State Consumer Disputes Redressal Commission
Smt. Kavita Kothari vs Samriddhi Developers Pvt. Ltd. on 17 February, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.CC/106/2012 [MA/447/2013 arising out of CC/106/2012] DATE OF FILING:27/07/12 DATE OF ORDER:17/02/14 COMPLAINANT : Smt. Kavita Kothari W/o-Rajiv Kothari Metro Heights 114 Lal mohan Bhattacharya Road Kolkata-700 014 OPPOSITE PARTIES : 1) Samriddhi Developers Pvt. Ltd. Ajad Hind Garh, Salua More Rajarhat Road, P.S. Airport District-North 24-Parganas Kolkata-700 136 2) Smt. Swapna Rakshit W/o-Haridas Rakshit 3) Smt. Anuradha De W/o-Haran Chandra Dey Nos.2 & 3 are residing at 48 H. B. G. Road Anukul Bhavan Joynagar 2nd Lane P.O. Agartala, Tripura West Tripura 4) Smt. Sutapa Miller W/o-Brazil Miller House No.1237, Sector-49B Puspak Complex Chandigarh-160 047 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy HONBLE MEMBER : Sri Tarapada Gangopadhyay FOR THE COMPLAINANT : Mr. Rajani Kant Mishra Ld. Advocate Mr. Anshuman Gupta Ld. Advocate Ms. Anuva Awasthi Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. Prasant Agarwal Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This order relates to the hearing on the point of injunction already granted on the basis of MA 447 of 2013. Written objection has been filed by the OP No.1.
The Complainant by filing MA 447 of 2013 prayed for restraining OP No.1 and its main agents, servants and assigns from dealing with and/or transferring and/or encumbering and/or alienating the property as mentioned in Schedule D and E and/or from creating any third party interest in respect thereof and/or transferring possession thereof to any third party and also for an interim order to that effect.
The OP No.1 has filed the written objection.
It has been submitted by the Learned Counsel for the OP No.1 that the Complainant filed a Civil Suit earlier praying for specific performance of contract and the Hon'ble High Court, Calcutta was pleased to pass an order of injunction.
It is contended that the Learned Trial Court rejected the plaint and the appeal has been preferred before the Hon'ble High Court, Calcutta. It is contended that the Complainant filed the case in July 2012, but the injunction was prayed for in the month of September, 2012. It is contended that in view of the provisions contained in West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. The Civil Court as well as the Consumer Fora have no jurisdiction to entertain any Civil Suit or petition of complaint under the C. P. Act. It is contended that the complaint is not maintainable. It is submitted that when the Civil Suit has been filed by the Complainant the simultaneous petition of complaint under the C. P. Act is not maintainable. The Learned Counsel has referred to the decision reported in 2012 (3) CLJ (Cal) 291 [Smt. Rita Das Vs. Vs. M/s Jayashri Ghosh & Ors.]; the decision of the Hon'ble High Court, Calcutta in C. O. No.25 of 2013 decided on August 2, 2013 [Smt. Bithi Das & Ors. Vs. Sri Debabrata Majumdar & Ors.]; the decision of the Hon'ble High Court, Calcutta reported in (2013) 4 WBLR 957 [Lav Arunbha Vaidya Vs. Mr. Prosenjit Sarkar & Ors.].
The Learned Counsel for the Complainant, on the other hand, has submitted that the Hon'ble Apex Court has held that the applications under Article 227 and Article 226 of the Constitution of India are not maintainable before the Hon'ble High Court. It is submitted that the sum of Rs. 5 lakh has already been paid for the purchase of the flat and as per terms of agreement the balance amount is to be paid at the time of delivery of possession. It is contended that more than 18 months have already elapsed and the OPs did not comply with the terms of agreement.
We have heard the submission made by both sides and perused the papers on record. In the decision of the Hon'ble High Court, Calcutta in the case of Smt. Rita Das Vs. M/s Jayashri Ghosh & Ors. (supra) it has been held in Paragraph-22 as follows:
By respecting the judicial discipline as well as Article 141 of the Constitution of India, I am bound by the law declared by the Apex Court as well as the Division Bench and thus hold that the Consumer Forum is competent to pass an order for execution and registration of the title deed.
In the decision of the Honble Apex Court reported in 1999 (3) CPR 67 (SC) [Mr. France B. Martins & Anr. Vs. M/s Mafalda Maria Teresa Rodrigues] it has been held that where the builder though delivered flat as per agreement but failed to execute the sale deed, Consumer Protection Commission was justified in giving direction to builder for specific performance of agreement. The Learned Counsel for the complainant has also referred to the decision reported in II (2007) CPJ 280 [Joyprakash Menon & Anr. Vs. Lok Housing and Construction Ltd & Ors.] wherein it has been held by Honble State Commission, Maharashtra that Consumer Protection Act being Central Act and Special Statute prevails over the State Act. The Honble High Court, Calcutta in Civil Order No.3297 of 2007 (Apollo Gleneagles Ltd. Vs. Sailendra Chaubay) decided on July 15, 2013 has been pleased to observe as follows:
Taking the spirit of the law coming out from the provisions laid down in Section 21(b) of the Consumer Protection Act and the decisions cited above, it is clear that the order impugned which is passed by the State Commission may be challenged before the National Commission. Therefore, the question of invoking power in revisional jurisdiction by this Court does not appear to have the sanction of law.
Relying on the decision of the Honble Apex Court reported in 1999 (3) CPR 67 (SC), we are of the view that the petition of complaint is maintainable.
In view of the materials on record and in view of the submission made by both sides we direct that the interim order already granted vide order no.9 dated 09/09/13 under MA 447 of 2013 will continue till the disposal of the case. The Miscellaneous Application bearing no.447 of 2013 is disposed of. To 17/03/14 for filing W.V. MEMBER(TG) MEMBER(L) PRESIDENT