Chandigarh

StateCommission

A/29/2017

Ansal Properties & Infrastructure Ltd. - Complainant(s)

Versus

Manish Dang - Opp.Party(s)

Gaurav Chopra, Adv.

21 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	29 of 2017
Date of Institution	:	17.02.2017
Date of Decision	:	21.02.2017

 

Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi-110001, through its Authorized Representative.

Second Address:- Ansal Properties & Infrastructure Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh.

……Appellants/opposite parties

V e r s u s

Manish Dang s/o Shri C.R.Dang, R/o H.No.39, HIG (I), Sector 48-C, Mohali working at SCO No.94, Sector 44-C, Ground Floor, Chandigarh

   ....Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Ms.Kashika Kaur, Advocate for the appellant.

                 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The appellant/opposite party(s) (hereinafter to be called as the appellant only), has filed this appeal against an order dated 30.08.2016, passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short the Forum), allowing the complaint filed by the respondent/ complainant. 

2.         Alongwith appeal, the appellant has moved an application for condonation of delay of 126 days (as per office 115) in filing the same, on the grounds mentioned therein.
3.         Before the Forum it was case of the respondent that  he applied for a residential independent floor, in the project namely “Golf Links” Mohali, launched by the appellant. Total price of the unit was fixed at Rs.29.40 lacs, which included basic cost, preference location charges and interest free maintenance charges. On receipt of application and payment of earnest money to the tune of Rs.4.23 lacs, the respondent was allotted unit No.916, Second Floor, measuring 1299 sq. ft. vide allotment letter/agreement dated 13.11.2010, in the said project. As per terms and conditions contained in the allotment letter-cum-agreement, construction of the said unit was to be completed within 24 to 30 months. Thereafter, as per the demands raised by the appellant. from time to time, the respondent deposited a sum of Rs.28,05,441/- by 22.12.2014. Rest of the small amount was to be paid, at the time of getting offer of possession of the constructed unit. The respondent continued to wait, however, possession of the unit was not offered by the stipulated date i.e. 12.05.2013 and even thereafter. Vide letter dated 30.12.2014, the respondent made request that delay having been caused, let interest for the amount deposited be paid to him. Thereafter, reminders were also sent, however, he failed to get any positive response. It was further stated that still the unit is not ready for possession.

                By alleging  deficiency in providing service, on the part of the appellant, complaint bearing no.297 of 2015 was filed by the respondent, before the Forum, claiming issuance of directions to the appellant(s), to pay interest on the amount deposited till the date of handing over possession of the unit; compensation for mental agony and physical harassment, as also litigation expenses.

4.         Upon notice, on many dates, reply and evidence was not filed. Last opportunity was granted to the appellant, to do the needful on 18.02.2016, which was not done. However, though on 18.02.2016, the case was fixed for filing reply to the complaint, yet, it appears that at that stage, with a view to prolong the matter, further, an application was also filed by the appellant, under Section 8 of the Arbitration and Conciliation Act, 1996 (in short the 1996 Act), to refer the dispute between the parties, for adjudication, to an Arbitrator, in view of existence of a provision in the agreement dated 13.11.2010, to settle dispute through Arbitration process. The matter was adjourned to 15.03.2016, for filing reply to the said application by the respondent and also for filing reply and evidence, on behalf of the appellant. On the said date, reply to the application for referring the matter to an Arbitrator, was filed by the respondent. Counsel for the respondent had already moved an application to strike off the defence of the appellant, for not filing reply and evidence, within the stipulated period, as per ratio of the judgment of the Hon’ble Supreme Court titled as New India Assurance Co. Ltd. Versus Hilli Multipurpose Cold Storage Pvt. Ltd.,Civil Appeal No.10941-10942 of 2013. Reply and evidence was ultimately filed on 07.04.2016.

