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Amitabh Doss, ADNOC-D v/s Ideal Real Estates Pvt. Ltd. & Others

    First Appeal No. 334 of 2013 With IA No. 2857 of 2013

    Decided On, 10 January 2014

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE D.K. JAIN
    By, PRESIDENT
    By, THE HONOURABLE MRS. VINEETA RAI
    By, MEMBER & THE HONOURABLE MR. VINAY KUMAR
    By, MEMBER

    For the Appellant: In person. For the Respondents: R1 & R3, Karan Bharihoke, Advocate, R2, Nemo.



Judgment Text

Vinay Kumar, Member

The Present appeal arises out of the decision of West Bengal State Consumer Disputes Redressal Commission in Complaint No.CC/87/2010. The Complaint filed by Sh.Amitabh Doss has been disposed of by the State Commission with the following order:-

'Hence, it is ORDERED that the application dated 17.09.2012 filed by the OP No.1 Under Section 5 & 8 of the Arbitration and Conciliation Act, 1996 be allowed on contest but without any order as to costs. The present Consumer Complaint be referred to arbitration proceeding. Since the agreement in question has lost its force and is no longer enforceable, the petition of complaint is not entertainable before this Commission. The petition of complaint stands disposed of accordingly.'

2. In appeal against the above order, proceedings on behalf of the appellant/complainant have been conducted by him in person together with his Counsel, Ms. Rakhi Banerjee. The case of respondents No.1 & 3 has been argued by Sh.Karan Bharihoke, Advocate. Respondent No.2/Architech Hafeez Contractor has been duly served with notice but has remained unrepresented.

3. Facts of the case relate to purchase of a Villa by the complainant and his wife in Kolkata from OP-1/Ideal Real Estate Pvt. Ltd. The transaction was covered under an agreement of purchase entered into by the parties on 28.01.2010. Admittedly, the construction and delivery of this villa by the complainant was followed by a registered deed of conveyance of 30.6.2010. Five months later, a consumer complaint was filed before the State Commission on 29.11.2010.

4. From a perusal of the complaint petition we find that the complainant had certain issues about the design and construction deficiencies, but as per the complaint, 'under compelling circumstances decided to go for registration of the property on 30.6.2010. The OP – 1 delivered incomplete, unsafe, inhabitable, not as per specification and without WBSEDCL Electric Connection the villa – 44 to the complainant.' Allegedly, the defects were not rectified by the vendor/OPs despite considerable correspondence and follow up. In this background, the consumer complaint was filed with the prayer to direct Opposite parties to execute the reworks/retrofitting as recommended by Complainant’s Architect. In the alternative, pay Rs.27,81,896/- for execution of rework/retrofitting by the Complainant, together with compensation.

5. In response to the complaint, OP-1 moved an application before the State Commission under Sections 5 & 8 of the Arbitration and Conciliation Act 1996 with a prayer to permanently stay the complaint petition and refer the parties thereto to arbitration. Considering the main contention of the applicant, in the background of the fact that the villa had been constructed, its possession handed over to the complainant, as also that the deed of conveyance for the same had already been registered together with existence of clause 16.2 in the agreement for arbitration, it was urged that the complainant was not entitled to agitate his grievances in a consumer proceeding.

6. As per records, the consumer complaint was filed by the present appellant before the State Commission on 29.11.2010. The matter went to the High Court of Calcutta in Civil Revision No. 2975 of 2011 filed by the respondent/OPs against an interim order of the State Commission. In the order of 31.8.2012, Hon’ble High Court allowed the revision application, observing that 'The learned advocates appearing for both the parties are unanimous on the point of reference of the disputes between the parties to arbitral proceedings.' Subsequently, the State Commission, in the impugned order of 22.3.2013, took a similar view that the matter should be referred to arbitration.

7. The main contention of the appellant/complainant before us is that the State Commission has on the one hand acknowledged that the agreement had expired and on the other relied upon clause 16.2 of the same agreement to refer the dispute to arbitration. This argument needs to be rejected at the threshold itself for two reasons. First, as held by the State Commission, it was the complainant himself who had first resorted to the Alternative Dispute Resolution mechanism under Clause 16.1 of the agreement. Moreover, the appellant/complainant had clearly consented to arbitration before the High Court. He is therefore estopped from challenging it before any subsequent proceedings before the State Commission and the National Commission. His argument that both parties are hit by the Principle of Estoppel can give him no defence against his being estopped.

8. The second argument advanced by the appellant/complainant is that by appearing and contesting the complaint before the State Commission, the respondent/OPs had 'acquiesced to the jurisdiction of the State Commission.' It is a claim born out of a flawed logic. Consumer fora derive their jurisdiction from the provisions under the Consumer Protection Act, 1986 and not from any act of the parties.

9. Per contra, learned counsel for the respondents argued that section 3 of the Consumer Protection Act makes it clear that its provisions are in addition to, and not in derogation of, the provisions of any other law. In the present context, the other law is the Arbitration and Conciliation Act, 1996. Learned counsel for the respondent argued that the choice allowed by Section 3 had been made by the Complainant. Having chosen one, he cannot be permitted to go to the other. Learned counsel also referred to the decision of the Apex Court in National Seeds Corporation Ltd. Vs. M Madhusudan Reddy & others (2012)2 SCC 506. It was heavily relied upon by the appellant/Complainant before us. The complainant had argued that in terms of the law laid down in this decision, he could not be denied the remedy under the Consumer Protection Act, merely on the ground that he had himself initiated the process for alternative dispute resolution, in terms of Clause 16.1 of the Agreement. On the other hand, learned counsel for the respondent argued that the case of the appellant/Complainant stood on a different footing. He could not derive any support from this decision as in the p

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roceedings before the High Court he had consented to the dispute being referred to arbitration. We find that having given his consent to arbitration before the High Court in 2012, the appellant/complainant went back to opposing reference to arbitration before the State Commission in 2013. The appeal itself is filed against decision of the State Commission to refer the matter to arbitration. Therefore, we find ourselves in agreement with this argument of the respondent counsel. 10. For the reasons detailed above we find no merit in this appeal. The same is consequently dismissed and the order of the West Bengal State Consumer Disputes Redressal Commission in CC/87/2010 is confirmed.
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