Calcutta High Court
Narayan Chandra Ghosh And Anr. vs Biswajit Lahiri on 19 December, 2005
Equivalent citations: AIR2006CAL95, 2006(1)CHN401, AIR 2006 CALCUTTA 95, 2006 (3) AKAR (NOC) 276 (CAL), 2006 A I H C (NOC) 71 (CAL), (2006) 1 CAL HN 401, (2006) 1 CAL LJ 435
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of the plaintiffs in a suit for specific performance of contract and is directed against the judgment and decree dated 5th June, 2004 passed by the Civil Judge, Senior Division, 2nd Court, Hooghly in Title Suit No. 108 of 2002 thereby dismissing the suit as not maintainable in view of the provision contained in Section 12(A)(1) of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (hereinafter referred to as the Act).
2. The appellants herein filed a suit for specific performance of an agreement of purchase of a flat executed between the plaintiffs and the defendant, a promoter, on the allegation that in spite of making full payment of the consideration money, the promoter was not handing over possession of the flat to the plaintiffs. In the said suit an alternative prayer for recovery of the consideration money paid by the plaintiffs was made in the event the prayer of specific performance was refused.
3. After entering appearance in the suit but before the filing of the written statement, the defendant took a preliminary point as to the maintainability of the suit contending that in view of clear bar created by Section 12A of the Act, the suit filed by the plaintiffs was not maintainable.
4. The aforesaid application was opposed by the plaintiffs contending that the suit being one not only for specific performance of contract but also for recovery of consideration money in the alternative, the Civil Court has jurisdiction to entertain the suit. It was further contended that Section 12A of the Act was not an absolute bar in entertaining a suit for specific performance of contract.
5. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein accepted the contention of the defendant that the suit was not maintainable before a Civil Court.
6. Being dissatisfied, the plaintiffs have come up with the present first appeal.
7. Mr. Ashok Banerjee, the learned Senior Advocate appearing on behalf of the appellants has vehemently contended before us that the provision contained in Section 12A of the Act is not an absolute bar in exercise of jurisdiction by a Civil Court in the matter of entertaining a suit of the present nature. Mr. Banerjee tried to convince us that the provisions contained in Section 6 of the Act is merely an alternative remedy to a person who has entered into an agreement with a promoter for purchase of a flat and as such, the dispute involved in the suit does not come under the provisions of the Act.
8. Mr. Banerjee next contended that even assuming for the sake of argument that prayer for specific performance of contract was barred by Section 12A of the Act but his client having also made alternative prayer for recovery of money, the provisions contained in Section 12A of the Act could not stand in the way of the Civil Court in entertaining a pure money suit for recovery of consideration money. Mr. Banerjee, in other words, contends that if his clients do not press the relief of specific performance and simply want to get back the money, such a prayer cannot be barred.
9. Mr. Chatterjee, learned Advocate appearing on behalf of the respondent opposed the aforesaid contentions of Mr. Banerjee and contended that on the basis of averments made in the plaint there being a clear dispute within the meaning of the Act, the suit is patently barred. Mr. Chatterjee contends that the alternative prayer of recovery of money can be pressed only in the event the Court refuses to grant the principal relief claimed in the suit and even if, in a case, such amount is paid pursuant to an agreement entered into with a promoter for purchase of a flat, the relief is clearly barred before a Civil Court.
10. Therefore, the sole question that arises for determination in this appeal is whether on the basis of averments made in the plaint the suit was barred under Section 12A of the Act.
11. To appreciate the aforesaid contention raised by the learned Counsel for the parties it will be profitable to refer to the provision contained in Section 12A which is quoted below:
12A. Bar on jurisdiction of Court.-(1) No Civil Court shall have any jurisdiction to entertain or decide any question relating to matters arising under any provision of this Act or the rules made thereunder.
(2) Every order passed by the authorised officer which is subject to appeal or revision, every order passed by the authority referred to in Sub-section (1) of Section 5, and every order passed by the officer referred to in Section 6, which is subject to revision, and every order passed by the State Government in revision, shall be final and shall not be questioned in any Court of law.
12. After going through the aforesaid provision we find that by enactment of Section 12A the jurisdiction of the Civil Court to entertain or decide any question relating to the matters arising under the provision of the Act or rules made thereunder is totally barred.
13. If we read the plaint as a whole, we find that the grievance of the plaintiffs is that in terms of the agreement entered into between the parties they gave full amount of the consideration money to the promoter but the promoter was not complying with the terms of the agreement.
14. In our view, the aforesaid averments clearly bring the matter within the phrase "any question relating to matter arising under the provision of this Act" contained in Section 12A of the Act. According to Section 6 of the Act, any purchaser may, if he has any dispute regarding the purchase of any flat, make an application in such form as may be prescribed to such Officer as the State Government may appoint for adjudication of the dispute in such manner as may be prescribed. Therefore, for the purpose of getting relief against a promoter, the statute has given a right to the purchaser to make application in terms of Section 6 in the facts of the present case and as such, the dispute referred to in the plaint is within the ambit of the Act.
15. The object of the Act is to give immediate relief to the persons who have entered into an agreement for purchase of a flat from a promoter instead of prolonged litigation before a Civil Court and for above reason, by enacting Section 12A, the legislature has totally taken away the jurisdiction of the Civil Court. Therefore, not only the relief of specific performance of contract, but even the prayer of recovery of money paid pursuant to an agreement for purchase of flat is a dispute within the compass of the Act.
16. We, therefore, find that the learned Trial Judge rightly held that Section 12A of the Act has taken away the jurisdiction of the Civil Court to entertain the dispute raised by the plaintiffs in their plaint. The bar created by Section 12A of the Act is not an implied one but an explicit bar.
17. We, thus, find no substance in this appeal and the same is, thus, dismissed.
18. We make it clear that we have not gone into the merits of the dispute and the dismissal of this appeal will not stand in the way of the plaintiffs in seeking their appropriate remedy before the appropriate forum in accordance with law. In the facts and circumstances, there will be, however, no order as to costs.
Pravendu Narayan Sinha, J.
I agree.