Samaresh Prasad Chowdhury, Presiding Memeber
The instant revision petition under Section 17 (1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party to assail the order No. 11 dated 28.03.2019 passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (in short, Ld. District Forum) in Consumer Complaint No. 33/2018 whereby the applications filed by the complainant Smt Chaitali Das under Section 13 (3B) of the Act were disposed of (which should have been registered as IA) with the directions upon the Opposite party/ revisionist to allow the complainant to receive the electricity connection from their existing connection through sub- meter and accept monthly bills shown in the sub-meter and to resume water supply to the flat mentioned in the schedule to the petition of complaint.
We have scrutinised the materials on record and considered the submission advanced by Mr. Saikat Mali and Mr. Soumya Banerjee, Ld. Advocates for the revisionist and Opposite Party respectively.
The Opposite Party herein being complainant lodged the complaint before the Ld. District Forum under Section 12 of Act against the revisionist on the allegation of deficiency of services in a dispute of housing construction with prayer for several reliefs, viz.-(a) an order directing the Opposite Party to execute and register the deed of sale in favour of the complainant alternatively to refund Rs. 12,00,000/-; (b) an order of interest @ 6% p.a. at Rs. 12,00,000/- from the date of filing a complaint till realisation; (c) compensation of Rs. 1,00,000/- for harassment and mental agony and (d)costs of the proceeding etc.
Having heard the Ld. Advocate for the respective parties and on going through the materials on record, it would reveal that the complainant has averred that she entered into an agreement for sale with the Opposite Party/revisionist on 01.04.2017 to purchase of one flat measuring about 520 sq. ft in holding No. 381 (New), P.S.- Chandernagore, Dist.- Hooghly within the local limits of ward No. 9 of Chandernagore Municipal Corporation at a total consideration of Rs. 10,00,000/-. Admittedly, the complainant has paid the entire consideration amount of Rs. 10,00,000/-. However, non-execution of the sale deed prompted the intending purchaser to lodge the complaint before the Ld. District Forum.
The Opposite Party i.e. revisionist after entered appearance is contesting the case. During pendency of the proceedings, complainant by filing an application under Section 13(3B) of the Act has prayed for installation of supply of electric connection and supply of water, which according to complainant, was cut off on 14.08.2018.
Upon hearing the Ld. Advocate for the parties, the Ld. District Forum by the impugned order allowed the applications with certain directions upon the Opposite Party, as indicated above. To impeach the said order, the Opposite Party has come up in this commission with the instant revision petition.
Mr. Saikat Mali, Ld. Advocate for the petitioner/revisionist has submitted that the Opposite Party being plaintiff has instituted one suit being TS No. 59 of 2018 in the court of Ld. Civil Judge (Senior Division), Chandernagore and as such the instant proceeding should remain stayed till the disposal of the said suit. In support of his contention, Ld. Advocate for the appellant has placed reliance to a decision of the Hon’ble Supreme Court reported in 1995 SCC Supl (4) (Proprietor, M/s. Jabalpur Contractor –vs- Sedmal Jainarain and Anr).
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 deleterious 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 adjudicatory 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 Apex 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”.
We must not be obsessed with the object behind the legislation of the Act. The Act being a social beneficial legislation should receive a liberal construction. In Lucknow Development Authority – Vs. – M.K. Gupta, (1994) 1 SCC 243, it has been observed as under:-
“To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of interests of consumers. Use of the word ‘protection’ furnishes key to the minds of makers of the Act. It means and indicates that the legislature in its wisdom left the matter for consideration to a consumer to choose the Forum for his convenience and in any case, the proceeding before a Consumer Forum cannot be stayed simply on the reason is that one civil suit is pending. The trend of the decision of the Hon’ble Supreme Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment. The Hon’ble Apex Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated”.
The decision in the case of proprietor, M/s. Jabalpur Contractors (supra) appears to be distinguishable with the facts and circumstances of the case because in the said case, the state commission has overlooked the fact that the amount claimed by M/s. Jabalpur Contractors as garage charges is Rs. 18,000/- which was sub-judice before a competent civil court. Keeping in view the authority referred above, we have no hesitation to hold that the pendency of the civil suit instituted by the OP cannot be a bar for the complainant to pursue the instant consumer complaint.
Thereafter, the Ld. Advocate for the revisionist invited our attention to the schedule of the agreement for sale and has submitted that the complainant intended to purchase a plot of land measuring about 520 sq. ft. and not a flat and as such in view of the decision of the Hon’ble Supreme Court in the case in Civil Appeal No. 331/2007 (Ganesh Lal –vs- Shyam) the complaint is not amenable before a Forum constituted under the Act. In reply to the same, the Ld. Advocate for the complainant has drawn our attention to the statements contained in paragraph Nos. 5 and 6 of the copy of plaint and has submitted that the subject property was not a plot of land but a flat measuring about 520 sq. ft within the local limits of Chandernagore Municipal Corporation. In any case, this question being a mixed question of fact and law cannot be adjudicated at the stage.
Needless to say, after accepting the entire consideration amount, it is bounden duty on the part of the developer/owner to fulfil three basic obligations, viz.- (a) to deliver possession; (b) to execute the sale deed and (c) to obtain completion certificate from the competent authority and to hand over an authenticate copy of the same to the purchaser in order to enable him/her to mutate his/her name in the Assessment Register of the competent authority. Without adhering to the same, the OP instituted one suit before the civil court as a counter blast to the instant consumer complaint. Further, OP/revisionist had cut off the electrical line and water supply connection of complainant on 14.08.2018.
Ld. Advocate for the petitioner/revisionist has also submitted that the Ld. District Forum has passed the impugned order ignoring the direction of the Hon’ble High Court at Calcutta dated 30.11.2018 in WP 22369 (w) of 2018. We also do not find any substance behind such contention because the impugned order reflects that the order passed by the Hon’ble High Court at Calcutta was duly considered and keeping in view the said order of the Hon’ble High Court, the Ld. District Forum has passed the impugned order as the Hon’ble High Court did not pass any order as to supply of water.
The power of revisional jurisdiction of state commission flows from Section 17(1)(b) of the Act which reads as under:
“(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.”
After giving due consideration to the submission made by the Ld. Advocate appearing for the parties and on scrutiny of materials on record we do not find any jurisdictional error or material irregularity in passing the order impugned. Therefore, we do not find any reason to interfere with the order impugned.
For the reasons aforesaid, the revision petition is dismissed on contest with costs of Rs. 5,000/- to be paid by th
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e OP/revisionist in favour of the complainant within 15 days from date and to show a receipt of payment to that effect before the Ld. District Forum by the next date positively. The impugned order is hereby affirmed. The parties are directed to appear before the Ld. District Forum on 06.04.2020 to receive further order from the said authority and to show receipt as to payment of cost by the revisionist/OP. The Ld. District Forum is requested to fix each and every Wednesday (unless it is declared holiday) for reception of evidence and final hearing and to make all endeavour to dispose of the complaint within three months from the date fixed and in this regard the Ld. District Forum should not grant any adjournment to either of the parties in any circumstances whatsoever unless any exceptional situation arises. Parting with the case, We draw the attention of the Ld. President of the District Forum not to entertain any application directly in the Bench unless the same is registered as IA/MA, as the case may be, and necessary direction in this regard may be given to the Registrar of the Forum. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Dispute Redressal Forum, Hooghly at Chinsurah for information.