.

Heard both sides. Considered submission.

Perused the application which has been filed in this M.A. case. Also examined the W/O filed in this M.A. case.

It is the main point of contention and argument of the applicant side of this M.A. case that there is Arbitration Clause in the agreement and so as per Section 8 and Section 5 of the Arbitration and Conciliation Act, 1996 the complaint case no. 169 of 2022 is not maintainable. Over this issue ld. Advocate for the applicant side also referred the decision passed by the Hon’ble Apex Court in the case of Hindustan Petroleum Corpn. Ltd. Vs. M/S Pinkeity Midway Petroleums on 23^rd July, 2003 and also cited the decision of Hon’ble Apex Court in the case of M/S Magma Leasing & Fin. Ltd. &Anr. Vs. Potluri Madhavilata &Anr. on 18^th September, 2009.

But on the other hand the op side of this M.A. case referred the judgment of the Hon’ble Apex Court in the case of M/S Emaar Mgr Land Limited vs. Aftab Singh on 10^th December, 2018 and also citing the judgement of Hon’ble Apex Court in the case of Virendar Jain v. Alakananda Cooperative Group Housing Society Limited and Others (Civil Appeal no. 64 of 2010 with Civil Appeal nos. 65-68 of 2010 decided on 23^rd April, 2013.

Ld. Advocate for the op argued that remedy available under Consumer Protection Act is in addition to the remedies available under the other statute and the availability of alternative remedies is not a bar for entertaining a complaint filed under Consumer Protection Act.

For the purpose of arriving at just and proper decision over the above noted issue this District Commission after going through the materials of this case record finds that it is admitted fact that there is Arbitration Clause in the agreement. But fact remains that neither of the parties referred the dispute to the arbitrator in compliance of the agreement and no award has been passed by the ld. Arbitrator. In view of this position it is the settled principle of law that Arbitration clause in the agreement does not bar the jurisdiction of the Consumer Forum/ Commission to entertain the complaint. This legal principle has been observed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and it is reported in 2022 (2) CPR 50 (NC). Over this issue similar view was adopted by Hon’ble State Consumer Disputes Redressal Commission, Delhi and it is reported in 2022 (2) CPR 75 (Delhi). Thus, it is crystal clear the point of contention and/ or argument highlighted by the applicant side in this case cannot be accepted. Moreover, the decisions of the Hon’ble Apex Court which have been referred by the op of this case are also reflecting that remedy available under the Consumer Protection Act is in addition to the remedies available under the other statue and the availability of the alternative remedies is not a bar for entertaining a complaint under the Consumer Protection Act.

A cumulative consideration of the above noted discussion goes to show that the point of contention adopted by the applicant in this M.A. case that this case is not maintainable on the ground that there is Arbitration Clause in the agreement has not any basis at all and so this point of contention cannot be accepted.

In the result it is accordingly

ordered

that this M.A. case no. 66 of 2022 be and the same is dismissed on contest.

No order is passed as to costs.

Let this case record of M.A. case no. 66 of 2022 be tagged with the mother case record being no. C.C. 169 of 2022.