Once a party elects a remedy under a special statute, they cannot pursue another remedy for the same dispute, even if an arbitration clause exists.

Krishna Rao, J.:

1. The defendant has filed the present application being G.A. No. 3 of 2022 in C.S. No. 57 of 2022 under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the parties to the instant suit to arbitration in terms of Clause 26 of the General Terms and Conditions entered between the parties

2. The plaintiffs have filed the suit against the defendant for recovery of a sum of Rs. 62,99,393/- along with interest. The defendant is the subsidiary of the Bengal Ambuja Housing Development Limited, who is a joint venture company of the West Bengal Housing Board and Ambuja Neotia Group. After going through the advertisements made by the defendant, the plaintiffs became interested in the said project and contacted the defendant’s representative. On 24 th April, 2016, the plaintiffs have jointly applied for allotment of Apartment No. 07 in the project of the defendant having built up area of 4046 Sq. Ft. Type - G on the 22 nd floor of Tower No.1.

3. The defendant has provided an application to the plaintiffs, hence the plaintiffs have duly signed the said application and also made payment of Rs.10,00,000/- by way of cheque on 20 th April, 2016. General Terms and Conditions of the Agreement for allotment of an apartment in the said project was also provided to the plaintiffs. On 28 th April, 2016, the defendant has also made over provisional allotment of the apartment to the plaintiffs and the total sale consideration of the said apartment was fixed at Rs. 2,73,07,620/-. Time to time as per the demand of the defendant, the plaintiffs have paid an aggregate amount of Rs. 94,15,028/- till 22 nd November, 2017 being the part sale consideration of the apartment.

4. Due to the demand for installment amount at a regular-intervals by the defendant which is contrary to the representations made by the defendant prior to application for allotment causing financial difficulties to the plaintiffs and the plaintiffs were facing serious difficulties and inconvenience in arranging for payments of the instalment amounts at short notice, the plaintiff no. 1 approached the defendant with a request for cancellation of the provisional allotment of the apartment. The plaintiffs, by e-mails dated 15 th June, 2018; 8 th July, 2019; 19 th July, 2019; 22 nd August, 2019; 30 th January, 2020 and 13 th February, 2020 requested the defendant to arrange for the refund of the part consideration paid by the plaintiffs to the defendant.

5. The defendant by an email dated 15 th February, 2020, informed the plaintiffs that the plaintiffs shall be entitled to refund of a sum of Rs. 31,15,635/- only out of the total amount of Rs. 94,15,028/- after the resale or re-allotment of the said apartment. The defendant informed the plaintiffs that a sum of Rs. 31,95,159/- would be deducted towards cancellation charges of GST and Service tax.

6. As the deduction of Rs. 62,99,393/- was illegal and contrary to law, the plaintiffs have lodged a complaint to the West Bengal Housing Industrial Regulation Authority under Section 31 of the West Bengal Housing Industry Regulation Act, 2017 but no date was fixed for hearing of the complaint of the plaintiffs. In the meantime by a letter dated 20 th February, 2021, the defendant send a cheque of Rs. 31,15,635/- after deducting the alleged applicable charges stating that the plaintiffs have no right, tittle or interest against the apartment. After several correspondences between the parties, the plaintiffs have accepted the amount of Rs. 31,15,635/- without prejudice to the rights of the plaintiffs to recover the entire consideration along with interest.

7. The plaintiffs have not received any notice of any proceeding from the West Bengal Housing Industrial Regulation Authority, the plaintiffs have filed the present suit.

8. Mr. Siddhartha Ban