Hon’ble Mr. Ajeya Matilal, Presiding Member

Ld. Advocates for the both sides are present.

Heard both sides in full.

This is an application u/s 17 of the Consumer Protection Act valued at Rs.48,97,877/-.

The fact of the case in short is the Complainant along with Opposite Party, Unnayan Developers Pvt. Ltd. entered into an agreement with the Opposite Parties in 9^th May 2009 vide annexure A page 8 to 14 for purchasing a developed residential plot being No.A-24 of “Shantiban Project” of Opposite Party, measuring about 4 Cottahs of land situated at Dag No.191, K.H. No.1773, J.L. No.16, P.S. Cossipore, District 24 Parganas (South), West Bengal at a consideration of Rs.13,00,000/-. The Opposite Parties promised to hand over the said plot within 48 months from 9^th May 2009, being the date of Agreement. In spite of payment of Rs.12,56,682/- the Opposite Parties did nothing to develop the infrastructure of the plot and offered the claimant to change the said plot with Plot No.SPA15 of the project of “Unnayan Garden” measuring about 6 Cottah of land situated at Dag No.657/690, Khatian No.1537, Kulberia, P.S. KLC, Dist. South 24 Pgs. The Claimant accepted the said offer and entered into another agreement dated 15.02.2016 (Annexure-B of the Complainant, page 15). In the subsequent agreement also the Opposite Parties agreed to hand over the said plot with basic infrastructure within 48 months. Total consideration was Rs.36.00 Lakhs against which Rs.12,56,682/- was adjusted. The Claimant further paid Rs.5,99,800/- by online payment and Rs.23,318/- in cash. The Complainant paid the same time to time through valid receipts which are in Annexure C of the complaint page no. 21 to 35. The Opposite Parties admitted that they received Rs.27,39,894/- from the Complainant. In spite of receiving the same the Opposite Parties did nothing towards infrastructure development of plot. So, the Complainant served notices through emails which are reflected in page no. 36 to 41 of the Complaint marked as Annexure E. The complainant prayed for direction upon the Opposite Parties to hand over the plot of the said land with alternative prayer for refund of the paid amount along with 9% interest and Rs.6.00 Lakhs as litigation cost.

The Opposite Parties contested the case by filing a Written Version denying the material allegations of the claimed petition along with the technical pleas. It is alleged by the Opposite Party that the Complainant did not pay the EMIs in terms of the subsequent agreement. It is also alleged by the Opposite Parties that there was an Arbitration Clause in Agreement dated 15.02.2016 in Annexure B of the complaint to the effect, “23. All disputes and/or differences whatsoever arising between the parties hereto or persons claiming under the terms and conditions of this agreement shall be mutually settled and in case the disputes or differences are not settled mutually then the dispute shall be referred to the sole arbitration of an Arbitral Tribunal appointed by the Managing Director of the Company, whose decision will be final and binding on the parties to the reference. The Arbitration will be in accordance with the Arbitration and Conciliation Act 1996”.

It is also alleged by the Opposite Parties that the case was referred to Mr. Amal Kumar Mukhopadhyay, Ld. Advocate, Arbitrator. The Arbitral Tribunal by award dated 22.02.2019 disposed of the arbitration proceedings between the Parties holding, “Under such circumstances, this Arbitral Tribunal holds that parties to this proceeding at present have no dispute and/or difference and/or grievance against their respective other sides and earlier disputes and/or differences and/or grievances had already been mutually resolved. Accordingly the instant proceeding is dropped.”

It appears from the body of the Judgement that the matter was decided by the Ld. Arbitrator after bearing both sides.

Both parties adduced evidence and they were cross-examined in connection with the present case.

For proper adjudication of disputes between the parties following points are framed:-

1. Is the case maintainable?
2. Has the Complainant any cause of action?
3. Is the Complainant a consumer?
4. Whether the Complainant is entitled to relief as prayed for?
5. To what other relief/reliefs, if any, the Complainant is entitled to?

Decisions with reasons:-

All the points are taken together for the sake of convenience.

The Ld. Advocate for the Opposite Parties submitted that as there is an Arbitration Clause in the Agreement, so the present complaint is not maintainable under the Consumer Protection Act 1986.

The Ld. Advocate for the Complainant referred to a decision of NCDRC dated 27.04.2018 in FA/617/2018, wherein it had been observed “It was also not disputed in the Written Version filed by the Appellant before the State Commission that in terms of agreement it was required to refund the amount received from the Complainant with 10% interest, therefore, the order passed by the State Commission does not call for any interference by this Commission in exercise of its Appellate Jurisdiction. The appeal being devoid of any merits is hereby dismissed. This Commission in Judgement dated 06.03.2018 in CC/271/2015 observed, “A Consumer forum is primarily meant to protect the consumers and their claims and their claims cannot be defeated on technical grounds.” The Ld. Advocate for the Opposite Parties submitted that to seek appropriate remedy the Complainant should have invoked Section 34 of the Arbitration and Conciliation Act 1996. It is also argued by the Ld. Advocate for the Opposite Parties that the matter was referred to the Ld. Arbitrator unilaterally without any consent from the other side.

It appears from the record initially the complaint was filed and subsequently the matter was referred to the Ld. Arbitrator. The complaint was filed in 2018 and arbitral award was passed on 22.02.2019 subsequently. There is nothing on record that beforehand the matter was informed to the Complainant by the Opposite Parties regarding appointment of an Arbitrator. On the basis of reference of the Opposite Parties arbitration proceedings was initiated.

Ld. Advocate for the Opposite Party referred to a Judgement dated 08.05.2018 in Revision Petition no. 2689 of 2016 wherein, it has been observed, “Moreover once the remedy of arbitration was availed the remedy under Consumer Protection Act 1986 cannot be availed of as the Award of Arbitration will operate as res judicata”. It would appear from Annexure A of the complaint, being the page 6 of the Arbitral Award that the said Manjulika Banerjee being the Complainant had not filed any statement of claim and withdrew herself from the entire proceedings. So, her application was liable to be rejected since withdrawn.

The Hon’ble NCDRC in Judgement dated 08.05.2018 in Revision Petition No.2689 of 2016 in paragraph 6 observed, “Moreover, once the remedy of arbitration was availed, the remedy under Consumer Protection act 1986 cannot be availed as the award of arbitration will operate as res judicata.”

Though in section 3 of the Consumer Protection Act 1986 provides for an alternate remedy, but this does not mean that a consumer can pursue two remedies side by side or one after other.

In paragraph 10 of the aforesaid judgement the Hon’ble NCDRC observed, “From the above judgement, it is clear that this Commission has taken a view that if the parties have gone into arbitration and the arbitration award has been passed, the doors of the consumer forum are not open for the same relief.”

In page 7 to 13 of the Written Version it has been stated that the complainant has no right to approach this Commission, particularly when the Ld. Arbitrator passed an award in the dispute.

In reply, Ld. Advocate for the complainant referred to the arbitration award, which at Annexure A. In the page 6 of the award, the Ld. Arbitration observed “which is apparent from the said application u/s 16(3) of the Arbitration and Conciliation Act, 1956, Manjulika Banerjee had not filed any Statement of Claims and had withdrawn herself from the entire proceedings. Such of her conduct made her said applicable liable to be rejected since withdrawn. Since her said application is rejected for non- prosecution her allegations made therein cannot survive”.

Finally, the Ld. Arbitrator observed that “Under such circumstances, this Arbitral Tribunal holds that parties to this proceeding at present have no dispute and/or difference and/or grievance against their respective other sides and earlier disputes and/or differences and/or grievances had already been mutually resolved. Accordingly, the instant proceeding is dropped”.

Assailing the aforesaid order, the Ld. Advocate for the complainant submitted that there are irregularities in the arbitral award.

Admittedly, there was an agreement and there was a clause for referring the same to an arbitrator.

Section 34 of the Arbitration and Conciliation Act, 1996 goes as below:

“Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub- section (2) and sub-section (3)”.

So, in view of the factual scenario of the case along with the position of law cited above, we find that the present application is not maintainable.

So, all the points are answered accordingly against the Complainant.

Accordingly, the Complaint Case No. CC/712/2018 is dismissed on contest without awarding any costs.

ORDERED ACCORDINGLY.