                It is necessary to mention here that an application filed by the appellant, to refer the matter to an Arbitrator for settlement, was dismissed by the Forum, vide order dated 14.07.2016 and, thereafter, the matter was adjourned to 16.08.2016, for placing on record evidence by the complainant and arguments. Order dated 14.07.2016, was not challenged by the appellant, as such, it has became final. Arguments, in the matter were heard on 16.08.2016 and, thereafter, vide the impugned order, complaint was allowed. It was found as a matter of fact that as per terms and conditions of the agreement between the parties, possession of the unit was not handed over by the appellant to the respondent, by the stipulated date. As such, following relief was granted by the Forum to the respondent:-

“(i) To pay interest @12% per annum on the deposited amounts to the complainant w.e.f. 14.12.2013 (i.e. after 30 months from the date of start of the construction) onwards till the handing over of actual physical possession of the plot, in question.

(ii) To pay Rs.25,000/- as compensation for mental agony and physical harassment.

(iii) To pay Rs.10,000/- as costs of litigation expenses.”

 

5.         Compliance of the order was to be made within a period of 45 days, from the date of receipt of its certified copy, failing which, penal interest was to entail on the amount awarded towards delayed compensation. Hence this appeal.
6.         Alongwith the appeal, an application for condonation of delay of 126 days (as per office 115), in filing the appeal, was also filed by the appellant.
7.         We have heard Counsel for the appellant, on the application for condonation of delay, aforesaid, and also in the main appeal, at the preliminary stage, and have also gone through the entire record of the case, very carefully. 
8.         This appeal is barred by limitation for 126 days, however, we are not taking serious note of the same and decided to hear the matter on merits. It has vehemently been contended by Counsel for the appellant that defence was wrongly struck off, by the Forum. The appellant had filed an application, to refer the matter to an Arbitrator, for decision, in terms of Buyer’s Agreement, however, that application was dismissed on 14.07.2016 and defence was also struck off, arbitrarily. It is prayed that striking off the said defence be set aside and the matter be remanded back to the Forum, to be heard afresh, on merits, after considering the reply and evidence of the appellant.  
9.         After looking into facts of this case, we are not inclined to accept the arguments raised by Counsel for the appellant. As per provisions of Section 13 (2) (a) of the Consumer Protection Act, 1986 (in short the Act), on issuance of notice in a complaint, it is mandatory for the opposite party(s) to file written reply and evidence, within a period of 30 days, from the date of receipt of a notice, from the Consumer Fora. Further period of 15 days can be given by the Consumer Fora, as per facts of a given case. The above said provision was also held to be mandatory by the Hon’ble Supreme Court of India in New India Assurance Co. Ltd.`s case (supra). It was specifically observed that beyond the specific period, as given above, no further opportunity can be granted to the opposite party(s), to put up its defence.

                In the present case, after notice, the appellant put in appearance through Counsel on 22.07.2015. On request, the matter was adjourned to 20.08.2015, for filing reply and evidence by the appellant. Reply and evidence was not filed and for the said purpose, the matter was got adjourned to 18.09.2015. Thereafter, the matter was adjourned to 16.10.2015, 18.11.2015, 17.12.2015 and 20.1.2016. Despite having granted last opportunity, to do the needful by 18.2.2016, reply and evidence was not filed.

                It is apparent on record of the Forum that many a time, case was adjourned, on imposition of costs. Last opportunity was granted to the appellant on 20.01.2016, to  file reply and evidence by 18.02.2016, subject to payment of cost of Rs.500/-. However, instead of filing reply and evidence, it appears that to delay the matter further, an application was filed under Section 8 of the 1996 Act, to refer the dispute to an Arbitrator for settlement. As such, the matter was adjourned to 15.03.2016, for filing reply to the said application by the respondent and also for filing reply and evidence, on behalf of the appellant. On the said date, reply to the application for referring the matter to an Arbitrator, was filed by the respondent. At the same time, the respondent also filed an application to strike off the defence of the appellant, on account of its failure to file reply and evidence, with the stipulated period. The matter was adjourned to  07.04.2016, for filing reply by the appellant, on the application moved by the respondent. However, instead of filing reply to the application moved by the respondent for striking off defence of the appellant, it (appellant) filed reply and evidence to the main complaint on 07.04.2016. On the said date, arguments on both the applications, referred to above, were heard.

