Joydeep Roy & Anr vs Srijan Residency Llp & Ors
2023 Latest Caselaw 6820 Cal

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                  IN THE HIGH COURT AT CALCUTTA
                        CIVIL APPELLATE JURISDICTION
                               APPELLATE SIDE


   PRESENT:
   THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY

                             CO 2846 of 2023

                           JOYDEEP ROY & ANR.
                                 VERSUS
                       SRIJAN RESIDENCY LLP & ORS.

   For the Appellant               : Mr. Pradip Kumar Roy, Adv.,
                                     Mr. Tirthajit Roy Chowdhury, Adv.,
                                     Mr. Nasiruddin Molla, Adv.,



   For the Respondent              : Mr. Siddhartha Banerjee, Adv.,

Mr. Rahul Karmakar, Adv., Mr. Abhisek Baran Das, Adv., Mr. Srijoni Chongdar

Hearing concluded on : 3rd October, 2023

Judgment on : 6th October, 2023

Siddhartha Roy Chowdhury, J:-

1. This application under Article 227 of the constitution of India

impeaches the Order No. 1 passed in Miscellaneous Appeal No.

272 of 2023 passed by Ld. District Judge 24 Parganas, Alipore. By

the Order impugned Ld. District Judge was pleased to reject the

prayer for ad interim injunction made by the petitioners.

2. For the sake of convenience, the parties to this proceeding would

be referred to as they have been arrayed in the suit.

3. Briefly stated the plaintiff No. 1 an Advocate by profession and

plaintiff No. 2, and Assistant Professor of a College decided to

purchase a flat to be constructed by the defendants and after

having a detailed discussion with the defendant No. 2 the plaintiffs

expressed their desire to purchase the residential unit and the

defendants agree to sell the same on 14th of February, 2023.The

plaintiffs visited office of the defendants at Bata Nagar and having

seen model flat, the plaintiffs decided the purchase a flat

measuring about 1307 sqft. at Tower/ Block 14, Flat No. 13 D,

13th Floor of The Royal Ganges Project at premises No. C-4-173/

New Ganga Bandh Road, 24 Parganas (South), at the rate of Rs.

4200/- sqft.

4. The plaintiffs executed/signed the booking form and paid a sum of

Rs. 210000/- in favour of defendant No. 2 by cheque, which was

duly encashed. A provisional allotment letter was issued to the

plaintiffs and the plaintiffs paid a further sum of Rs. 489723/- to

the defendant No. 1 & 2 through online transfer/RTGS.

5. The plaintiffs thereafter obtained the housing loan from HDFC

Ltd., Deshopriya Park Branch and tripartite agreement was

executed among the plaintiffs, defendant No. 1 and the Bank.

6. The plaintiffs thereafter made payment to the tune of Rs. 241881/-

towards stamp duty required for registration of the agreement. The

defendant company thereafter forwarded draft agreement for sale

on 25.07.2023. After going through the said draft the plaintiff

failed to pursue themselves to agree to various clauses

incorporated in the said agreement as the plaintiffs considered

those clauses unlawful arbitrary in nature and pointed out the

same to the concerned authority of the Srijan Residency, LLP/

Srijan Realty Pvt. Ltd. with a request to delete those clauses and

copy of the e-mail was forwarded to RERA for their information and

necessary action.

7. On 28th July, 2023 the plaintiffs received an e-mail from defendant

No. 1 & 2 informing the plaintiffs that the management cancelled

the booking of the plaintiffs in the Royal Ganges Projects.

According to the plaintiffs such decision was malafide and in the

breach of principal of natural justice. There was trading of some

communications between the parties but the defendants refused to

adhere to the requests made by the plaintiffs to delete the unlawful

clauses in the agreement.

8. The plaintiffs, therefore, were left with no other option but to

approach the court of law and filed the suit before the Ld. 7th Court

of Civil Judge (Senior Division), Alipore, registered as Title Suit No.

1054 of 2023 and moved an application with prayer for ad interim

order injunction directing the defendants not to create any 3rd

party interest over the suit property, but such prayer was refused.

9. Aggrieved thereby the plaintiffs preferred an appeal before the Ld.

District Judge, 24th Parganas (South) under Order XLIII of the Civil

Procedure Code and it was registered as Miscellaneous Appeal No.

272 of 2023 and prayed for an ad interim order of injunction but

Ld. District Judge, refused to grant relief and passed the impugned

order.

10. Challenging the order of the Ld. District Judge Mr. Pradip Roy,

submits that Ld. District Judge failed to appreciate the urgency

involved in the matter, warranting an exparte order of injunction.

Drawing the attention of the court to some of the clauses

incorporated in the agreement Mr. Roy submits that the clauses by

which the company reserves the right to mortgage the property to

be acquired by the plaintiffs is contrary to public policy in as much

as the purchasers as borrowers shall have to mortgage the

property with bank to secure loan.The defendant no.1 and 2

cannot mortgage the property of others. There is a clause that if

the maintenance amount falls due there would be discontinuance

of supply of electricity, water even the entry at the gate would

restricted and in case the arrears of maintenance exceeds Rs.

50000/- the Promoter/Association would acquire a right to sell the

flat. According to Mr.Roy this is height of absurdity.

11. It is a adverted by Mr. Roy that the defendant No. 1 & 2 with

malafide intention consciously incorporated such unlawful

condition or terms in the agreements. It is nothing but a ploy to

mint money. The plaintiffs were told to book the flat at the rate of

Rs. 4200/- sqft. but had to pay at the Rs. 4800/- and if the

defendant No. 1 & 2 could cancel the booking they can sell the flat

at a much higher price. This unethical trade practice cannot be

encouraged.

12. Refuting such contention of Mr. Roy, Mr. Siddhartha Banerjee, Ld.

Counsel representing defendants submits that the suit as framed

is not maintainable in view of section 79 of the Real Estate

(Regulation and Development) Act, 2016 (herein after referred to as

RERA Act). The provision of section 88 of RERA Act is applicable

only in case of proceeding taken out under the Consumer

Protection Act. To buttress his submission Mr. Banerjee relies

upon the Judgement of the Hon'ble Supreme Court in Imperia

Structures Limited vs. Anil Patani and Anr. reported in (2020) 10

SCC 783. It is further submitted by Mr. Banerjee that the plaintiffs

are quite conscious about this provision of law which is why a

formal complaint has also been lodged with the Chairman and

Secretary of West Bengal Real Estate Regulatory Authority on 31st

day of July, 2020 and thereafter the suit was filed on 4th of August,

2023. It is further contended by Mr. Banerjee that the plaintiff,

having surrenderred to the jurisdiction of West Bengal Real Estate

Regulatory Authority are estopped from knocking the door of Civil

Court. In support of his contention Mr. Banerjee relies upon the

judgement in Ireo Grace Realtech Private Limited Vs. Abhishek

Khanna and Ors. reported in (2021) 3 SCC 241.According tto

Mr.Banerjee the defendant no 1 and 2 can mortgage the

property,to be developed,so long they retain their ownership over

the property .The draft agreement contains such recital as well.

13. In exercise of his right to reply it is contended by Mr. Roy that two

kinds of law can always operate on a single field. According to Mr.

Roy the Specific Relief Act recognizes the specific performance of

contract and a contract can very well be enforced before an

Arbitrator if the agreement contains an arbitration clause.

Similarly having entered into an agreement by executing the

booking form and by depositing the booking money, stamp duty

etc. the plaintiffs have discharged their obligation and they are

entitled to approach the Civil Court for appropriate relief. In

support of his contention Mr. Roy places his reliance on a

judgement of the Hon'ble Division Bench of this court in Mandira

Mookerjee Vs. District Consumer Disputes Redressal Forum and Ors.

reported in AIR 2005, Calcutta-108.

14. It is further contended that The West Bengal Real Estate

Regulatory Authority is presently not functioning and the plaintiffs

cannot be left at lurch and remediless.This is a fit case to exercise

the jurisdiction conferred under Article 227 of the Constitution of

India.

15. Section 79 of the RERA Act says:-

"79 Bar of jurisdiction-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act".

16. Thus upon plain reading of the aforesaid provision, it is

abundantly clearl that the plaintiffs cannot initiate proceeding

before a fora called a Civil Court. There is clear ouster of

jurisdiction of Civil Court. In this regard we can profitably rely

upon the judgement of Hon'ble Supreme Court in Imperia

Structures Limited (Supra).

" 27. Section 79 of the RERA Act bars jurisdiction of a civil court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect not withstanding anything inconsistent contained in any other law for the time being in force.

28. On plain reading of Section 79 of the RERA Act, an allottee described in Clause (B) stated in para 24 hereinabove, would stand barred from invoking the jurisdiction of a civil court ........"

29. XXX

30. XXX

31. XXX "32. ............ The absence of bar under Section 79 to the initiation of proceedings before a fora a which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under the said section is 'without prejudice to any other remedy available'. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act".

17. Mere submission of booking form coupled with payment of booking

amount does not constitute an agreement per se. There was an

offer and the plaintiffs are not in a position to accept the same, as

they do have some reservation in respect of some of the clauses.

There was no meeting of mind between the parties, one is unwilling

to accept the offer given without suggested modification and the

other party , not willing to effect any change as suggested

,cancelled the booking and intended to walk out. Therefore, the

argument advanced by Mr. Roy as to the applicability of Specific

Relief Act to enforce the agreement, does not inspire any

confidence, in absence of any contract between the parties.

18. From the conduct of the plaintiffs it appears that the plaintiffs are

quite aware of the jurisdiction of West Bengal Real Estate

Regulatory Authority to adjudicate the issue. Having approached

the competent authority under the RERA Act on 31.7.2023, without

giving the authority the breathing time, consciously the plaintiffs

approached the Civil Court and filed the suit on 4.8.23. When the

Civil Court is bereft of jurisdiction to entertain such suit, the

application filled under Article 227 of the Constitution of India

challenging the order passed by a Civil Court, becomes devoid of

merit and is liable to be dismissed, which I accordingly do.

19. Though Mr. Banerjee argues on the point of estoppel by doctrine of

election, when there is clear ouster of jurisdiction of Civil Court, I do

not find any reason to return the issue, as raised by Mr. Banerjee

more so, when the Plaintiff could not have filed the suit before the

Civil Court.

20. Before parting with the case, I would like to hold further that the

Title Suit No. 1054 of 2023 is not maintainable so is the fate of

Miscellaneous Appeal No. 272 of 2023 in view of the statutory

mandate as laid down under Section 79 of the RERA Act,2016 and to

avert the abuse of process of law, I am inclined to dismiss both the

proceedings.

21. The revisional application is dismissed on contest, however, without

any order as to costs. However it is made clear that nothing has been

decided touching upon the merit of the case and this will not

preclude the petitioner from seeking redressal before appropriate

forum.

22. Copy of this judgement be sent to Ld. Trial Court and Ld. District

Judge, Alipore, for information and necessary action.

23. Urgent photostat copy if applied therefor, be made available subject

to compliance of usual formalities.

(Siddhartha Roy Chowdhury, J.)