G. Sreekanth vs M/S. Kasi Housing and Development[i]
Facts of the Case
The undisputed facts of the case are that there is a registered sale deed dated 05.11.2001 in which the plaintiff has bought an undivided share of 104.80 sq. ft or thereabouts from and out of 'total land spanning up to 4.91 cents. After this, the plaintiff entered into a construction agreement dated 29.01.2003 with the lone respondent for construction of a flat/apartment admeasuring 440 sq. ft on the second floor of the proposed construction to be put up in said land.
This said construction agreement provides for completion of said flat by February 2003; that it provides for consideration of Rs.2,33,320/-. The said agreement contained an arbitration clause as its Clause 16. The respondent issued a notice dated 01.07.2010 making it clear that the petitioner has paid Rs.2,14,414/- calling upon the petitioner to pay the balance and what according to the respondent was a variant amount. The petitioner sent a reply legal notice dated 19.08.2010; that thereafter the petitioner has filed a complaint in the District Consumer Dispute Redressal Forum, Chennai. Thereafter, the said complaint was disposed of via order dated 05.06.2017 by the said redressal forum. Thereby the impugned arbitral award came to be passed by a sole Arbitrator which was appointed by the respondent to constitute the Arbitral Tribunal on 26.11.2016. Hence, the plaintiff has presented this plaint on 02.01.2017 besetting the impugned arbitral award mentioned above.
The issue in front of the court was whether such a case which is barred by limitation as under section 34 of the Arbitration and Conciliation Act, 1996 can still be tried even if provisions of section 8 of the same Act which allow the Court to take on a case wherein there is an agreement having an arbitral agreement, are not invoked.
The judgment of the Court
The Court opined that applications under Section 34 of the Act cannot be pending indefinitely, dismissal for default/non-prosecution can also be contributing to avoidable delays as there is likely hood of the restoration process. In any event, as already alluded to supra, there does not impede disposal of the present plaint on merits as Order XLI Rule 17(1) does not apply to the present plaint as it is not an appeal.
The opposite party before the consumer forum has subjected itself to the jurisdiction of the consumer forum without resorting to an invocation of Section 8 of A and C It is clear that Section 8 can be filed before any judicial authority. Therefore, nothing prevented the respondent, as the opposite party before Consumer Forum, from invoking Section 8 of the A and C Act before the same forum. The respondent not having invoked Section 8 is fatal as that equivalent to the respondent submitting itself to the jurisdiction of the consumer forum.
There cannot be two orders one by a judicial forum and the other by a private Tribunal (Arbitral Tribunal) concerning the same dispute between the same parties. This also vitiates the impugned award. The Hon’ble Court further announced that it is clear that the impugned award is liable to be set aside as being vitiated as it conflicts with public policy owing to being hit by limitation and owing to non-invocation of Section 8 of the Act and submission to the jurisdiction of the Consumer Forum and hence, the present plaint is allowed.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.