Pradip Kumar Ray vs Srikrishna Estate And ...
2021 Latest Caselaw 11858 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.34779 Of 2021
                           (Through hybrid mode)

        Pradip Kumar Ray                      ....            Petitioner

                                    Mr. S.P. Mishra, Senior Advocate

                                  -versus-

        Srikrishna Estate and Construction    ....       Opposite Party
        Pvt. Ltd.


                  CORAM: JUSTICE ARINDAM SINHA
                                  ORDER

17.11.2021 Order No.

1. 1. Mr. Mishra, learned advocate appears on behalf of petitioner.

He submits, his client is entered into an agreement to purchase a flat.

Full agreed consideration was paid. The developer asked for more

money. Dispute arose on his client seeking possession and the

developer making claim in addition to agreed consideration. His client

approached the State Consumer Forum. The developer thereafter

wanted reference to arbitration contending that the agreement had the

clause. The application was rejected and the Disputes Redressal Forum

continued with the adjudication. It resulted in order for refund of the

consideration along with interest, costs and damages. The developer

approached the National Commission on appeal. Initially 100%

// 2 //

deposit as condition for stay was directed, on failure of which the

condition was halved. The appeal before the National Commission is

pending. Mr. Mishra submits, even the reduced condition has not been

fulfilled.

2. The developer then made application under section 11 in

Arbitration and Conciliation Act, 1996 requesting the Hon'ble Chief

Justice to appoint arbitrator. By order dated 5th February, 2021

arbitrator was appointed. Objection of his client to the appointment on

ground that adjudication has already taken place under the Consumer

Protection Act, 1986, was dealt with in the order of appointment as

reproduced below:-

"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."

3. Mr. Mishra relies on judgment of Supreme Court in Vidya Drolia

-Vrs.- Durga Trading Corporation reported in (2021) 2 SCC 1,

whereby the question regarding arbitrability of disputes was settled by

the Larger Bench. He relies on paragraph-224, reproduced below:-

// 3 //

"224. In Emaar MGF Land Ltd. v. Aftab Singh, this Court held that the Consumer Protection Act cases are not arbitrable. On a perusal of the judgment, no doubt reliance was place on Booz Allen case and there is some discussion on the scope of Section 8 of the Arbitration Act. However, the thrust of the reasoning is not on the question of arbitrability, rather it was on the fact that the Consumer Protection Act, had an implied bar for referring a matter to arbitration, being a special legislation. The difference is subtle, yet it is required to be recognized that the Consumer Protection Act, impliedly barred the application of the Arbitration Act."

He submits his client is entitled to ad-interim stay of arbitration

proceeding, pending decision on the writ petition.

4. Court will consider prayers in the writ petition upon

issuance of notice. Petitioner will put in requisites for service by speed

post with AD. Service affidavit be filed. Petitioner has liberty to

produce this order before the Tribunal and pray for adjournment.

5. List on 1st December, 2021.

(Arindam Sinha) Judge Sks