State Consumer Disputes Redressal Commission
Sri Indrajeet Shaw vs Sri Bishnupada Das on 13 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/669/2014 (Arisen out of Order Dated 14/05/2014 in Case No. CC/394/2013 of District Kolkata-I(North)) 1. Sri Indrajeet Shaw S/o Late Rabindranath Shaw, 2nd Floor, 26/9, Sahapur Colony, P.S. New Alipore, Kolkata -700 053. ...........Appellant(s) Versus 1. Sri Bishnupada Das S/o Late Bimal Krishna Das, 13/14 Shed, Netaji Subhas Dock, Subhas Bhawan, Kolkata Port Trust, 40, Circular Gardenreach Road, Kolkata-700 043. 2. Sri Arunangshu Das S/o Late Bimal Krishna Das, 26/9, Sahapur Colony, P.S. New Alipore, Kolkata -700 053. 3. Smt. Srabani Roy (Das) D/o Late Bimal Krishna Das, 270/1, Roy Bahadur Road, P.S. Behala, Kolkata -700 053. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Chiranjib Bhattacharyya Mrs. Sritama Bhattacharyya, Advocate For the Respondent: Dated : 13 Sep 2016 Final Order / Judgement Date of Filing- 11.06.2014 Date of Hearing - 29.08.2016 Date of Order - 14.09.2016 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
Challenge in this appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the order no.08 dated 14.05.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint no. 394/2013 whereby the consumer complaint initiated by the Appellant under Section 12 of the Act was rejected.
The Appellant herein being the Complainant lodged the complaint alleging that he entered into an agreement with the Opposite Parties to purchase of a flat measuring about 1050 sq. ft. on the 2nd floor at Premises no.26/9, Sahapur Colony, P.S.- New Alipore, Kolkata-700053 at a price of Rs.750/- per sq. ft. The Complainant has already paid a total sum of Rs,7,00,000/-. But the OPs did not execute and register the Sale Deed in favour of him for which he instituted a suit being T.S. no. 15464/2011 before the Ld. 1st Court of Civil Judge (Senior Division) at Alipore and the said case is pending but as it is not expected to the ultimate result shortly in that suit, Complainant has filed the complaint with prayer of certain reliefs, like- a) to direct the OPs to execute and register the Sale Deed; b) to pay a compensation of Rs.1,00,000/-; c) to pay litigation cost of Rs.30,000/- etc. The OPs after entering appearance filed an application challenging the maintainability of the proceeding and by the impugned order, the Ld. District Forum allowed the application and thereby reject the petition of complaint, which prompted the Complainant to prefer this appeal.
We have considered the submission advanced by the Ld. Advocate for the Appellant. Inspite of receipt of notice, the Respondents have not appeared and, therefore, under compulsion the appeal was heard in absence of the Respondents.
The impugned order is reproduces below for appreciation of the contention of the Appellant -
"08/14.05.14. The record is put up for order in respect of petition filed by O.P. on 14.02.2014 challenging the maintainability of the case. We have gone through the petition and perused the materials on record. We have observed that a Civil Suit for specific performance before the 1st Court of Civil Judge, Senior Division at Alipore was filed by the Complainant being Title Suit no.15464 of 2011. The aforesaid title suit is pending before the Ld. Court and the case was filed for the self same cause of action as prayed in the instant case before this Forum. To avoid the possibility of multiplicity of the proceedings, the instant case cannot be maintainable before this Forum. Thus, the instant case stands rejected".
Mr. Chiranjib Bhattacharyya, Ld. Advocate appearing for the Appellant has submitted that the observation of the Ld. District Forum is contrary to the proposition of law in view of the provisions of Section 3 of the Act. He has further contended that the pendency of a civil suit does not take away the right of a 'consumer' to ventilate his grievances before a Consumer Forum inspite of pendency of a civil suit. To fortify his contention, Ld. Advocate for the Appellant has placed reliance to two decisions of Hon'ble National Consumer Commission reported in - (1) IV (2012) CPJ 38 (Arun Khanna - Vs. - Shashi Sharma & Ors.) and (2) I (2016) CPJ 331 (Nirmal Kumar Das & Anr. - Vs. - Trishna Rana & Anr.).
In the decision of Arun Khanna (Supra), referring the decision of the Hon'ble Supreme Court in connection with Faquir Chand Gulati's case reported in (2008) 10 SCC 345, it has been observed that a person/buyer may approach either before the Civil Court or before a Consumer Forum for seeking justice, since remedy before Consumer Forum is in addition to and not in derogation to remedy under other Acts.
The question as to whether the pendency of a civil suit comes in the way of filing or continuance of a complaint before a Consumer Forum came for consideration of a Division Bench of Delhi High Court in Hindusthan Motors Ltd. - Vs. - Amardeep Singh Wirk & Ors. reported in III (2009) CPJ 417. In the aforesaid case, Respondent no.1 purchased a vehicle manufactured by the Appellant Hindusthan Motors Ltd. The Said vehicle met with an accident in which the brother of Respondent no.1, who was driving the vehicle, died. Alleging manufacturing defects in the vehicle, Respondent no.1 claimed compensation from the Appellant. The wife of the deceased filed a civil suit for damages, alleging negligence on the part of the Appellant. It was contended by the Appellant that since the issues involved were common in the civil suit as well as in the complaint, continuation of both the proceedings would have deritorious effect and could result in conflicting orders. The Hon'ble Single Judge took the view that the right created under the Act could not be curtailed on the ground of pendency of other proceedings and existence of parallel or other adjucatory Forums could take away or exclude the jurisdiction created under the Consumer Protection Act. Being aggrieved from the order passed by the Hon'ble Single Judge, the Appellant Company filed an appeal before the Division Bench of the High Court. Referring to the decision of the Hon'ble Supreme Court in Satpal Mohindra - Vs. - Surindera Timber Stores reported in (1999) 5 SCC 696, the Division Bench dismissed the appeal, holding inter alia as under:
"16. In the light of the judgements discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar. The remedies are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act".
In another case, relying upon the decision of the Hon'ble Apext Court in Guru Granth Saheb Meerghat, Vanaras - Vs. - Ved Prakash & Ors. reported in (2013) 7 SCC 622, the National Consumer Commission by order dated 07.11.2014 in CC/383/2013 and other connected complaints has laid down as follows :
"We are, therefore, of the view that the trial in criminal cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intend of the Act, summary trial of Consumer Complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails".
In the view of the above, the impugned order being not in conformity with the law, it should be interfered with. In other words, the Ld. District Forum misdirected itself in appreciating the matter from proper perspective in accordance with the aim and object and philosophy behind the legislation of the Act.
Consequently, appeal is allowed exparte.
The impugned order is hereby set aside.
The case is remitted back on remand with a direction upon the Ld. District Forum to proceed further in accordance with law after intimating the parties and to take all positive steps to dispose of the complaint as expeditiously as possible and to that effect, the written version must be filed in accordance with the time limit as prescribed under Section 13(2)(a) of the Act and the decision of Three Judges Bench of Hon'ble Apex Court reported in 2016 (1) Supreme 319.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information and necessary action.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER