Orissa High Court
ARBP/60/2016 on 5 February, 2021
ARBP No. 60 of 2016
09. 05.02.2021 1. This matter is taken up by video conferencing mode.
2. Heard Mr. Suvashish Pattanaik, learned counsel for the
Petitioner and Mr. Pradipta Kumar Ray, the Opposite Party in
person.
3. The present petition under Section 11(6) of the Arbitration and
Conciliation Act, 1996 ('Act') seeks the appointment of an
Arbitrator to adjudicate the disputes between the Petitioner and the
Opposite Party arising out of the agreement dated 7th February,
2012 in respect of sale of housing unit in the project "Krishna Sea
Sight", Puri.
4. The following clause exists in the agreement between the parties
dated 7th February, 2012:
"6. JURISDICTION
(i) Barring circumstances beyond control of the
developer such as strike, riot, civil commotion, act
of god, imposition of restriction/ban and
notification by Government and other authority etc.
if the work steps, completely and consciously for a
period of 3 months then the work shall be deemed
to have been abounded by developer. In such an
event the owner shall give a written notice to the
developer at last 15 days in advance before
declaring the abandonment of the project by the
developer and obtain a reply from the developer in
that connection for taking further action or the
owners end.
(ii) All disputes and differences arising out of the
agreement or in respect of this agreement shall be
referred to the sole arbitration of the arbitrator
appointed by the developer whose decision shall be
final have the summary powers and major not keep
any record or arbitrator's proceedings. The
arbitration proceeding shall be governed by the
provision of Indian Arbitration Act, 1996. With all
modification for the time being in force.
(iii) This agreement shall be subject to
Bhubaneswar jurisdiction only."
5. There are two objections raised by the Opposite Party, who
appears in person. First, he states that he had himself filed a
complaint under the Consumer Protection Act, 1986 (CPA), which
was decided in his favour by the Consumer Forum. He, therefore,
contends that the present proceeding initiated by the Petitioner
under the Act is not maintainable. He submits that the arbitral
proceedings would be "simultaneous" with the one under the CPA,
and therefore not maintainable.
6. The above contention is without merit. Section 3 of the CPA
makes it abundantly clear that the provisions of that Act "shall be
in addition to and not in derogation of the provisions of any other
law". Therefore, the mere fact that the Opposite Party had
approached the consumer forum and succeeded before it, will not
preclude the present arbitration proceedings.
7. The second contention of the Opposite Party is that according to
him, the agreement itself was obtained by fraud. This contention
can well be examined in the arbitration proceedings as clarified in
a recent judgment of the Supreme Court in A. Ayyasamy v.
A. Paramasivam and Ors., (2016) 10 SCC 386.
8. In that view of the matter, the contentions of the Opposite Party
are rejected.
9. The Court accordingly appoints Shri Bijoy Ketan Mohanty,
Former District Judge as the sole Arbitrator to adjudicate the
disputes between the parties. The arbitration shall take place under
the aegis of the High Court of Orissa Arbitration and Mediation
Centre.
10. The arbitration petition is disposed of accordingly. A copy of
this order be communicated to the learned Arbitrator.
11. As the restrictions due to the COVID-19 situation are
continuing, learned counsel for the parties may utilize a soft copy
of this order available in the High Court's website or print out
thereof at par with certified copy in the manner prescribed, vide
Court's Notice No.4587, dated 25th March, 2020.
( Dr. S. Muralidhar )
Chief Justice
S.K.Jena/PA
