Calcutta High Court (Appellete Side)
Kamala Properties Limited vs Miss Sanjukta Dasgupta & Ors on 7 March, 2014
Author: Arindam Sinha
Bench: Arindam Sinha
1 07.03.14 11 sm C.O. 2441 of 2011 Kamala Properties Limited vs Miss Sanjukta Dasgupta & Ors.
Mr. Om Narayan Rai Mr. Prashant Agarwal Ms. Saroj Tulsian ....for the petitioner Mr. Siddhartha Lahiri Mr. Kushagra Saha Ms. A. Chakraborti ....for the opposite parties This application under Article 227 of the Constitution of India is directed against order No. 14 dated 28th January, 2010 passed by the Consumer Disputes Redressal Forum, Unit -I, Kolkata in CDF/Unit-I/Case No. 363 of 2007. The petitioner/promoter has challenged the said order. Mr. Rai, learned advocate appearing on behalf of the petitioner submits that the application of the opposite parties/flat purchasers was made praying for execution and registration of deed of conveyance in respect of the flats and car parking spaces purchased by them as well as compensation. The admitted position is that pursuant to the 2 order impugned, the registration of conveyances in favour of the opposite parties has taken place.
Mr. Rai submits that the order impugned is liable to be set aside since the Consumer Forum exercised jurisdiction it did not have. He relies on the provisions of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, hereinafter referred to as the said Act, in particular to Sections 6 and 12A therein. He submits that under Section 6 any purchaser may, if he has any dispute regarding the purchase of any flat, make an application as may be prescribed for adjudication. He submits that the scope and effect of the said Section 6 is of widest effect and the reliefs claimed by the opposite parties in their application before the Consumer Forum come within the ambit of the said section. He then submits that under Section 12A, the jurisdiction of the Consumer Forum which has the trappings of a civil court stood ousted. As such, the impugned order cannot be sustained. In 3 substantiating his submissions Mr. Rai relies upon the following decisions:
(i) 2012(1) CHN (CAL) 272 ( Rita Das - vs - Jayashri Ghosh)
(ii) 2014(1) CHN (CAL) 50 (Bithi Das - vs - Debabrata Majumdar) Mr. Rai submits that this court has consistently held in considering and relying upon the judgments of the Supreme Court that in the circumstances of the present case the jurisdiction of the Consumer Disputes Redressal Forum stood ousted.
Mr. Lahiri, learned advocate appearing on behalf of the opposite parties/ purchasers relies upon an unreported judgment dated 24th July, 2013 also of this court in C.O. No. 1378 of 2012. He submits that he had obtained the copy from the official website of this court. That judgment was contrary to the judgment in Rita Das's case distinguished on the fact that the promoter in that case 4 had not obtained registration under the said Act.
This court finds that the said Act provides for the definition of promoter as well as purchaser within which definition the parties in this application fit. The said Act also provides for registration required to be had by promoters under Section 3. Under Sections 13A, 13B and 14, the consequences, inter alia, of not obtaining registration have been provided for. However, this court does not find any bar imposed by the provisions of the said Act regarding a promoter being able to sue or be sued upon his failure to register himself. In the circumstances, the decisions rendered by this court in the cases of Rita Das and Bithi Das on the one hand and the unreported decision on the other hand all rendered by courts having coordinate jurisdiction, appear to be in conflict with each other.
Hence this matter may be placed before a Larger Bench for consideration and adjudication of the question involved. 5
This revisional application stands admitted. Further proceeding in the Consumer Forum below regarding the above case is stayed till the disposal of the question referred.
Urgent certified photocopy of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.
(Arindam Sinha, J.)