                Thereafter, application filed by the appellant, to refer the matter to an Arbitrator was dismissed on 14.07.2016. Vide that very order, for not filing reply and evidence, within a period of 45 days, defence of the appellant was struck off. Thereafter, arguments were heard on 16.08.2016 and the complaint was allowed, in the manner, referred to above. The sequence of events, referred to above, make it very clear that the Forum was justified in striking out the defence of the appellant, as per the provisions of Section 13 (2) (a) of the Act, which says that it is mandatory for the opposite party/appellant to file reply and evidence, within the specific period of 45 days, from the date of receipt of copy of a notice from the Consumer Fora. However, as stated above, despite granting many opportunities to the appellant, it was not so done. In the meantime, application was filed by the respondent to strike off the defence of the appellant, which was rightly allowed by the Forum. In view of above, contention raised by Counsel for the appellant is liable to be rejected.

10.         Counsel for the appellant also raised argument that the Forum had no pecuniary jurisdiction to hear the complaint. Despite objection raised, this issue was not decided, as such, the impugned order dated 30.08.2016, being a nullity, is liable to be set aside. It was specifically averred that, no doubt, the respondent has raised issue of payment of compensation, to the tune of Rs.10,84,585/-, as interest, for the period of delay in delivery of possession of the unit, however, when deciding that issue, total price of the flat i.e. Rs.29.40 lacs plus compensation towards period of delay in handing over possession and for mental agony and physical harassment claimed, needs to be taken into consideration and if all the amount prayed for is added, the total amount involved will exceed the limit of Rs.20 lacs, as such, there was no pecuniary jurisdiction with the Forum, to decide the instant complaint. To buttress her argument, she has placed reliance on  Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016, a case decided by  larger Bench of the National Consumer Disputes Redressal Commission, New Delhi (in short the National Commission).

                In the first instance, the argument raised appears to be attractive, however, on deep analysis of the ratio of judgment in the case of Ambrish Kumar Shukla`s case (supra) and provisions of Sections 21 and 21A of The Code of Civil Procedure, 1908, we are not going to buy argument, raised by Counsel for the appellant. In the case of Ambrish Kumar Shukla`s case (supra), following question of law was posed for its answer:-

“2 (i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction. (Reference made in First Appeal Nos.166,504 and 505 of 2016, vide order dated 11.08.2016 before a single Member Bench of the National Commission)”

                After discussing the relevant provisions of 1986 Act, and law on the subject, the National Commission gave answer in the following manner:-

“14.    Reference order dated 11.8.2016

          Issue No. (i)

          It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.”

11.         It was said that when determining pecuniary jurisdiction of the Consumer Fora, the aggregate value of the goods or services hired or availed by a consumer, when added to the compensation, if any claimed, in the complaint, needs to be noticed. The said judgment was passed on 07.10.2016. It was nowhere stated that, in case, decision has already been held on merits, simply by taking note of value of deficiency claimed in a complaint, such decision will become a nullity. Furthermore, when we look into the provisions of Sections 21 and 21A of the Civil Code, such a finding could not have been given. Before proceeding further, it is necessary to note down the provisions of Sections 21 and 21A of the Civil Code, which read thus:-

“21. Objections to jurisdiction.

¹[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

²[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

 

¹[21A. Bar on suit to set aside decree on objection as to place of suing.

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.”

 

12.         It is specifically mandated that no objection qua pecuniary jurisdiction of a Court shall be noticed by the Appellate or the Revisional Court, unless such an objection was taken in the Court, in the first instance, at the earliest available opportunity i.e. before framing of issues and/or unless there was a consequent failure of justice. Section 21A of the Civil Code, mandates that to set-aside a judgment, alleging lack of territorial jurisdiction, a separate suit cannot be filed.

                No doubt, the provisions of Civil Code are ipso facto not applicable to the proceedings, under the 1986 Act, in litigation, before the Consumer Foras, however, when deciding issues between the parties, the Consumer Foras can take help from the provisions of Civil Code and its interpretation given by the Courts, from time to time.

                The provisions of Section 21 of the Civil Code came up for consideration, before the Hon’ble Supreme Court of India in a case titled as Kiran Singh and Others vs Chaman Paswan and Others, 1954 AIR 340, 1955 SCR 117. In that case, judgment passed on merits was challenged by alleging that the Lower Court had no pecuniary jurisdiction, in terms of the Suits Valuation Act, 1887 (in short the Valuation Act), as the suit was undervalued. The suit was dismissed. However, appeal filed by the plaintiff was also dismissed. The plaintiff went to Patna High Court. It was also dismissed by the Patna High Court, holding that decision taken on merits can be reversed, only when the party can establish prejudice caused on merits. The matter went to the Hon’ble Supreme Court and by interpreting the provisions of Section 21 of the Civil Code and Section 11 of the Valuation Act, it was observed as under:-

“With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits, The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act.”

 

13.         Noting that no prejudice was caused on account of lack of pecuniary jurisdiction, appeal filed by the petitioner was dismissed by the Hon’ble Supreme Court. To the same effect, is the ratio of judgment in the case of Subhash Mahadevasa Habib Vs. Nemasa Ambasa Dharmadas (D), Appeal (Civil) 1449 of 2007, decided on 19 March, 2007, decided by the Supreme Court of India. In that case, under similar circumstances, it was observed as under:-

“ The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas, an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied. It may be noted that Section 21 provided that no objection as to place the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing Section was numbered as sub- Section (1) and sub-Section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice.”

 

It was further observed as under:-

“The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits."

 

14.         Similar view was expressed by the Rajasthan High Court in a case titled as Smt.Mani Vs. Kishan Lal and another, AIR 1997 Raj 19. It was specifically stated that objection qua jurisdiction needs to be taken at an earliest available opportunity and if the matter is decided on merits, such an objection cannot be taken in appeal etc. To the same effect, is the ratio of judgment in case of Brihaspati Bai Wd/O Chintaram Vs. Mohan Lal Chintaram Swarnkar, 1994 (0) MPLJ 878.

                Now we have to see the application of ratio of the judgments, in the context of the present case. As has been referred, in earlier part of this judgment, a large number of opportunities were given to the appellant, to file reply and evidence, before the Forum, however, it was not done, despite imposing costs many a time. The last opportunity was granted to file reply and evidence on 18.02.2016. On the said date, instead of filing reply and evidence, an application was filed by the appellant, raising objection only to the extent that in the face of existence of arbitration clause, in the Agreement, for settlement of disputes between the parties through an Arbitrator, the Forum has no jurisdiction to entertain and decide the instant complaint. That application was dismissed by the Forum, vide order dated 14.07.2016. In the meantime, reply and evidence was filed raising objection qua pecuniary jurisdiction of the Forum to entertain the complaint.  The facts of the case make it very clear that the said issue was not pressed, though it was taken, but was not taken as a primary issue, as the Forum was never asked to take decision on the said issue. Furthermore, it was not taken at the earliest available opportunity with the appellant. Furthermore, when looking into the merits of the case, we feel that the view taken by the Forum qua grant of compensation, in the shape of interest on the deposited amount, for the period of delay, in handing over possession of the unit, is in consonance with the law, as exists today. To grant compensation, reference has been made to the judgments of the National Commission. At the time of arguments, Counsel for the appellant failed to show that any prejudice has been caused to the interest of the appellant by allowing the complaint by the Forum. Rather, we feel that the appellant got one more opportunity to redress its grievance before this Commission. Otherwise, it would have only one right to appeal before the National Commission. In view of above, no relief can be granted to the appellant, on this score alone.  

15.         At the time of arguments, it was argued by Counsel for the appellant, that in the face of existence of arbitration clause in the Allotment Letter/Agreement, to settle disputes between the parties, it was not open to the Forum to hear the complaint. We feel that the argument raised is liable to be rejected.

                This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

“25.        The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.      To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

 

“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.”

27.    It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“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.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, 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.”

30.   Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

35.   In  view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

                As such, the plea taken by Counsel for the appellant,  being devoid of merit, is rejected.

16.         No other point was urged by Counsel for the appellant.
17.         For the reasons recorded above, this appeal being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to cost. Consequently, the application for condonation of delay, is also disposed of, accordingly, having been rendered infructuous. The order of the Forum is upheld.  
18.         Certified copies of this order, be sent to the parties, free of charge.
19.         The file be consigned to Record Room, after completion.

Pronounced.

21.02.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

Rg.