Vedic Conclave Private Limited & 3 Ors vs Tapan Dutta

Subhash Chandra, Member

This is a first appeal against an order in CC no. 399 of 2016 dated 04.10.2018 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State Commission’) directing the appellant to refund Rs.15,42,653/- to the respondent from the date of each payment till the date of realisation along with litigation cost of Rs.10,000/- on account of delay in handing over the possession of residential flat booked with the appellant.

The impugned order reads as under:

With the above discussion, the complaint is allowed on contest with the following directions:

i. The opposite party nos.1 to 4 are jointly and severally directed to refund Rs.15,42,653/- in favour of the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till its realisation;

ii. The opposite party nos.1 to 4 are jointly and severally directed to pay Rs.10,000/- to the complainant as costs of litigation; and

iii. The above payments must be paid within 60 days from the date.

Brief facts of the case are that the respondent/ complainant had booked a residential flat unit no.1A, Ground Floor, Block 5 along with 1 car parking space in ‘Sanjeeva Orchards II’ at Mouza Thakdari, P W Newtown, 24 Parganas, Mahish Bathan II, Gram Panchayat ad measuring 1165 sq ft super built up area for a sale consideration of Rs.49,60,000/- on 30.03.2013. As per the agreement between the parties dated 30.03.2013, the appellant under took to hand over the flat within 30 months of this agreement with grace period of six months, i.e., by 01.04.2016. The respondent approached the State Commission after issuing notices dated 06.04.2016 and 15.04.2016 seeking refund of the money paid along with interest in view of the inordinate delay in handing over the possession and lack of response from the appellant.

The appellant has mainly contended that the State Commission lacks pecuniary jurisdiction to consider the appeal in terms and that in view of there being a clause for arbitration in the agreement, the appellants are stopped from filing the instant appeal. It is also submitted that the appellant 2, 3 and 4 are the land owners and not the developers of the concerned unit and are not the service providers under section 2 (1) (o) of the Consumer Protection Act, 1986. Therefore, the appeal is liable to be dismissed on the grounds of misjoinder of parties.

The respondent has contested the contention of the appellant on the ground that the State Commission had pecuniary jurisdiction in view of the value of service as per the agreement for sale being Rs.46,60,000/- and inclusive of the cost of car parking space of Rs.3.00 lakh and compensation of Rs.5.00 lakh, the complainant is within the pecuniary  jurisdiction of the State Commission.

As regards the issue of arbitration, it is averred by the respondent that the arbitration clause in the agreement is not a bar to an appeal under the Consumer Protection Act, 1986, as has been laid by the Hon’ble Apex Court. It is also argued that the respondent could not have kept waiting indefinitely for the possession of the flat as per the judgment of the Hon’ble Supreme Court and that the appeal deserves to be dismissed.

The appellant herein did not file any defence in response to the respondents reply and written arguments.

We have heard the arguments of the learned counsel for the respondent and perused the records. The issue of pecuniary jurisdiction was considered by this Commission in Ambrish Kumar Shukla and Anr vs Ferrous Infrastructure Limited and Ors., in CC no. 97 of 2016 and subsequently in the case of Renu Singh vs Experion Developers Pvt. Ltd., (CC no. 1703 of 2018). It was held that pecuniary jurisdiction of a consumer forum will be determined by the sale consideration and damages claimed. Therefore, the State Commission has rightly considered the pecuniary jurisdiction in the instant case by considering the pecuniary jurisdiction incorporating sale consideration and compensation claimed in terms of Section 47 relating to the State Commission. As far as the issue of arbitration is concerned it has been held by the Hon’ble Supreme Court in Aftab Singh vs Emaar MGF Land Ltd., and Anr – I (2019) CPJ 5 (SC) that an arbitration clause in the agreement does not bar the jurisdiction of the Consumer Fora to entertain the complaint. In line with these judgments, we find no reasons to interfere with the decision of the State Commission. We do not find any merit in the appeal, which is accordingly dismissed.