Deepak Mehra And Others vs Sujoy Kumar Nag And Others
2021 Latest Caselaw 1712 Cal/2

                    IN THE HIGH COURT AT CALCUTTA
                      ORIGINAL CIVIL JURISDICTION
                                   (Original Side)


                                                         A.P. No. 549 of 2019
                                                     (Through Video Conferencing)

                                                       Reserved on: 14.12.2021
                                                       Pronounced on: 23.12.2021


DEEPAK MEHRA AND OTHERS

                                                                          ....Applicant(s)

                               Through : Mr. Jishnu Chowdhury,
                                         Mr. Syed Nurul Arefin,
                                         Mr. Rahul Singh, Advocates

                                           v/s

SUJOY KUMAR NAG AND OTHERS
                                                                       ....Respondent(s)

Through : Mr. Anant Kumar Shaw, Ms. Puspal Chakraborty, Ms. Prisanka Ganguly, Advocates

Coram : HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE

Prakash Shrivastava, CJ:

1. This application under Section11 of the Arbitration and Conciliation Act,

1996 has been filed by the applicants for appointment of arbitrator to resolve the

dispute between the parties.

2. The case of the applicants is that they are involved in hospitality industry

and real estate whereas, the respondents had represented that they were the owners

of the land in question and interested to develop a housing complex and hotel.

Therefore, the agreement dated 5th August, 2009 was executed between the parties.

The said agreement contains following arbitration clause:

"25. In case of any disputes and differences arising between the parties hereto as regard to the completion of the aforesaid project, such differences and disputes shall be referred to arbitration and both the parties shall jointly appoint the sole Arbitrator who will hear out the same and pass award as per the Arbitration and Conciliation Act, 1996."

3. According to the applicants, initially, the respondents had represented for

construction through local contractor and the applicants were to supervise but

subsequently, the supervision was also withdrawn and on completion of the

project, the respondents are using the property without giving the share to the

applicants. The applicants had given notice dated 08th July, 2019 invoking the

Arbitration Clause and suggesting the name of the sole Arbitrator. The said notice

was replied on 15th July, 2019 by the respondents refusing to accept the prayer for

arbitration.

4. The submission of the learned Counsel for the applicants is that the

arbitration agreement exist and that mere filing of complaint by the respondents

before the National Consumer Disputes Redressal Commission will not take away

the right of the applicants to invoke the Arbitration Clause and that the applicants

have no remedy to file counter-claim before the National Consumer Disputes

Redressal Commission.

5. The objection of the learned Counsel for the respondents is that the

respondents have already approached the National Consumer Disputes Redressal

Commission by filing the complaint which is pending and in which the written

statement has already been filed by the applicants, therefore, they cannot invoke

the Arbitration Clause now.

6. Having heard the learned Counsel for the parties and on perusal of the

record, it is noticed that the agreement and the Arbitration Clause therein is not in

dispute. Nothing has been pointed out by the learned Counsel for the respondents

to show that the applicants have any remedy of filing the counter-claim before the

National Consumer Disputes Redressal Commission. Hon'ble Supreme Court in

the matter of Rosedale Developers Private Limited vs. Aghore Bhattacharya

and Others, (2018) 11 SCC 337, has held that availability of remedy of arbitration

to the complainant does not bar the jurisdiction of the Consumer Forum. The

judgments in the matter of Faqir Chand Gulati vs. Uppal Agencies Private

Limited and Another, (2008) 10 SCC 345; Bunga Daniel Babu vs. Sri

Vasudeva Constructions and Others, (2016) 8 SCC 429 and Skypak Couriers

Ltd. Vs. Tata Chemicals Ltd., (2000) 5 SCC 294 provides for a remedy to the

owner/holder of land before the Consumer Forum in respect of deficiency of

service with reference to construction. There is no bar to entertain the present

petition at the instance of the developer invoking the undisputed arbitration clause.

Hence, the objection raised by the respondents is rejected.

7. The dispute exist between the parties, hence the application is allowed

and Retd. Justice Ashim Kumar Banerjee, resident of 'THNAI', BB 21, New

Town, Kolkata - 700156 (Mobile No. 9830929720) is appointed as arbitrator to

settle the dispute between the parties. The arbitrator shall be at liberty to fix his

remuneration to be shared equally between the parties. Office to obtain declaration

from the above arbitrator in terms of Section 12(1) of the Act in the form

prescribed in VI Schedule of the Act.

8. The application is also accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

KOLKATA 23.12.2021 PA(RB)