Super Diamond Nirman Private Limited vs Deepak Agarwal

Ashis Kumar Chakraborty, J.—The subject matter of challenge in this revisional application is an order dated September 02, 2016 passed by the State Consumer Dispute Redressal Commission, West Bengal (in short "the State Commission"), in Misc. Application No. 622 of 2016 on application of the revisional petitioner under Section 8 of the Arbitration and Concilliation Act, 1996 (hereinafter referred to as "the Act of 1996"). By the impugned order, the learned State Commission rejected the said application.

Shorn of details, the facts relevant for the decision in the present revisional application, upon consideration of the propriety of the impugned order passed by the learned State Commission, are that the opposite party no. 1 has filed the Consumer Case No. CC/235/13 (hereinafter referred to as "the said complaint") against the petitioner and the opposite party nos. 2 and 3, before the learned State Commission under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") claiming various directions against the petitioner and the opposite party nos. 2 and 3, including compensation and costs. In the complaint it is the case of the opposite party no. 1 that the petitioner has constructed a housing complex namely, Diamond City West at Premises No. 18, Hochimin Sarani, P.S. Thakurpukur, Kolkata over a plot of land at measuring of area 35 bighas approximately, comprising 10(ten) buildings. The petitioner, through the opposite party no. 2 published various advertisements in newspapers and various printed in visual media about construction of condominium of the said housing complex comprising residential units and the same shall have swimming pools, basketball court, volley ball court, tennis court, gymnasium, children''s playground and various other amenities. According to the opposite party no. 1, acting upon the said representation held out by the petitioner and the opposite party no. 2, by a registered conveyance dated August 03, 2012 he purchased a flat being Flat No. 12D of Tower-10 of the said complex but the petitioner and opposite party no. 2 have not completed the construction of the swimming pool, tennis court, club house, cultural hall and other build etc. The opposite party no. 1 further alleged that it was the obligation of the petitioner to hand over the charge of the opposite party no. 3, the residents'' association, which looks after the maintenance and other dealings and transactions with regard to the said complex to the flat owners themselves, but the petitioner has failed to discharge such obligation and there are various deficiencies of the services rendered by the opposite party no. 3. In the said complaint, the opposite party no. 1 further alleged various deficiencies of services and various wrongful and illegal acts allegedly committed by the petitioners and the opposite party nos. 2 and 3 towards other flat owners of the said complex and himself. The directions sought and money claims raised by the opposite party no. 1, against the petitioner and the opposite party nos. 2 and 3 are particularly stated in paragraph 31 of the complaint petition filed before the learned State Commission. In the said complaint case, the petitioner, as the opposite party no. 1 filed the application under Section 8 of the Act of 1996, alleging that the opposite party no. 1 purchased the said flat, on the basis of an allotment letter issued to him which contains an arbitration agreement providing that all disputes arising out of allotment and the terms and conditions applicable to the said allotment shall be referred to the named sole arbitrator and claimed that the parties to the said complaint case be referred to the arbitration. As mentioned above, by the impugned order the learned State Commission rejected the said application filed by the petitioner. From the records it appears that the allotment letter, containing an arbitration agreement, was issued by the petitioner to the opposite party no. 1 but in the said complaint filed by before the learned State Commission the opposite party no. 1 complainant has claimed various directions, including a direction for payment of compensation and costs against the petitioner as well as the opposite party nos. 2 and 3.

At the very outset, Mr. Debnath Ghosh, learned advocate appearing for the opposite party no. 1 raised strong objection with regard to the maintainability of the revisional application under Article 227 of the Constitution of India. Since the question of maintainability of the present revisional application was raised on behalf of the opposite party no. 1 this Court allowed the learned counsel appearing for the opposite party no. 1 to make his submission on the said issue. He strenuously urged that in view of the incorporation of clause (a) in Section 37(1) of the Act of 1996, which has come into force with effect from October 23, 2015 an order of rejection of an application under Section 8 of the Act of 1996 is an appealable order and inasmuch as the petitioner filed the said application after the incorporation of the remedy of the petitioner as against the impugned order lies in filing an appeal before the learned National Commission. Therefore, according to him, the present revisional application under Article 227 is not maintainable. Relying on the decision of the Supreme Court in the case of Nivedita Sharma v. Cellular Operators Association of India and Ors. reported in (2011) 14 SCC 337 and submitted that in view of the statutory remedy provided under Section 37(1)(a) of the Act of 1996 the petitioner cannot maintain this revisional application under Article 227 of the Constitution of India.

