Answer 1.

1. Facts of the Matter

The Prabhudesai signed a contract with "Ajit Kumar, An Independent Builder" to spend Rs.
50 lakhs on a bungalow house in Pune. He agreed to pay the remaining money within a
month after paying the booking cost of Rs. 30 lakh. Ajit Kumar, the builder, had committed
to finishing the project by December 30, 2020, but fell short of this deadline. As Ajit Kumar
was unable to pay back the earnest money, Prabhudesai opted to file a case with the
Permanent Lok Adalat for the resolution of the matter. Ajit kumar raised his objection and
permanent Lok Adalat rejected the complaint on the finding that the authority has no
jurisdiction to entertain complaint in the light of the Real Estate (Regulation and
Development) Act, 2016.

2. Arguments

(i) Neel Kamal Realtors Suburban Private Ltd. Case

In the relevant case, Ajit Kumar objected to Prabhudesai's request to file a complaint with the
Permanent Lok Adalat for the resolution of the dispute. The Permanent Lok Adalat then
rejected, concluding that the authority lacked the authority to hear the complaint in light of
the Real Estate (Regulation and Development) Act, 2016. (RERA). The verdict in Neel
Kamal Realtors Suburban Private Ltd. by the Bombay High Court. In a decision that took the
RERA's provisions into account, Union of India [2018 KHC 3034], it was decided that the
Bombay High Court had taken the RERA's authorities' authority into account and rejected
any attempts to invalidate the provisions.

(ii) Dismissal of Appeal by Permanent Lok Adalat

Permanent Lok Adalat dismissed that appeal holding that its Authority is having no
jurisdiction to entertain this petition. Further it held that the decision of the Bombay High
Court has persuasive force on it and followed the said judgment. It held the following:

 A forum or authority has been established under RERA to handle all real estate-
related issues, such as the selling of plots and the building of flats and apartments.
This authority has oversight of real estate brokers from the time of the transaction

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 until possession is transferred.
 Chapter VII of the Act provides for an effective remedy of appeal before an appellate
tribunal that is chaired by an honourable judge or a retired judge of the honourable
high court. A further appeal against the decisions made by the Appellate Tribunal may
be made to the Hon'ble High Court pursuant to Section 58.
 If the promoters are allowed to file petitions before this Authority, that will
unquestionably undermine the rights of the customers because, in accordance with
Proviso of Section 22 C(l) of the LSA Act, no party to an application made under
Subsection (1) of the Permanent Lok Adalat may assert the jurisdiction of any court in
the same dispute after that application has been made.

The permanent lok adalat said that, the court are bound to follow the finding the Hon’ble
High Court of Bombay held that it did not have jurisdiction to entertain the petition which
is similar to the pertinent matter

(iii) Santosh v. Permanent Lok Adalat & Ors

Similar to the current case, Santosh v. Permanent Lok Adalat & Ors involved a petitioner
who entered into an agreement with respondents for the purchase of an apartment in a
planned apartment complex, but the respondents failed to complete the construction, forcing
the petitioner to withdraw the agreement. when respondents resisted paying the petitioner's
money back. Respondent dismissed the complaint after concluding that, in light of the Real
Estate (Regulation and Development) Act of 2016, the authority lacks the jurisdiction to hear
the complaint (for short RERA). The dismissal of the case brought before the Permanent Lok
Adalat was upheld by the High Court as not precluding the use of the more effective remedy.
The complaint was rejected because the ruling of the Permanent Lok Adalt did not warrant
interfering with the right of judicial review under Article 226 of the Indian Constitution.

3. Conclusion

From the above-mentioned arguments and authorities cited, it can be concluded that the SC
shall upheld the findings of the high courts, thereby stating that the Permanent Lok Adalat
won't have jurisdiction in the matter of RERA and petition would be dismissed by the
supreme court.

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Answer 2:

(A) ARGUMENTS ON BEHALF OF MR. MUKHERJEE

Section 89 of Civil Procedure Code, 1908

Section 89 deals with methods of case settlement outside of the legal system. According to
Clause 1 of the Section, the parties may choose arbitration, conciliation, judicial settlement, or
mediation if the court determines that the matter may be resolved through one of the other
mechanisms of conflict resolution. The Arbitration and Conciliation Act of 1996 would be
followed for procedural regulations if the matter has been referred for arbitration or
conciliation, according to clause 2 of the section. The Legal Services Authority Act of 1987's
requirements will be applied in the instance of Lok Adalat.

 In Jagdish Chander v. Ramesh Chander, the Supreme Court held: “It should not be
overlooked that even though Section 89 of CPC mandates courts to refer pending suits
to alternative dispute resolution processes, there cannot be a reference to arbitration
even under Section 89 unless there is mutual consent of all parties”.

 In Salem Advocate Bar Association v. Union of India, the Supreme Court

concluded that sending parties to ADR is not always essential. The ADR Process is
not necessary in omitted circumstances. All other issues demand ADR. In accordance
with Section 89 of the CPC, a civil court cannot refer a case to arbitration unless all
parties consent.

 Afcon Infrastructure Vs. Cherian Verkay Construction, The Civil Procedure Code
of 1908's Section 89 applied to the Afcon case in its entirety. The Hon. Following a
series of appeals, the Supreme Court of India ruled that Section 89 assumes that the
parties did not enter into an arbitration agreement. The remedies under Section 89 may
only be invoked in situations when the agreement has an arbitration provision. In this
situation, the arbitration shall be conducted in accordance with Section 8 or Section 11
of the Arbitration and Conciliation Act.

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(B) ARGUMENTS ON BEHALF OF MR MOTEWALA

Section 12A of Commercial Court Act, 2015.

Pre-institution Mediation and Settlement of Commercial Disputes is addressed under Section

12A of the Commercial Court Act, 2015. For matters involving disputes of Rs. 3,00,000 or
more in value, the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018
outline the pre-institutional mediation process. It states, “A suit, which does not contemplate
any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the
remedy of pre-institution mediation in accordance with such manner and procedure as may be
prescribed by rules made by the Central Government”. In particular, Section 12A of the
Commercial Court Act discusses the fundamentals of resolving a disagreement through pre-
institution mediation outside of the legal system. According to the section's first clause, the
plaintiff cannot turn to the courts of law unless the situation is urgent or unless he has used
every appropriate pre-institution mediation remedy.

 In the case of Shahi Exports Pvt. Ltd. Vs. Gold Star Line Ltd., it was decided that
Section 12A of the Commercial Court Act should not be read to necessitate the
beginning of pre-institution mediation proceedings. For any reason if the parties want
to settle the dispute outside the courts of law by way of mediation, they can request the
court for the same and if the parties to the dispute do not consent to instituting any
mediation proceedings, they cannot be compelled to do the same as this would directly
mean the suffocation of the right of the parties to access the courts.

 On the other hand, Patil Automation Pvt. Ltd. Rakheja Engineers Pvt, the Supreme
Court ruled in opposition to the High Court of Madras' decision in the Shahi Export
case. According to the court, Section 12A was established by the parliament in 2018
with the intention of implementing the pre-institutional process. The supreme court
ruled that no one has a carte blanche right to file a lawsuit in civil court and that
granting such a right would utterly undermine Section 12A of the Parliament's aim.
Further, the court determined that Section 12A is an obligatory provision under the
procedural rules and that any lawsuit that violates the requirement would be dismissed
in accordance with Order VII Rule 11 of the Civil Procedure Code.

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In its decision, the Supreme Court emphasised that Section 12A is more than merely a
collection of procedures. In order for Section 12A to be more than a simple procedural rule,
the plaintiff would need to exhaust pre-institution mediation. This would have advantages for
both the parties and, more crucially, the justice delivery system as a whole. It would be
obvious from the layout and intent of the Act, as revised in 2018 with the addition of Section
12A, that Parliament intended to give it a mandatory flavour.

(C) CONCLUSION

According to the ruling in the Afcon Case, Salem Bar Case, and Jagdish Chander Case, the
foregoing circumstance cannot be sent to arbitration since the parties to the dispute,
Mukherjee and Motewala, do not jointly consent to arbitration proceedings. Additionally,
there was no arbitration agreement, therefore the court was unable to refer the dispute to
arbitration. Section 89 also makes it clear that the whole purpose of the provision is to give
the parties an opportunity to settle the disputes outside the courts, only if they consent. Hence,
since there is no arbitration agreement and no mutual consent between the parties to the
dispute, the matter cannot be referred to arbitration. Hence, Mr. Mukherjee will be successful
in his special leave petition.