I have purchased a flat in resale (open market) in Jan 2014 and all the original agreement was endorsed on my name with no changes. In agreement the booking/allotment date is Aug 2011 and possession should be offered with in 30 months by builder but he is unable to do so even by today ( May 2016). When I raised the issues then builder appointed the arbitrator without my consent and sent notice. Builder said that as per agreement matter should be gone thru arbitration under section 34 as its in the agreement. I have not attended any arbitration proceedings and only replied in email and post in clear words that I am not interested in this arbitration that is called unilaterally by builder so please stop this. I also said in email that deficiencies in service can only be adjudicated by consumer forum under consumer act. But they ignored all my replies and continued the arbitration on 14-Feb-2016 (first proceeding) and till they are proceeding every week without me. Feeling aggrieved I moved to state commission on 3-Mar-2016 . They are just taking dates on dates in state commission but not starting the arguments and saying that state commission is not eligible to entertain my request as arbitration has been already started. Can you please suggest what should I do. Will state commission entertain my pray as arbitration started forcefully without my consent. I am only demanding for possession, compensation and change of flat as they have created parking ramp in front of my flat but as per agreement it should be water front with green park. Thanks
1) disputes which are . amongst the parties to the agreement wherein the terms are stipulated and binds those parties, the dispute resolution will be in accordance with the dispute resolution mechanism agreed into amongst the parties thereto.
2) in your case since you have agreed to arbitration clause in contract disputes would have to be referred to arbitration
Before disputing the construction which causes anxiety to you, better refer to the layout plan and point out the irregularity to the concerned sanctioning authority.
For the consumer state commission you should have applied for injunction order against the arbitration proceedings, it the consumer commission has no power for it then the district court may be approached with an injunction suit to restrain the illegal and unilateral arbitration proceedings in this regard.
Discuss with your lawyer on all such further issues and proceed.
Cant the forceful arbitration proceedings do in parallel with consumer forum ? As act Section 3 of the 1986 Act clearly shows that the remedy available under the 1986 Act is in addition to and not in derogation of the other remedies available. I was reading somewhere that in "Secretary, Thirumurugan ... vs M. Lalitha (Dead) Through Lrs. & ... on 11 December, 2003 Author: S V Patil" Supreme court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action. Please advice. Mr Ajay Sethi, I was reading your other post on Kaanoon.com where you said that consumer can move to consumer court and it doesn't matter that arbitration has been started by builder. Thanks
I was referring to the injunction proceedings restraining the builder to proceed with the arbitration proceedings despite this was objected and a parallel case was filed in the consumer forum.
You may check the provisions on the suggested lines in order to have a interim relief in this regard.
In Fair Air Engineers Pvt. Ltd. And another vs. N.K. Modi [(1996) 6 SCC 385],
SC has held that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
2) consumer forum would entertain your claim . rely upon aforesaid judgment cited herein above
1. You can expedite the hearing before the District Consumer Dispute Redressal Forum or State Forum (if the price of the flat crosses the limit),
2. It is strange that state commission is taking dates after dates to hear the matter,
3. The case can certainly proceed in both the Courts and Consumer commission's direction will be binding on the builder.
1. Yes, yours is a fit case to approach Consumer Forum/Commission,
2. Ask your lawyer to expedite the matter and inform the arbitrator about the hearing before the Consumer Commission,
3. Direction of Consumer Commission will supercede the direction of the Arbitrator..
If the agreement provides for arbitration then arbitration has to be exhausted first before you can knock at the doors of the civil court. This is why you should read the fine print carefully before signing on the dotted line. If the arbitrator has been appointed unilaterally then you can petition the civil court to appoint an independent arbitrator. The award of the arbitrator can be challenged in the civil court which can set it aside. In your case only fora has the jurisdiction to adjudicate the dispute.