However, Mr. Aritra Basu, learned advocate led by Mr. Avrajit Mitra, learned senior advocate and Mr. Mainak Bose, learned advocate appearing for the petitioner contended that in an earlier revisional application filed by the petitioner, being C.O. 3530 of 2015 challenging an order dated August 17, 2015 passed by the learned State Commission in the said complaint case by order dated June 06, 2016 a learned Single Judge of this Court directed the learned State Commission to decide the application of the petitioner under Section 8 of the Act of 1996 as it is a jurisdictional issue. Therefore, according to him, since the impugned order passed by the learned State Commission rejecting the application of the petitioner relates to a jurisdictional issue the alternative remedy to file an appeal under Section 37(1)(a) of the Act of 1996 is no bar to the maintainability of the present revisional application. In support of such contention, he relied on the decisions of the Supreme Court in the case of Sameer Singh and Anr. v. Abdul Rab and Ors. reported in (2015) 1 SCC 379, Executive Engineer, Southern Electricity Supply Co. of Orissa Ltd. and Anr. v. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108 and State of H.P. & Ors. v. Gujrat Ambuja Cement Ltd. reported in (2005) 6 SCC 499. According to Mr. Basu, in view of the arbitration agreement contained in the letter of allotment issued by the petitioner and the terms and conditions of allotment of the flat to the petitioner, the learned State Commission lacks the jurisdiction to entertain the said complaint and it has passed the impugned order in wrongful assumption of jurisdiction. He strenuously contended that in the instant case while passing the impugned order the State Commission did not consider the application filed by the petitioner under Section 8 of the Act of 1996 on merit. Relying on the Single Bench decision of this Court in the case of Auro Developers v. Mala Mukherjee reported in 2012(1) CHN (Cal) 543, as well as an unreported Single Bench decision dated June 23, 2016 passed by a learned Single Judge of this Court in C.O. 508 of 2016 in the case of Unnayan Builders Pvt. Ltd. and Anr. v. Malay Barman and Anr., Mr. Basu submitted that if the subject matter of dispute before the State Commission under the Act of 1986 is covered by in arbitration agreement between the parties it is the mandatory obligation on the part of the State Commission to refer the parties to arbitration and the present revisional application is maintainable to challenge the impugned order passed by the learned State Commission.

With regard to the merit of the revisional application it was submitted on behalf of the petitioner that undisputedly the opposite party no. 1 obtained the allotment of the said flat on the basis of the said letter of allotment issued by the petitioner and the terms and conditions annexed thereto and, clause 19 whereof provides that all disputes arising out of the allotment and the terms and conditions applicable to the said allotment shall be referred to the sole arbitration of the named arbitrator. It was urged that in view of the said arbitration agreement the learned State Commission fell in error of law in rejecting the application filed by the petitioner under Section 8 of the Act of 1996.

However, Mr. Ghosh, learned advocate appearing for the opposite party no. 1 contended that Section 3 of the Act of 1986 in clear terms provided that the provisions of the said Act are in addition to and not in derogation of any other law from the time being in force. Therefore, according to him, the jurisdiction of the State Commission, under Section 17 of the Act of 1986, cannot be affected by the provisions contained in Section 8 of the Act of 1996. In this regard, he relied on the decision of the Supreme Court in the case of Nivedita Sharma (supra) and in the case of Rosedale Developers Pvt. Ltd. v. Aghore Bhattacharya and Ors. reported in (2015) 1 WBLR (SC) 385.

I have carefully considered the materials on record and the arguments advanced by the learned counsel appearing for the petitioner and the opposite party respectively. With regard to the first point that fell for consideration before this Court, with regard to the maintainability of the present revisional application it is well settled law that the rule of exclusion of writ of jurisdiction and revisional jurisdiction under Articles 226 and 227 of the Constitution of India, respectively by availability of alternative remedy is a rule of discretion and not one of the compulsion and the Court must consider the pros and cons of the case and then may interfere in its writ or revisional jurisdiction if it comes to the conclusion that the petitioner seeks enforcement of any fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. If an authority is looked for such view the same may be found in the decision of the Supreme Court in the case of Harbanslal Sahnia v. Indian Oil Corporation Ltd. reported in (2003) 2 SCC 107 which was applied by the Supreme Court in the case of Gujrat Ambuja Cement Ltd. (supra).

In the present case, however, the impugned order passed by the learned State Commission cannot be faulted as an order without jurisdiction or an order violative of principles of natural justice. Therefore, in view of the amended provisions in Section 37(1)(a) of the Act of 1996 the remedy of the petitioner to challenge the impugned order passed by the learned State Commission lies in preferring an appeal before the National Commission and not by filing a revisional application under Article 227 of the Constitution of India before this Court. Accordingly, I uphold the contention raised on behalf of the opposite party no. 1 that in view of the alternative remedy available to the petitioner to prefer an appeal against the impugned order before the National Commission under Section 37(1)(a) of the Act of 1996, the present revisional application is not maintainable. The decision of a learned Single Judge of this Court in the case of Auro Developers (supra) was rendered before the Section 37(1)(a) of the Act of 1996 came into force and as such the said decision cannot be applied in this case. So far as the unreported decision of another learned Single Judge of this Court in the case of Unnayan Builders Pvt. Ltd. (supra), although the same was decided after the provisions in Section 37(1)(a) came into force, but there the point of maintainability of the revisional application was not raised. Thus, the said decision has no bearing on the issue raised in this application with regard to the maintainability of the revisional application against an order rejecting an application under Section 8 of the Act of 1997.

For all the foregoing reasons, the revisional application, being C.O. 3638 of 2016 stands rejected.

Since, the revisional application is not entertained on the ground of available alternative remedy, this Court has not gone into the merits of the contention raised on behalf of the petitioner to challenge the impugned order. The petitioner will be free to approach the learned National Commission, if it so desires by invoking Article 14 of the Limitation Act.

However, there shall be no order as to costs.

Urgent certified copies of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.