State Consumer Disputes Redressal Commission
Chandrima Moulik vs Sri Pintu Sana on 16 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/132/2017 (Arisen out of Order Dated 21/04/2017 in Case No. CC/622/2016 of District Kolkata-III(South)) 1. Chandrima Moulik D/o Lt. Prafulla Ranjan Moulik, N-358, Patuli Flat no.22, 2nd Floor, P.S.- Purba Jadavpur, Kolkata - 700 096. 2. Sri Prafulla Ranjan Moulik S/o Lt. Akhileshwar Maulik, A/21, Baghajatin Colony, P.S. Jadavpur, Kolkata -700 092. ...........Appellant(s) Versus 1. Sri Pintu Sana S/o Nakul Chandra Sana, 117A/55, Sarat Ghosh Garden Road, P.S. - Kasba, Kolkata - 700 031. 2. Smt. Nilima Saha W/o Lt. Pinaki Ranjan Saha, 119, Swami Vivekananda Road, P.S. - Jadavpur, Kolkata - 700 032. 3. Sri Sudam Naskar S/o Bholanath Naskar, B/70, East Jadavpur, Santoshpur, P.S. Survey Park, Kolkata -700 075. 4. M/s. Sonartari Enterprise 119, Swami Vivekananda Road, P.S. Jadavpur, Kolkata -700 032. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Petitioner: Mr. Dipayan Kundu, Advocate For the Respondent: Mr. Pranab Kr. Bhattacharya, Advocate Mr. Subhankar Biswas, Advocate Mr. Subhankar Biswas, Advocate Mr. Subhankar Biswas, Advocate Dated : 16 Jan 2018 Final Order / Judgement
Date of filing: 01.06.2017 Date of hearing: 03.01.2018 The instant Revisional Application under Section 17(1) (b) of the Consumer Protection Act, 1986(hereinafter referred to as 'the Act') is at the behest of the Opposite Party No.5/Landowner to assail the Order No. 11 dated 21.04.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III (for short, Ld. District Forum) in Consumer Complaint No.622 of 2016.
The Opposite Party No.1 herein being Complainant lodged a complaint under Section 12 of the Act before the Ld. District Forum on the allegation of deficiency in services on the part of Developer and its partners ( OP Nos. 1 to 3) and landowners (OP Nos. 4 to 5) in respect of a flat measuring about 400 sq. ft. on the 3rd floor at Premises No.122, Kalikapur Road, P.S.- Purba Jadavpur, Kolkata - 700099, Dist- South 24 Parganas with prayer for a direction upon the opposite parties to deliver possession of the subject flat and to execute the Deed of Conveyance.
The materials on record indicate that the OP No.1/Complainant entered into an Agreement for Sale with OP Nos. 2 & 3 and the said Agreement for Sale was duly confirmed by OP Nos. 4 & 5 on a consideration of Rs.11,65,000/-. The complainant has already paid Rs.8,50,000/- as part consideration amount. The non-delivery of possession and non-execution of Sale Deed compelled the complainant to knock the door of the Ld. District Forum.
After entered appearance the opposite party no.5 have not yet filed written version but by filing an application challenged the maintainability of the proceeding on the ground that she and OP No.4 was not aware about the Agreement for Sale and the Development Agreement executed in between them and the developer was expired on 08.10.2008.
By the impugned order, the Ld. District Forum rejected the said application which prompted the OP No.5 to come up in this Commission with the present appeal.
The revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under:-
"to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity".
The above provision makes it quite clear that the revisional jurisdiction conferred upon this Commission is limited only to the extent of jurisdictional error or material irregularity in passing the order impugned. Admittedly, there is no jurisdictional error on the face of the record.
Now, we shall dwell upon to consider as to whether there was any material irregularity in passing the order impugned. On perusal of the impugned order, I find that the revisionist/OP No.5 took several pleas before the Ld. District Forum like - (a) in view of provision of Section 12A of West Bengal Building (Regulation and Promotion of Construction and Transfer by Promoters) Act, 1993 (in short, 'Promoters Act, 1993') the District Forum had no jurisdiction to entertain the complaint and (b) in view of provisions of Section 8 of Arbitration & Reconciliation Act, 1996, the Ld. District Forum should have referred the dispute to the Arbitrator.
For proper understanding of the situation, it would be worthwhile to reproduce the provisions of Section 12A of Promoters Act, 1993 which provides -
"12A(1). No Civil Court shall have any jurisdiction to entertain or decide any question relating to matters arising under any provisions of this Act or the rules made thereunder .....".
Therefore, the question comes up whether a Forum constituted under the Act be termed as 'Court'. The statement of objects and reasons and the scheme of the Act make it quite clear that the main objective is to provide for better protection of the interests of the consumer. To achieve that purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act, by establishing quasi-judicial Forums at the District, State and National level with wide range of powers vested in them. The rigors of the Indian Evidence Act, 1872 and the Civil Procedure Code are not applicable to the proceedings before these quasi-judicial bodies. Therefore, having due regard to the scheme and purpose sought to be achieved, viz. better protection of interest of the consumers, the provisions of the Act have to be given purposive, broad and positive construction, more so, when Section 3 of the Act provides that remedy under the Act is in addition to and not in derogation of any other provisions of law.
