HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal has been filed under section 41 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) challenging the order dated 21.12.2021 passed by the Learned Addl. District Consumer Disputes Redressal Commission, Rajarhat, New Town ( in short, ‘the District Commission’) in connection with M.A. Case No. 42 of 2021 arising out of Consumer Case No. 270 of 2020.
- The complainants filed a petition of complaint being No. CC/270/2020 praying for the following reliefs :-
“i) That the Opposite Party No. 2 being the sole proprietor of the Opposite Party No. 1 be directed to hand over the 50% (Fifty Percent) Garage space and one Flat in the Ground Floor (South-East side, back portion) according to sanctioned Building Plan of the said proposed Building within the period as may be fixed by the learned Forum.
ii) That the Opposite Parties be directed to hand over the possession certificate in respect of the Owners’ allocation and completion certificate for the building as well as the occupation certificate in respect of the flats and garages falling within the Owners’ allocation.
iii) That the Opposite parties be directed to pay to the petitioners a sum of Rs.5,00,000/- as and towards compensation for harassment suffered by the petitioners at his hand.
iv) That the Opposite parties be directed to pay cost of the complaint.
v) That any other relief to which the petitioners are entitled under law, equity and natural justice be passed.”
3. The opposite parties entered into an appearance in this case and contested the case by filing written version. Thereafter, the opposite parties No. 1 & 2 filed an application challenging the maintainability of the complaint case being No. M.A. 42 of 2021. The Learned District Commission below was pleased to consider the said M.A. application No. 42 of 2021 and was also pleased to dismiss the consumer complaint being case No. 270/2020 by the impugned order.
4. Being aggrieved by and dissatisfied with the said order of dismissal, the opposite parties have preferred this instant appeal. Learned Lawyer appearing for the appellants has urged that the Learned District Commission below committed jurisdictional error in dismissing the complaint holding the same not maintainable. He further urged that the Learned District Commission below has acted illegally and without material irregularity in holding that in view of the pendency of proceedings under section 9 of the Arbitration and Reconciliation Act, 1996, the complainants have no right to file the consumer complaint on the self-same issue.
5. He has further urged that the Learned District Commission below failed to see that although under section 38(8) of the Consumer Protection Act, 2019, the District Commission has been vested the power to pass such interim order as is just and proper in the facts and circumstances of the case, such power has been abrogated under section 38(9) of the said Act and the said section 38(9)(a) to (f) no power has been vested in the District Commission to pass any interim order of injunction and for such reason the observation made in the impugned order that “But in our humble opinion interim relief is obtainable from this Commission also”, is completely erroneous both in law and in fact.
6. He has further urged that the impugned order based on total non application and misapplication of the judicial mind and it should be set aside.
7. On the other hand, Learned Advocate appearing for the respondents has urged that the Learned District Commission has passed the order legally. There is nothing on the record to interfere by this Commission. Learned Advocate appearing for the respondents has prayed for dismissal of the appeal.
8. Having heard the Learned Advocates appearing for both the parties and on perusal of the record it appears to us that the complainants / appellants filed a case under section 9 of the Arbitration & Reconciliation Act, 1996 against the respondents.
9. It also appears to us that the complainants / appellants filed a consumer case under section 12 of the Consumer Protection Act, 1986 before the District Commission alleging deficiency in service on the part of the opposite parties.
10. We find that arbitration clause on the agreement does not bar the jurisdiction of the Consumer Fora to enter the complaint, but in this case we find that the complainants / appellants have opted for the remedy and filed the complaint case under the Arbitration Act.
11. Learned Advocate appearing for the complainants has urged that the complainants have filed the complaint case before the District Commission praying for interim relief. Interim relief cannot be claimed before the Consumer Fora. We are of the view that the said submission made by the Learned Advocate appearing for the appellants cannot be accepted at all as because there is no bar to claim the interim relief before the Consumer Commission. Since the complainants / appellants have filed the case invoking the consumer clause we are of the view that the complaint case is, therefore, not maintainable at all.
12. The Hon’ble National Commission has held in a case reported in 2017 (2) CPR 277 ( National Commission) that “ provisions of Consumer Protection Act, 1986 cannot be used in derogation of the Arbitration & Reconciliation Act, 1996. “
13. Under these facts and circumstances and on consideration of the materials available on the record including the impugned judgment we find that the Learned District Forum properly considered facts and circumstances of the case and finally arrived at the conclusion and passed the impugned order which, according to us, calls for no interference by this Commission.
14. As such, it is liable to be affirmed and the appeal is also liable to be dismissed.
15. In the result, the appeal be and the same is dismissed without any order as to costs.
16. The appeal is thus disposed of accordingly.
