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M/s. Vindhya Projects Pvt. Ltd. v/s Alok Kumar Basu & Others


Company & Directors' Information:- S KUMAR PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2009PTC134015

    C.O. No. 823 of 2013 (Appellate Side)

    Decided On, 27 June 2013

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE PRASENJIT MANDAL

    For the Petitioner: Tapas Bhattacharya, Partha Chakraborty, Jayanta Mukherjee, Ms. Anindita Maity, Advocates. For the Opposite Parties: Sagar Bandyopadhyay, Ms. S. Kar Ghosh, Niladri Banerjee, Advocates.



Judgment Text

Prasenjit Mandal, J.

Challenge is to the Order dated February 21, 2013 passed by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No.F.A./387/2012 arising out of the judgment and order dated June 8, 2012 passed by the learned District Consumer Disputes Redressal Forum, South 24 Parganas in C.C. Case No.78 of 2010.

The complainants/opposite parties herein instituted a complaint under Section 12 of the Consumer Protection Act, 1986 contending, inter alia, that an agreement for development of the land of the complainants was held on November 24, 2003 between the complainants and the petitioner herein upon certain terms and conditions, inter alia, that the owners of the land would get 38% of the total constructed area and the developer to furnish completion certificate in respect of the building, drainage, sewerage, etc. The development of the land of the complainants had been done accordingly. But, the possession of 38% of the total constructed area and the completion certificate had not been delivered to the complainants.

Under the circumstances, the said complaint was filed before the learned District Forum. The petitioner did not contest the said complaint case before the learned District Forum and so, the learned District Forum decreed the complaint granting allocation of shares as per agreement and for a direction for issuance of certificates by the developer in favour of the complainants.

Being aggrieved by the said ex parte order of the learned District Forum, the petitioner preferred an appeal being S.C. Case No.F.A./387/2012 before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal (henceforth shall be called as ‘State Commission’).

Upon hearing both the sides, the State Commission dismissed the appeal on contests without any costs. Being aggrieved, the developer has preferred this revisional application.

Now, the question is whether the impugned order should be sustained.

Having heard the learned Counsel for the parties and on going through the materials on record, I find that the Hon’ble State Commission has passed a justified order in the said situation. An opportunity was given to the developer/petitioner herein to contest the complaint under Section 12 of the said Act. But, the petitioner preferred not to contest the said complaint. The learned District Forum proceeded with the complaint case ex parte accordingly and on the basis of the materials and the evidence, the learned District Forum passed the award ex parte against the petitioner.

While dealing with the appeal, the Hon’ble State Commission has recorded reasons in support of its conclusion. It is also recorded that both the parties have filed civil litigation against each other and those are pending. Admittedly, during the pendency of the litigation, the owners’ allocation had been handed over to the owners in conformity with the terms and conditions of the agreement entered into between the parties. So, the Appellate Authority has held that it was incumbent upon the appellant to hand over the approved plan for drainage and sewerage system annexed to the project including the possession later, etc.

It is also recorded by the Appellate Forum that the appellant having failed to contest the case before the learned District Forum, the claim of the complainants has been substantiated by adducing cogent and reliable evidence and so, there is no merit in the present appeal.

While arguing on behalf of the appellant/petitioner herein, Mr. Tapas Bhattacharya has contended that since civil litigation is pending and the Forum as well as the Appellate Authority are not justified at all to deal with the matter and so, it was wrong on their part to pass the impugned orders.

He has contended that this Court has enough jurisdiction to entertain such an application under Article 227 in view of the decisions of Mani Nariman Daruwala & Bharucha (Deceased) through LRs. & ors. v. Phiroz N. Bhatena & ors. reported in AIR 1991 SC 1494 particularly paragraph no.16 at page no.1499, Hooghly Cooperative Agriculture and Rural Development Bank Ltd. v. Nemai Chandra Ghosh reported in AIR 2007 Calcutta 230 and Bharathi Knitting Co. v. DHL Worldwide Express Courier Division of Airfreight Ltd. reported in AIR 1996 SC 2508 particularly the paragraph no.6 and thus, he has contended that if the Appellate Authority has acted without jurisdiction or the findings are perverse, this Hon’ble Court has the power to exercise the jurisdiction properly under Article 227 of the Constitution.

He has also referred to the decision of Smt. Rita Das v. Mrs. Jayashri Ghosh & ors. reported in 2012(4) ICC 834 and thus, he has submitted that neither Consumer Forum nor the State Commission was competent to pass the impugned orders while the civil suit is pending.

On the other hand, Mr. Sagar Bandyopadhyay, learned Advocate appearing for the opposite parties, has contended that this revisional Court has no jurisdiction at all to entertain any matter appearing out of the order/award passed by the District Forum or the State Commission.

In support of his contention, he has relied on the decision of Cicily Kallarackal Vs. Vehicle Factory reported in 2012 (4) CPJ 1 (SC) 1 and the unreported decision dated July 13, 2012 passed by a Single Bench of this Hon’ble Court in C.O. No.1626 of 2012 wherein it has been clearly held that the High Court has no jurisdiction to entertain a petition against the judgment and order passed by the National Commission.

Having heard the learned Counsel for the parties and on going through the materials on record and also the above decisions, I am of the view that in a number of decisions, such as, 2012(4) CPJ 1 (SC) 1 and others, it has been clearly held by the Apex Court that the Consumer Protection Act is a complete Act in the field and if any complaint is lodged under the provisions of the said Act, it shall be dealt with in accordance with the provisions of that Act. There is a provision for appeal as availed of by the petitioner against the order of the District Forum and if the petitioner is not satisfied with the order of the Appellate Authority, there is a provision for revision before the National Commission under Section 21(b) of the said Act of 1986. Therefore, the said Act is a complete one in respect of a complaint lodged under the provisions of the said Act.

The petitioner did not choose to contest the said complaint and accordingly, the learned District Forum has dealt with the matter in accordance with law and passed the award which was tested before the Appellate Authority. Thereafter, the Appellate Authority has considered the ground of appeal and found that the learned District Forum has dealt with the matter and the findings arrived at by the District Forum are based on materials on record ex parte. So, there was no infirmity in the order passed by the District Forum. The Appellate Authority has also dismissed the appeal on contests without costs on giving reasons as recorded above and from such findings, I do not find any infirmity in the impugned order of the Appellate Authority.

Thus, I find that this Court may entertain an application provided by the Forum or the State Commission as acted without any jurisdiction. There being no such occasion in the present case, I am of the view that there is no scop

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e of interference with the order of the Appellate Authority. So, this application is devoid of merits and it should, therefore, be dismissed. Accordingly, the application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. Later:- After delivery of judgment, the learned Advocate for the petitioner submits that he intends to take back the certified copy of the impugned order after annexing a set of xerox copy of the same. The prayer is considered and allowed. Certified copy of the impugned order may be handed over to the petitioner provided he files a set of xerox copy of the same.
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