State Consumer Disputes Redressal Commission
Merlin Group ,Merlin Oxford vs Sri Bharat Kumar Chamaria on 27 January, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Miscellaneous Application No. MA/265/2015 In Complaint Case No. CC/279/2013 1. Merlin Group ,Merlin Oxford 22, Prince Anwar Shah Road, Kolkata - 700 033. ...........Appellant(s) Versus 1. Sri Bharat Kumar Chamaria S/o. Late Motilal Chamaria, Flat no.R-10, Block-5(Aral), Merlin Warden Lake View, 104, Bidhannagar Road, Kolkata-700 067. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Ms. S. Das , Advocate For the Respondent: Mr. Prabir Basu, Advocate ORDER
No. 9/27.01.2016 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This order relates to hearing on MA/263/2015 in CC/277/2013, MA/264/2015 in CC/278/2013, MA/265/2015 in CC/279/2013, MA/266/2015 in CC/280/2013, MA/267/2015 in CC/281/2013, MA/268/2015 in CC/106/2014, MA/269/2015 in CC/107/2014, MA/270/2015 in CC/108/2014, MA/271/2015 in CC/109/2014, MA/272/2015 in CC/110/2014, MA/273/2015 in CC/111/2014 challenging the maintainability of the complaint cases on the ground that in view of the provisions contained in section 6 and section 12A of the West Bengal Building (Regulation of Promotion and Construction and Transfer by Promoters) Act, 1993 the complaints are not maintainable.
It is contended that the complaint cases were filed in 2013 and the said Act was passed in 1993 whereby the jurisdiction lies with the Special Officer as envisaged in section 6 of the Act. It is contended that section 12A operates bar to the jurisdiction of the Consumer Fora.
The Learned Counsel for the Complainant has opposed the Miscellaneous Applications and has referred to the decisions of the Hon'ble National Commission in RP No.2540 of 2004 [Basudeb Banerjee & Anr. vs. Amlan Bhattacharya & Ors.]; RP No.2541 of 2004 [Basudeb Banerjee vs. Ranindra Kumar Dutta & Anr.]; the decision of the Hon'ble High Court, Calcutta in C.O. No.823 of 2013 [M/s Vindhya Projects Pvt. Ltd. vs. Sri Alok Kumar Basu & Ors.]; IV (2012) CPJ 1 (SC) 1 [Cicily Kallarackal vs. Vehicle Factory]; Civil Appeal No.4290 of 2003 (SC) [E.I.C.M. Exports Ltd. vs. South Indian Corporation (Agencies) Ltd. & Anr.]; decision of the Hon'ble Apex Court in SLP (17068 - 17069/2010) [M/s Advance Scientific Equip. Ld. & Anr. vs. West Bengal Pharma Photochemical Dev & Anr. dated 09/07/10; Civil Appeal No.10706 of 2011 (arising out of SLP (C) No.17213 of 2010) [Nivedita Sharma vs. Cellular Operators Assn. of India & Ors.]; RP 2509 of 2012 (NC) [HDFC Bank Ltd. vs. Subhasish Ray].
We have heard the submission made by both sides and perused the papers on record. The Learned Counsel for the Complainant has submitted that the matter pending before the Hon'ble High Court, Calcutta was disposed of vide APOT No.382 of 2015 GA No.21718 of 2015 [Merlin TF Lake View & Ors. vs. Ruchir Jain & Ors.] and liberty has been given to proceed in the Consumer Fora. It is the main contention of the Learned Counsel for the Misc. Applicants that there is bar of jurisdiction u/s 12A of the West Bengal Building (Regulation of Promotion and Construction and Transfer by Promoters) Act, 1993 and this Commission has no jurisdiction to entertain the petition of complaint.
In this connection we are inclined to place reliance on the decisions cited by the Learned Counsel for the Complainant in RP No.2540 of 2004 and 2541 of 2004 [Basudeb Banerjee & Anr. vs. Amlan Bhattacharya & Ors.] wherein the Hon'ble National Commission held that the Fora under the Consumer Protection Act are not the Civil Courts though they have trappings of Court and that the bare perusal of sub-section (i) of section 12A would show that it creates bar on jurisdiction of Civil Court and not the Consumer Fora. In another decision reported in 2012 (4) CPR 191 (NC) [Arun Khanna vs. Smt. Sashi Sharma & Ors.] the Hon'ble National Commission relying on a decision of the Hon'ble Apex Court reported in AIR 2009 (SC) 3127 [E.I.C.M. Exports Ltd. vs. South Indian Corporation (Agencies) Ltd. & Anr.] held that complaint before Consumer Forum was not a suit. The question of maintainability of consumer complaint before this Commission was raised in FA 1030 of 2013 wherein it was held that the bar of jurisdiction u/s12A was not applicable in consumer cases. This view was upheld by the Hon'ble National Commission in RP 1035 of 2015 [Sri Pradip Ranjan Mallick & Anr. vs. Sri Ratan Guria decided on 05/05/15]. The Learned Counsel for the Complainant has referred to the decision of the Hon'ble Apex Court in SLP (Civil) (17068 - 17069/2010) [M/s Advance Scientific Equip. Ld. & Anr. vs. West Bengal Pharma Photochemical Dev & Anr. (supra) dated 09/07/10 wherein it has been held as follows:
"We are further of the view that the Petitioners' venture of filing petition under Article 227 of Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner u/s 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction .......".
The Hon'ble National Commission in the decision reported in 2008 CTJ 954 (NC) [NCDRC Bar Association (Regd.) vs. Davinder Malhotra & Ors.] held that the Consumer Fora in the country are bound to follow the decisions rendered by the National Commission in the consumer cases filed under the provisions of C. P. Act, 1986. The decision of the Hon'ble National Commission, therefore, is a binding precedent on this Commission and relying on the aforesaid decisions, we are unable to accept the contention of the Learned Counsel for the Misc. Applicants regarding the bar of jurisdiction u/s 12A of the said Act.
The aforesaid Miscellaneous Applications are dismissed. Interim order already passed will continue till the next date. To 22/02/16 for filing W.V. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER