Sri Ramesh Paul vs Manoj Kumar Singh And Another
2023 Latest Caselaw 5716 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                              CO 1638 of 2019
                               Sri Ramesh Paul
                                      Vs
                      Manoj Kumar Singh and another


For the Petitioner                    :       Mr. Partha Pratim Roy
                                              Sk. Moinuddin
                                              Ms. Swapna Mitra (paul)


For the Opposite Parties              :       Mr. Ezaz Khan
                                              Mr. Pradip Kumar De
                                              Ms. Ananya Adhikary
                                              Mr. Amit Pachal


Heard on                              :       03.08.2023

Judgment on                           :       30.08.2023

Ajoy Kumar Mukherjee, J.

1. Order impugned dated 1st march 2019 passed by the Learned State

Consumer Disputes Redressal Commission, West Bengal in First Appeal no.

A/745/2017 (arising out of order dated 28.04.2017 passed by the Learned

the District Forum at Howrah in CC/356/2016) has been assailed by way of

filing present application under article 227 of the constitution of the India.

2. Petitioner herein contended that petitioner filed a complain case

before the District Forum contending that the opposite parties are the

owner of land more or less 3 Katha 15 square feet comprised holding no.

37/1 and 37 , I.R Belilious Lane, Howrah, wherein they have constructed

and developed one G +3 building over the said property and offered to sell

one shop room measuring about 150 square feet area together with

undivided proportionate share of land, including all sorts of common

facilities on the ground floor and the petitioner herein for earning his daily

livelihood, desired to purchase the same and accordingly one agreement for

sale was prepared on 04.04.2012, which was notarized on 04.05.2012. The

total consideration price for the same was settled at Rs. 12 lakh and

petitioner paid earnest money of Rs. 2 lakh and obtained receipt on

21.04.2012. On 07.06.2012 the petitioner further paid Rs. 5 lakh by two

separate cheques and the opposite party no. 1 herein issued two separate

receipts. On 23.07.2012 the petitioner further paid Rs. 67,000/- by cheque

being no. 255664 dated 24.07.2012 after obtaining money receipt on

23.07.2012. Thereafter petitioner paid Rs. 1 lakh 33 thousand by cash.

3. Petitioner further contended that the petitioner repeatedly requested

the opposite parties to receive the rest amount to execute the deed of sale

but they have deliberately failed to discharge their duty and for which the

petitioner sent a legal notice through his Learned advocate on 08.11.2016

but as opposite parties did nothing the petitioner herein was compelled to

file the complain case before Learned District Consumer Dispute Redressal

forum at Howrah being case no. 356 of 2016, which was decided by the

said Forum on 28.04.2017, allowing the said case exparte with costs

against the opposite parties, with a direction to execute and register the

sale deed within one month and also to pay Rs. 50,000/ out of which Rs.

40,000/- is to be deposited at the Consumer Legal Aid A/c and the rest is

to be paid to the petitioner herein towards compensation.

4. Feeling arrived by the said order the opposite parties herein filed

aforesaid appeal before the State Consumer Disputes Redressal

Commission, West Bengal, being appeal no. 745 of 2017, which came up

for hearing on 01.03.2019. Learned State Commission observed that the

case of the petitioner does not come within the purview of Consumer

Protection Act, 1986 and set aside the order of the learned District Forum

but liberty was given to the petitioner to approach before appropriate court

in accordance with law for getting the said deed executed.

5. Mr. Partha Pratim Roy learned counsel appearing on behalf of the

petitioner submits that the matter may be decided as per provision of the

Building Act along with the provisions under Consumer Protection Act. He

further submits that the opposite parties have received Rs. 9 lakh out of

Rs.12 lakh. Mr. Roy further contended that in the agreement the opposite

parties have clearly mentioned to provide "service" to the petitioner and as

per written agreement the petitioner has invested huge money towards the

service and as such the dispute comes within the definition of "consumer

dispute". In fact State Commission has erred in law and facts in deciding

the issue in favour of the opposite parties. The opposite party at the time of

filling appeal before the State commission, did not comply the order dated

28.04.2017 passed by the District Forum. In this context Mr. Roy further

contended that under section 41 of the Consumer Protection act 1986, no

appeal by a person who is required to pay any amount in terms of an order

of the District Forum, shall be entertained by the State Commission,

unless the appellant has deposited fifty percent of that amount.

6. He further submitted that in view of reported judgment in Universal

Consortium of Engineering (P) Ltd. and other Vs. State of West Bengal

reported in (2019) 1 Cal LT 580 (HC), the present Revisional application

is maintainable and is to be decided on merit.

7. In support of his case petitioner further relied upon following

judgments: -

(1) Arifur Rahman Khan Vs. D.L.F southern Home Ltd. And other,

(2020) 16 SCC 512

(2) Black Diamond Track Parts Pvt. Ltd. And others Vs. Black

Diamond Motors Pvt Ltd, 2022 SCC OnLine Del 545

(3) Ganesh Lal Vs. Shyam, (2014) 14 SCC 773

(4) L&T finance Limited Vs. Anup Kumar Bera and Other III (2014)

CPJ 124 (Cal)

(5) Sri Ranjit Kumar Chakraborty and other Vs. Smt. Sandha Modak

and others.

8. Mr. Ezaz Khan Learned counsel appeared on behalf of the opposite

party, contended that the State Commission has clearly observed that the

alleged disputes cannot be treated as "consumer disputes" as there is no

element of service in the said agreement for sale and the petitioner intended

to purchase the shop room from the owners "AS IS WHERE BASIS" which is

a sale simpliciter. He further contended that the petitioner herein without

preferring any Revisional Application under section 21(b) of the Consumer

Protection Act 1986, before the National Consumer Disputes Redressal

Commission at Delhi, filed the present application under Article 227 of the

Constitution of India.

9. Mr. Ezaz Khan in this context contended that the present application

under article 227 of the constitution of India is not maintainable as the

petitioner had chosen the Forum constituted under the Consumer

Protection Act 1986 under section 12 of the Act, Accordingly if the petitioner

has any grievance against the order of state commission he ought to have

preferred revisional application before national commission.

10. Mr. Khan strenuously argued that the supervisory power of the High

court can be invoked only when there is gross miscarriage of Justice or

abuse of process of court, which is glaring on the face of record. In the

present application petitioner has not made out any such case of irregularity

and as such the present application is not maintainable. This is also

because High Court is not a statutory appellate authority nor a revisional

authority under the Act of 1986. The respondent in support of his

submission relied upon the case of

(1) Manager, HDFC Bank Ltd. Vs. SK Sahidul Haque,

2012 (1) Cal L T 285

(2) Cicily Kallara Ckal Vs. Vehicle factory, (IV) 2012 CPJ 1

(SC) 1

(3) R. Jaivel Vs. state of Tamil Nadu, AIR (2006) Madras

11. Mr. Khan further submitted that the petitioner herein has admitted

the opposite parties as the owners and the agreement for sale entered by

and between the petitioner and opposite parties are purely agreement for

sale of shop room and there is no element of service which is to be

provided by the respondent as developer and as such the State

Commission being the Appellate Authority rightly held that the agreement

between the parties are of sale simpliciter and the petitioner is not a

consumer within the meaning of the Act of 1986. Opposite parties in this

context also relied upon an unreported judgment of this court in CO no

3357 of 2016 (Sri Ranjit Kr Chakraborty and other Vs. Smt Sandha

Modok and other). Accordingly opposite party herein has prayed for

dismissal of aforesaid application.

12. Before going to further details let me consider whether section 21 (b)

of the Consumer protection Act 1986 (now under section 58 (b) of the

Consumer Protection Act 2019) attracts in the present case or not. Section

21 of the Consumer protection Act runs as follows.

"21. Jurisdiction of the National Commission.--Subject to the other provisions of this Act, the National Commission shall have jurisdiction--

(a) to entertain--

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds 1[rupees one crore]; and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."

13. Admittedly in the present context the petitioner had chosen the Forum

constituted under the Consumer Protection Act, to redress his grievance by

filing application under section 12 of the Consumer Protection Act 1986.

The other side preferred an appeal against the order passed by the District

Forum and State Forum have decided the issue against the present

petitioner. Accordingly it can be said that state Forum has exercised

jurisdiction of the appellate Forum in dealing with the aforesaid appeal and

as such the petitioner who is feeling aggrieved by the order of the State

Forum can prefer revision before Hon'ble National Commission. Section

21(b) makes it clear that the national Commission has jurisdiction to call

for the records from the state Commission and if the national Commission

is of the view that the order impugned is based on any perverse finding, it

can set aside the order. Accordingly the petitioner can very well agitate his

grievances before the National Commission for redressal. When the

National Commission can have the jurisdiction to call for the records from

the State Commission then naturally alternative remedy is available to

approach the National Commission. In the present case since such remedy

has not been exhausted, I am of the view that approaching this court

under Article 227 cannot be said as proper. Once the legislature has

provided for a statutory Appeal/Revision to a Higher Forum it cannot be

proper exercise of jurisdiction to permit the parties to bypass the statutory

appeal/Revision to such higher Forum and entertain petition in exercise of

this court's power under article 227 of the Constitution of India.

14. It is settled law when an equal efficacious alternative remedy is

available, the High Court is not supposed to exercise its supervisory

jurisdiction or power unless the order impugned reflects a gross

miscarriage of Justice or abuse of process of court, glaring on the face of

the impugned order. This court also certainly has jurisdiction under Article

227 to set aside the wrong committed in any order of the forum below, if

the impugned order is wholly without jurisdiction. In the present case the

petitioner has not made out any such case that the order of the State

Forum is without jurisdiction. In such situation I am of the view that this

court ought not to have entertained such application under Article 227 of

the Constitution of India, since Revision lies before the National

Commission against the order impugned. It is well settled that High Court

in exercise of its jurisdiction can interfere any order only to keep the

Tribunals and Courts subordinate to it within its bound of their authority

and it must not act as a court of appeal. Therefore, I am of the view that

this court should not go into the merits of the judgment passed by State

Forum. It would be fit and proper for the petitioner to approach before the

Appropriate Forum to ventilate his grievance or before Civil Court in terms

of liberty granted by State Forum to get his remedy, if any.

15. C.O. 1638 of 2019 thus stands dismissed. However, this order will

not preclude the petitioner from agitating his grievance before the

Appropriate Forum/Authority, subject to other provisions of law including

law of limitation. Since there is nothing to show that the error committed in

preferring the present Application under Article 227 of constitution of India

before this court is malafide, if an application for condonation of delay is

filed in preferring Revision or institution of suit, that might be considered

by the concerned Authority/Forum in accordance with law.

Urgent Photostat certified copy of this order, if applied for, be supplied to

the petitioner, on priority basis on compliance of all usual formalities.

(AJOY KUMAR MUKHERJEE, J.)