Ashis Kumar Chakraborty, J. - (1.) The subject matter of challenge in this revisional application is an order dated September 02, 2016 passed by the State Consumer Dispute Redressal Commission, West Bengal (in short the State Commission ), in Misc. Application No. 622 of 2016 on application of the revisional petitioner under Section 8 of the Arbitration and Concilliation Act, 1996 (hereinafter referred to as the Act of 1996 ). By the impugned order, the learned State Commission rejected the said application.
(2.) Shorn of details, the facts relevant for the decision in the present revisional application, upon consideration of the propriety of the impugned order passed by the learned State Commission, are that the opposite party no. 1 has filed the Consumer Case No. CC/235/13 (hereinafter referred to as the said complaint ) against the petitioner and the opposite party nos. 2 and 3, before the learned State Commission under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act of 1986 ) claiming various directions against the petitioner and the opposite party nos. 2 and 3, including compensation and costs. In the complaint it is the case of the opposite party no. 1 that the petitioner has constructed a housing complex namely, Diamond City West at Premises No. 18, Hochimin Sarani, P.S. Thakurpukur, Kolkata over a plot of land at measuring of area 35 bighas approximately, comprising 10(ten) buildings. The petitioner, through the opposite party no. 2 published various advertisements in newspapers and various printed in visual media about construction of condominium of the said housing complex comprising residential units and the same shall have swimming pools, basketball court, volley ball court, tennis court, gymnasium, children's playground and various other amenities. According to the opposite party no. 1, acting upon the said representation held out by the petitioner and the opposite party no. 2, by a registered conveyance dated August 03, 2012 he purchased a flat being Flat No. 12D of Tower-10 of the said complex but the petitioner and opposite party no. 2 have not completed the construction of the swimming pool, tennis court, club house, cultural hall and other build etc. The opposite party no. 1 further alleged that it was the obligation of the petitioner to hand over the charge of the opposite party no. 3, the residents' association, which looks after the maintenance and other dealings and transactions with regard to the said complex to the flat owners themselves, but the petitioner has failed to discharge such obligation and there are various deficiencies of the services rendered by the opposite party no. 3. In the said complaint, the opposite party no. 1 further alleged various deficiencies of services and various wrongful and illegal acts allegedly committed by the petitioners and the opposite party nos. 2 and 3 towards other flat owners of the said complex and himself. The directions sought and money claims raised by the opposite party no. 1, against the petitioner and the opposite party nos. 2 and 3 are particularly stated in paragraph 31 of the complaint petition filed before the learned State Commission. In the said complaint case, the petitioner, as the opposite party no. 1 filed the application under Section 8 of the Act of 1996, alleging that the opposite party no. 1 purchased the said flat, on the basis of an allotment letter issued to him which contains an arbitration agreement providing that all disputes arising out of allotment and the terms and conditions applicable to the said allotment shall be referred to the named sole arbitrator and claimed that the parties to the said complaint case be referred to the arbitration. As mentioned above, by the impugned order the learned State Commission rejected the said application filed by the petitioner. From the records it appears that the allotment letter, containing an arbitration agreement, was issued by the petitioner to the opposite party no. 1 but in the said complaint filed by before the learned State Commission the opposite party no. 1 complainant has claimed various directions, including a direction for payment of compensation and costs against the petitioner as well as the opposite party nos. 2 and 3.
(3.) At the very outset, Mr. Debnath Ghosh, learned advocate appearing for the opposite party no. 1 raised strong objection with regard to the maintainability of the revisional application under Article 227 of the Constitution of India. Since the question of maintainability of the present revisional application was raised on behalf of the opposite party no. 1 this Court allowed the learned counsel appearing for the opposite party no. 1 to make his submission on the said issue. He strenuously urged that in view of the incorporation of clause (a) in Section 37(1) of the Act of 1996, which has come into force with effect from October 23, 2015 an order of rejection of an application under Section 8 of the Act of 1996 is an appealable order and inasmuch as the petitioner filed the said application after the incorporation of the remedy of the petitioner as against the impugned order lies in filing an appeal before the learned National Commission. Therefore, according to him, the present revisional application under Article 227 is not maintainable. Relying on the decision of the Supreme Court in the case of Nivedita Sharma v. Cellular Operators Association of India and Ors. reported in (2011) 14 SCC 337 and submitted that in view of the statutory remedy provided under Section 37(1)(a) of the Act of 1996 the petitioner cannot maintain this revisional application under Article 227 of the Constitution of India.;