2018 Supreme(SC) 1235

SUPREME COURT OF INDIA
UDAY UMESH LALIT, ASHOK BHUSHAN , JJ.
M/S. EMAAR MGF LAND LIMITED – APPELLANTS)
VERSUS
AFTAB SINGH – RESPONDENTS)
REVIEW PETITOIN (C) Nos. 2629-2630 OF 2018 IN CIVIL APPEAL NOS.23512-23513 OF 2017
Decided On : 10-12-2018

IMPORTANT POINTS
Consumer forum is not duty bound to refer matter to arbitration on an application u/s 8.
Arbitration act gives predominance to law making disputes non arbitrable.
A dispute cannot be referred to arbitration in part.
Section 8(1) and 11(6-A) of Act 1996 minimize scope of judicial authority to refuse reference to arbitration.
Disputes not capable of being decided by arbitration include those before Consumer fora.
A party to dispute having option of arbitration or special remedy under Act 1986 is entitled to exercise option between arbitration and consumer fora. However, once option of Consumer fora is exercised judicial authority can refuse to refer the parties to arbitration.

Headnote:(a) Consumer Protection Act, 1986 – Section 3 r/w section 8 (prior to amendment 2015), Arbitration and Conciliation Act, 1996 – Act enacted for protection of consumer – Its provisions in addition to and not in derogation of the provisions of any other law for the time being in force – Consumer fora – Judicial authority – Existence of arbitration agreement – Not a bar on exercise of power under Act 1986 – A complainant under Act 1986 cannot be denied relief merely because an arbitration agreement exists – Consumer forum not duty bound to refer matter to arbitration on an application u/s 8 – Complaint under Consumer Protection Act being a special remedy, proceedings before Consumer Forum shall continue despite existence of arbitration agreement the proceedings. (Para 15, 16, 17, 18, 19, 22, 25, 27)

       (1994) 1 SCC 243; (2004) 1 SCC 395; (1996) 6 SCC 385; (2000) 5 SCC 294; (2012) 2 SCC 506; (2018) 11 SCC 337; (2011) 5 SCC 532 – Relied upon

       (b) Arbitration and Conciliation Act, 1996 – Section 2(3) – Predominance to law making disputes non arbitrable. (Para 31)

       (2011) 5 SCC 532; A. Ayyasamy – Relied upon

       (c) Arbitration and Conciliation Act, 1996 – Section 8 – Prior to amendment 2015 – Several conditions were required to be satisfied before invoking section 8 – On such satisfaction court was obliged to refer the parties to arbitration – In certain circumstances matters, however, were not required to be referred to arbitration – A dispute not referable to arbitration in part. (Para 42, 43, 44, 45)

       (2000) 4 SCC 539; (2003) 5 SCC 531 – Relied upon

       (d) Arbitration and Conciliation Act, 1996 – Section 8(1) and 11(6-A) (after amendment) – Court should and need only look into one aspect for referring a dispute to arbitration – Existence of an arbitration agreement – Minimising scope of judicial authority to refuse reference to arbitration.

       (Para 47, 49)

       Duro Felguera, S.A.; AIR 2018 SC 3041: (2018) 6 SCALE 621: 2018 SCC Online SC 487; (2011) 5 SCC 532 – Relied upon

       (e) Arbitration and Conciliation Act, 1996 – Section 8 – Words “notwithstanding any judgment, decree or order of the Supreme Court or any Court” – Refers only to the precedents laying down that the judicial authority while making reference under Section 8 shall be entitled to look into various facets of arbitration agreement, subject matter of the arbitration, whether the claim is alive or dead, and whether the arbitration agreement is null and void – Disputes not capable of being decided by arbitration include those before Consumer fora. (Para 52, 54)

       (f) Consumer Protection Act, 1986 – Section 3 r/w section 8 (after amendment 2015), Arbitration and Conciliation Act, 1996 – A party to dispute having option of arbitration or special remedy under Act 1986 – Entitled to exercise option – Once option of Consumer fora is exercised judicial authority can refuse to refer the parties to arbitration. (Para 55)

       Facts of the case:

       The appellant is a company which has acquired and purchased land in District Mohali, Punjab with a view to set up and develop thereon an integrated township. The respondent submitted an application to the appellant for allotment of a villa in Sector 106, Mohali. A Buyer’s agreement was entered dated 06.05.2008 between the appellant and the respondent. In the Buyer’s agreement, there was an arbitration clause providing for settlement of disputes between parties under the 1996 Act. On 27.07.2015, the respondent filed a Complaint No. 701 of 2015 before the NCDRC against the appellant

       The appellant also filed an application under Section 8 of the 1996 Act for referring the matter to arbitration for and on behalf of the appellant.

       The Three Members Bench have considered the submissions of the parties in detail and held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

       Accordingly, the applications filed by the appellant under Section 8 of the 1996 Act were rejected.

       the appellant filed Civil Appeal No. 23512-23513 of 2017 challenging the judgment of Larger Bench of NCDRC dated 13.07.2017 as well as the consequential order dated 28.08.2017. Both the appeals were dismissed. The appellant has filed these review petitions to review these judgments.

       Finding of the Court:

       Impugned judgment does not require review.

       Result: Review petition dismissed.