Haryana

StateCommission

CC/198/2015

Nishant Silvania - Complainant(s)

Versus

Unitech Llimited - Opp.Party(s)

Vinish Singla

10 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

                                         

                                                 Application No.           28 of 2016 in

                                                 Complaint No.             198 of 2015

                                                 Date of the Institution:          31.03.2016

                                                 Date of Decision:        10.08.2016

 

 

1.      Nishant Silvania son of Sh. Karam Chand resident of Flat No.B-7, HSIIDC Apartments, Sector 14, Panchkula.

 

2.      Prashant Silvania son of Sh. Karam Chand, resident of Flat No.B-7, HSIIDC Apartments, Sector 14, Panchkula.

…..Complainants

 

VERSUS

 

Unitech Limited having its registered office at 6 Community Centre, Saket, New Delhi 110017 and its marketing office at Signature Towers, Ground Floor, NH-8, South City-1, Gurgaon and Local Office at Sector 16, NH-1, Ambala (Haryana) through its Managing Director.

….. Opposite Party

 

 

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

                   Mr. B.M. Bedi, Judicial Member.

                   Mr. Diwan Singh Chauhan, Member.

                  

Present:-    Mr. Vinish Singla, Advocate for the complainants

                   Mr. Lalit Gupta, Authorized Representative on behalf of opposite party

 

                                                O R D E R

 

NAWAB SINGH J, (ORAL)

 

This order shall dispose of an application moved by Unitech Limited-Opposite Party (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 13 of the Buyer’s Agreement dated November 17^th, 2012.

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

3.      Clause 13 of the Agreement is reproduced as under:-

                   “13. Arbitration

                   14.a All disputes, differences or disagreements arising out of, in connection with or in relation to this Agreement, shall be mutually discussed and settled between the parties.

                   14.b  However disputes, differences or disagreements arising out of, in connection with or in relation to this Agreement, which cannot be amicably settled, shall be finally decided by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996.  Arbitration as aforesaid shall be a domestic arbitration under the Applicable Laws.

                   14.c  The venue of arbitration shall be Gurgaon or such other place as may be mutually agreed to between the Parties and the Award of the Arbitrator(s) shall be rendered in English.” 

 

4.      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.

5.      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.”

6.      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.”

7.      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.”

8.      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.”

9.      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      

10.    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. 

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

 

Announced 10.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

U.K