Complaint No: 196/16.7.2009

Decided on : 20.11.2009


Sh.Tejinder Singh S/o Sh.NarinderPal Singh, Ward No.6, Near Bus Stand, Mansa.

...Complainant/ respondent.


VERSUS


General Manager, Government of India, Ministry of Defence, Indian Ordinance Factories, Field Gun Factory, Kalpi Road, Kanpur.


...Opposite Party/applicant.

Order on application dated 24.8.2009

.....


Present: Sh. S.K.Singla, Advocate counsel for the complainant.

Sh. Kaushal Kishore, Advocate, counsel for the opposite party.


Before: Sh.P.S.Dhanoa, President.

Sh.Sarat Chander, Member.

Smt.Neena Rani Gupta, Member.


ORDER:


Sh.P.S.Dhanoa, President.

This order shall dispose of application, filed on 24.8.2009, by the opposite party, under Section 8, read with Section 5, of the Arbitration and Conciliation Act, 1996, for dismissal of the complaint bearing No.196, filed on 16.7.2009, titled as 'Tejinder Singh versus General Manager, Government of India, Ministry of Defence, Kanpur,' on the ground of maintainability and in view of the arbitration clause, contained in the agreement of sale. It is submitted that agreement between the parties, for supply of Revolver, contains arbitration clause, as per which, any dispute or difference, arising between them, has to be resolved, through arbitration,

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but the complainant, has concealed the said fact. It is urged, that as jurisdiction of the Consumer Fora, is barred in view of the arbitration clause, contained in the agreement, between the parties, therefore, complaint be dismissed and parties be referred, for adjudication of the controversy, to the Arbitration.

2. On being put to notice, the respondent/complainant filed reply, resisting the application, taking preliminary objections, that opposite party, has no locus standi, to file the application and that remedy before the Consumer Fora, is additional remedy, because of which, he being the consumer, is entitled to invoke the jurisdiction of this Forum and complaint by him, is maintainable. On merits, it is submitted, that unfair trade practice, is being adopted,by the opposite party, in enhancement of rate of the revolver, agreed to be sold to the complainant at lower price, on the basis of application filed by him, as such, this Forum, has no jurisdiction, to entertain and try the complaint. Rest of the averments, made in the application, have been denied, and a prayer, has been made, for dismissal, of the same with costs.

3. We have heard the learned counsel for the parties and gone through the evidence adduced, on record, with their kind assistance.

4. It is not disputed, by the parties, that offer made by the complainant, for supply of revolver, through his application, had been accepted, by the opposite party and Registration No.40059, was allotted, to him, for sale of revolver, in the sum of Rs.72,330/-, but subsequently, vide letter dated 20.6.2009, addressed by the opposite party, to the complainant, he was directed, to make extra payment of a sum of Rs.10,182/-, due to escalation of price. The acceptance of offer of the complainant, is also not disputed, by the opposite party. This fact, is also established by several

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other documents placed on record. Therefore, there is concluded contract, between the parties for sale and purchase of revolver. The terms and conditions of agreement, are found mentioned overleaf the application of the complainant, scribed in Hindi. The clause 16 of the agreement, runs as under:-

"Unless otherwise covered by the terms and conditions of the sale agreement, any dispute or difference arising between the parties shall be resolved by a single arbitrator to be appointed by the Chairman of the Arms and Ammunitions Manufacturing Board."

5. The complainant has not disclosed the factum of existence of the said clause in the agreement between him and the opposite party for the reasons best known to him.

6. Learned counsel for the complainant Sh.S.K.Singla, Advocate, has argued that complainant, has agreed, to purchase the revolver, from the opposite party, for consideration, as such, he is consumer, under him, within the ambit of its definition given in the Act. Learned counsel, has further argued that remedy provided to a consumer, under Section 3 of the Consumer Protection Act, 1986, is additional remedy, as such, complaint in the Consumer Fora, is maintainable and this Forum, has jurisdiction, to entertain and try the same, because letter conveying acceptance, enhancement of price and extension of date, have been received by the complainant, at his address, within the territorial jurisdiction of this Forum.

7. On the other hand, learned counsel for the applicant/opposite party, has reiterated the averments, made in the written version and in the course of written arguments, to the effect that in view of the mandatory provisions of Section 8 of the Arbitration and Conciliation Act, 1996, and the arbitration clause, contained in the agreement, between the parties, for

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supply of revolver, Consumer Fora, has no jurisdiction, to entertain and try any dispute or difference, which has arisen, in connection with supply of weapon. In support of his contentions, learned counsel has placed reliance upon 2007(III) JCLR 604 Indian Drugs and Pharmaceuticals Ltd versus M/s Ambika Enterprises, wherein it is held by the Hon'ble Allahabad High Court that Arbitration and Conciliation Act, 1996, is a Special Act which provides a special form for adjudication of disputes where there is an arbitration clause, as such, Section 8 of the said Act would prevail over Section 9 CPC and 'judicial authority' would have no option but to refer the parties to arbitration. It is further held at page No.605 in paragraph No.6 that expression "judicial authority" is a wide expression and would include all authorities required to act judiciously when deciding the dispute including a Special Tribunal like Consumer Forum. In this authority reliance has also been placed on 1997(I) JCLR 234 (SC) Fair Air Enginers versus N.K.Modi. Learned counsel urged that in view of the peculiar facts and circumstances of the case and ratio of judgments delivered in these authorities referred above, complaint deserves tobe dismissed and parties be referred to arbitration for resolving their dispute or difference about the enforcement of agreement.

8. In our considered opinion, arguments advanced by the learned counsel for the opposite party, is not devoid of merits, because it is mandatory, for the judicial authority seized of the dispute or difference, having arisen out of the agreement having arbitration clause, to refer the parties, for adjudication of the controversy, through arbitration, provided it, is filed by the opposite party, before filing of the written version and is accompanied by original agreement or attested copy thereof. In the instant case, written version, has not been filed so far. The applicant, has also

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attached the attested copy of the application, filed by the complainant, containing arbitration clause. The letter of acceptance of offer, allotment of registration number, enhancement of price and date of enforcement of agreement, have been produced, on record, by the complainant himself.

9. Section 3 of the Consumer Protection Act, 1986, provides that provisions of this Act, shall be in addition to and not in derogation of provisions of any other law, for the time being in force. Since the jurisdiction of the Consumer Fora, is barred by implication, in view of the arbitration clause, contained in the agreement, between the parties and other ingredients of Section 8 of the Arbitration and Conciliation Act, 1996, are also fulfilled, therefore, we are constrained to hold that jurisdiction of the Consumer Fora, to entertain and try the instant complaint, about resolving any dispute or difference, having arisen out of the agreement containing arbitration clause, is not maintainable. Therefore, instant complaint is liable to be dismissed and parties need to be referred, to the arbitration, for resolving their disputes and differences, for enforcement of agreement through arbitration.

10. For the aforesaid reasons, we accept the application and dismiss the complaint leaving the parties to get their disputes and differences resolved through arbitration, as permissible under Section 8 of the Arbitration and Conciliation Act, 1996. In the peculiar facts and circumstances of the case parties are left to bear their own costs. 11. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.