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IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, J.
Smt. Rita Das
Vs.
Mrs. Jayashri Ghosh & Ors.
C.O. No. 3111 of 2008.
Decided On : 14.12.2011
CONSUMER PROTECTION ACT - JURISDICTION - SPECIFIC PERFORMANCE OF AGREEMENT FOR SALE - CONSUMER FORUM'S COMPETENCE - EXCLUSION OF CIVIL COURT JURISDICTION UNDER SPECIAL STATUTE - APPLICABILITY TO CONSUMER FORUM.
Fact of the Case:
Petitioner, the owner of a plot of land, entered into a development agreement with a partnership firm for the development of the land. Complainant, intending to purchase a flat in the newly constructed building, entered into an agreement for sale with the petitioner and paid the entire consideration amount. Despite taking possession of the flat, no conveyance or sale deed was executed in her favor. Complainant approached the Consumer Dispute Redressal Forum seeking an order directing the petitioner and the promoter to execute and register the deed of conveyance and compensation for harassment. The District Consumer Disputes Redressal Forum and the State Commission affirmed the order, holding that the stamp affixed on the agreement for sale was sufficient and registration was not mandatory.
Finding of the Court:
The Consumer Forum is competent to pass an order for execution and registration of the title deed. The Consumer Protection Act is in addition to and not in derogation with any other law. The jurisdiction of the civil court is excluded and vested upon the Consumer Forum, but it does not offend any statute or any other law. However, if the special statute enacted for the purpose of determination and/or adjudication in relation and/or touching the matter covered therein by a special forum, the Consumer Forum cannot still invoke its jurisdiction by taking recourse to Section 3 of the Consumer Protection Act.
Issues: 1. Whether the Consumer Forum is competent to pass an order for execution and registration of the sale deed? 2. Whether the exclusion of the jurisdiction of the civil court under a special statute applies to the Consumer Forum as well?
Ratio Decidendi: 1. The Consumer Forum has the power to grant relief which is, in effect, a decree for specific performance of an agreement for sale, as it has a trapping of a court and can exercise the powers vested in the Civil Procedure Code while trying a suit. 2. The Consumer Protection Act is in addition to and not in derogation with any other law, and the establishment of the Consumer Forum does not offend any statute or any other law. However, if a special statute creates an embargo upon the court exercising jurisdiction under the general statute to adjudicate the disputes or claims arising out of the said special statute, the jurisdiction of the court functioning under the general statute is excluded. Therefore, the Consumer Forum cannot exercise jurisdiction under Section 3 of the Consumer Protection Act if the civil court's jurisdiction is expressly excluded under the special statute.
Final Decision: The revisional application is allowed, and the impugned orders of the District Consumer Disputes Redressal Forum and the State Commission are set aside. However, this order does not preclude the complainant from approaching the appropriate forum for ventilation of her grievance.
HARISH TANDON, J.:
This revisional application is directed against judgment and order dated 16.04.2008 passed by State Consumer Disputes Redressal Commission, West Bengal in SC Case No. 183/A/ 2007 affirming those judgment and order dated 24.04.2007 passed by District Consumer Disputes Redressal Forum in CC Case No. 292 of 2004.
2. The facts involved in this revisional application are that the petitioner was initially seized and possessed of 2 cottahs 12 chittaks 31 sq.ft of land comprised in Municipal Premises No. 29, Jadu Mitra Road, Kolkata700034 whereas another plot of land measuring 3 cottahs 6 chittaks 15 sq.ft comprised in Municipal premises No. 148A, Bonamali Ghosal Lane, Kolkata-700 034 was owned by the cousin sister of the petitioner namely Ratna Biswas (nee Das) since deceased. After the death of the said cousin sister, husband and minor son transferred the said Municipal Premises No. 148A, Bonamali Ghosal Lane Road, Kolkata-700034 to the petitioner and one Soma Adhikary, the proforma opposite party No.3 herein for valuable consideration of Rs. 1,60,000/- out of which a sum of Rs. 1,20,000/- paid by the petitioner and the remaining Rs. 40,000/- was paid by the said proforma opposite party No.3 after obtaining a permission from the learned District Judge, South 24-Parganas. The aforesaid two plots were, thereafter, amalgamated and the entire plot of land was renumbered as 29, Jadu Mitra Road, Kolkata-700034. Subsequently, by virtue of a development agreement entered into between the petitioner as well as one M/s. B.M. Construction of partnership firm for development of the said amalgamated plot of land and in order to facilitate and/or smooth progress in the construction power of attorney were executed in favour of the partners of the said partnership firm. The complainant opposite party No. 1 alleges that she being the intending power entered into an agreement for purchase of a Flat No.2A on the second floor of the developed building on 23 April, 1995 and paid the entire consideration money from time to time and the said developer handed over the possession to her on 6th February, 1997. It would be pertinent to mention that the said agreement was executed on another judicial stamp paper of Rs.10/-. It is a specific case of the complainant/opposite party No.1 that in spite of handing over the possession, no conveyance and/or sale deed is executed in her favour.
3. The complainant opposite party No.1, thereafter, approached the Consumer Dispute Redressal Forum, Kolkata and filed C C Case No. 292 of 2004 for an order directing the petitioner as well as the said promoter to execute and registered the deed of conveyance and in respect of the said flat and also compensation to the tune of 2 Lakhs for unnecessary harassment together with the cost of the proceeding.
4. The petitioner contested the said complaint by taking a plea that she is not a consumer within the definition of a consumer under the Consumer Protection Act. It is further contended that after the Promulgation of West Bengal Stamp, (Prevention of Under Valuation of Instrument) Rules 1994, and West Bengal Building ( Regulation of Promotion) Act, 1993 the unregistered agreement does not create any right an interest in favour of the purchaser.
5. The District Consumer Disputes Redressal Forum (herein after the District Forum) did not consider the aforesaid objections but proceeded on the basis that if the entire consideration money is received, it is an obligation of the developer and owner to execute and registered the title deed in favour of the complainant/opposite party No.1
6. The said judgment and order was assailed before the State Commission by the petitioner. The State Commission dismissed the said appeal on the ground that the stamp affixed on the agreement for sale is sufficient and registration is not mandatory.
7. Assailing the aforesaid order in this revisional application, the petitioner submits that the Consumer Court Exercising Ju
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