In a decision reported in 2016 (3) CHN (Cal) 464 [Md. Akbar Kamal - Vs. - Tabraiz Alam Siddiqui] the Hon'ble Calcutta High Court after considering the several decisions passed by it earlier in the case of Bithi Das - Vs. - Debabrata Majumdar reported in 2014 (2) ICC 853, the decision in the case of Rita Das - Vs. - Jayashri Ghosh reported in 2012 (3) CLJ 291 and several other decisions of Hon'ble Supreme Court has observed that this Commission do have jurisdiction to entertain the complaint.
In a landmark decision reported in AIR 2003 SC 1043 [State of Karnataka - Vs. - Vishwabarathi House Building Co-op Society & Ors.] the Hon'ble Supreme Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the Act are required to be interpreted as broadly as possible and the Fora under the Act have jurisdiction to entertain a complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis. The Hon'ble Supreme Court proceeded to observe that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an expressed provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum established under some enactment. The Hon'ble 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 OP No.5/Revisionist has also taken a stand that in view of Arbitration Clause in the Agreement, a Forum constituted under the Act has no jurisdiction to entertain the complaint in view of provision of Section 8 of Arbitration and Conciliation Act.
In the case of DLF Ltd. - Vs. Mridul Estate Pvyt. Ltd. reported in III (2013) CPJ 439 the Larger Bench of Hon'ble National Consumer Commission considering several decisions of Hon'ble Supreme Court reported in - (1) the case of SBP & Co (supra), (2) National Seeds Corporation Ltd. - Vs. - M. Madhusudan Reddy & Anr., I (2012) CPJ 1 (SC), (3) Lucknow Development Authority - Vs. - M.K. Gupta, III (1993) CPJ 7 (SC), (4) Skypark Couriers Ltd. - Vs. - Tata Chemicals and several other judgements has observed that the Consumer Fora constituted under the C.P. Act are not bound to refer the dispute raised in the complaint on an application filed under Section 8 of the 1996 Act seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties. The OP in CC/188/2010 preferred an appeal in the Hon'ble Supreme Court and the Hon'ble Supreme Court in the case of Rosedale Developers Pvt. Ltd. reported in (2015) 1 WBLR(SC) 385 has held that the National Commission did not commit any error by holding that the remedy of arbitration available to the complainant does not bar the jurisdiction of the Consumer Fora and the Consumer Fora are not under an obligation to refer the matter to the Arbitral Tribunal.
After amendment to Section 8 of Arbitration Act, 2015 a bunch of applications filed by the developers/builders and in disposing of the same the Larger Bench of the Hon'ble National Commission by an order dated 13.07.2017 (Aftab Singh - Vs. - Emaar MGF Land Ltd. & Anr.) has observed that in the context of consumer jurisprudence, the Hon'ble Supreme Court has not disturbed the earlier opinion regarding the arbitrality of consumer disputes rendered in the pre-amendment era rather it has affirmed the protection granted to the consumers from private resolution. After a detailed discussion with reference to several judgement of the Hon'ble Supreme Court including the decision reported in (2016) 10 SCC 386 (A. Ayyasamy - Vs. - A. Paramasivam & Ors.) the Hon'ble National Commission has arrived at the conclusion that in light of overall architecture of the Consumer Act and Court - evolved jurisprudence, amended Sub Section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to arbitration in terms of the arbitration agreement. Consequently, the Hon'ble National Commission reject the arguments on behalf of the builder and hold up that an arbitration clause between the complainant and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the 1996 Act.
In a decision reported in (2008) 10 SCC 345 (Faqir Chand Gulati - Vs. - Uppal Agencies Pvt. Ltd. & Anr.) the Hon'ble Supreme Court while discussing about the remedy available to a landowner in Paragraph-23 has observed that where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under the Consumer Protection Act for relief as a consumer against the builder as a service provider. In other words, the revisionist/OP No.5 being landowner cannot stand in the way of a purchaser of getting relief when the landowner empowered the developer/builder by executing an agreement.
Considering all the above and having heard the Ld. Advocates appearing for revisionist, OP No.1 and OP Nos. 2 to 4 I have no hesitation to hold that the instant revisional application has been filed just to cause delay and harass a 'consumer' as defined in Section 2(1)(d) of the Act and as such the revision petition deserves rejection with cost of Rs.10,000/- out of which Rs.5,000/- to be paid by the revisionist/OP No.5 to the OP No.1/complainant and the balance amount of Rs.5,000/- to be paid in the State Consumer Welfare Fund.
Consequently, the revision petition is dismissed on contest with cost of Rs.10,000/- out of which Rs.5,000/- to be paid by the revisionist/OP No.5 to the OP No.1/complainant and the balance amount of Rs.5,000/- to be paid by way of bank draft in the State Consumer Welfare Fund.
The impugned order is hereby affirmed.
The parties are directed to appear before the Ld. District Forum on 14.02.2018 positively and on that date the OP No.5 must show the receipts showing payment of costs otherwise she will be debarred from contesting the case. It is made clear that all my observations made hereinabove are tentative and the Ld. District Forum should not be influenced by any part of the order and will proceed to decide the case on merit in accordance with law.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III forthwith for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER