Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 405 (CAL)

RABINDRA NATH HAIDER v. AJOY KUMAR DEBNATH

2007-06-07

ARUN KUMAR BHATTACHARYA

body2007
ARUN KUMAR BHATTACHARYA, J. ( 1 ) THE present revisional application under article 227 of the Constitution of India is directed against the order being No. 34, dated October 19, 2006 passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in Money Suit No. 2 of 2004 refusing the prayer of the petitioner/defendant No. 1 to frame two preliminary issues relating to jurisdiction of the Court to try the suit. ( 2 ) THE circumstances leading to the above application are that the O. P. /plaintiffs instituted the above suit for realization of Rs. 7 lakh towards advance (Rs. 5 lakh) for a flat, interest @ 18% p. a. and damages, as the O. P. /defendant no. 1 failed to construct and hand over the flat in question within the stipulated period as per agreement. The petitioner after entering appearance filed a petition under Order 14 Rule 2 read with section 151 CPC praying for framing two issues on the question of jurisdiction of the Court to try the suit in view of the provisions of West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, hereinafter referred to as the said Act, which was turned down by the impugned order. ( 3 ) BEING aggrieved by the said order, the petitioner has landed in this Court. ( 4 ) MR. Bhattacharya on referring to the definitions of "promoter" and "purchaser" as embodied in section 2 (g) and (h) respectively, section 6 and section 12a of the said Act advanced argument contending that as it is a dispute falling within the purview of section 6 arising out of an agreement between, his client and the O. P. /plaintiffs, the Civil Court has no jurisdiction to entertain and decide the same in view of the bar created by the provision of section 12a of the act, in support of which he relied upon a Division Bench decision of this Court rendered in Narayan Chandra Ghosh vs. Biswajit Lahiri, reported in 2006 (1)CHN 401 . Mr. Mondal, learned Counsel for the O. Ps. Mr. Mondal, learned Counsel for the O. Ps. , on the other hand, contended that as it is a simple money suit for recovery of the advance amount together with interest and damage arising out of breach of the contract and falling under the purview of section 73 of the Contract Act and since the agreement dated January 15, 2002 between the parties was ultimately cancelled, as averred in paragraph 7 of the plaint, the suit does not come under the mischief of the provisions of the said Act nor the decision so relied upon by the learned counsel for the petitioner is attracted here. ( 5 ) UNDER Rule 2 of Order 14 CPC, in order to eliminate delay two types of issues can be decided as preliminary issue viz (1) issue relating to jurisdiction and (2) issue relating to bar to the suit created by any law for the time being in force. Where the question is pure one of law, it should be decided as a preliminary issue. So, where an issue will not necessitate investigation into facts and relates to the jurisdiction of the Court or being barred by law, it can be tried as a preliminary issue. In the case on hand, the issue involved is whether the Court has any jurisdiction to entertain and try the suit in view of section 12a (1) of the said Act. ( 6 ) FOR proper appreciation of the respective contentions of the learned counsel for the parties as depicted above, definitions of "promoter" and "purchaser" as contained in section 2 (g) and (h) respectively and two provisions as embodied in sections 6 and 12a of the Act are reproduced hereunder: (g) "promoter" means a person who construct of causes to be constructed a building on a plot of land for the purpose of transfer of such building by sale, gift or otherwise to any other person or to a company, co-operative society or association of persons, and includes - (i) his assignee, if any, (ii) the person who constructs, and the person who transfers by sale, gift or otherwise, the building, if the two are different persons, ***** (h) "purchaser" means any person who, under section 7, enters into an agreement with the promoter for the purchase of a flat. 6. 6. Adjudication of disputes.- Any purchaser may, if he has any dispute regarding the purchase of any flat, make an application in such form as may be prescribed to such officer as the State Government may appoint for adjudication of the dispute in such manner as may be prescribed. 12a. Bar on jurisdiction of Court.- (1) No Civil Court shall have any jurisdiction to entertain or decide any question relating to matters arising under any provision of this Act or the rules made thereunder. (2) Every order passed by the authorized officer which is subject to appeal or revision, every order passed by the authority referred to in sub-section (1) of section 5, and every order passed by the officer referred to in section 6, which is subject to revision, and every order passed by the State Government in revision, shall be final and shall not be questioned in any Court of Law. ( 7 ) THE aforesaid section 6 provides remedies to the purchaser regarding purchase of any flat. Any purchaser can apply to an officer appointed by the state Government for adjudication if there is any dispute regarding the purchase of any flat. The expression "any dispute regarding the purchase of any flat" cannot be narrowly interpreted, as it is wide enough to include any kind of dispute arising out of transaction between a promoter and a purchaser of a flat. So, merely because the agreement has been cancelled, as averred in paragraph 7 of the plaint, the claim for refund of the advance amount of Rs. 5 lakh together with interest and damage stemming from the said agreement, which has also been made clear from the term "as per agreement" in paragraph 8 of the plaint, does not cease to be a dispute within the meaning of said section 6, and as such the above contention of Mr. Mondal is not at all sustainable. ( 8 ) A glance to the provision of section 12a (1) of the Act will reveal that it ousts the jurisdiction of the Civil Court to entertain or decide any question relating to matters under any provisions of the Act or rules made therein, no matter whether the dispute arises out of breach of a contract or otherwise. ( 8 ) A glance to the provision of section 12a (1) of the Act will reveal that it ousts the jurisdiction of the Civil Court to entertain or decide any question relating to matters under any provisions of the Act or rules made therein, no matter whether the dispute arises out of breach of a contract or otherwise. Even a suit for recovery of money paid pursuant to an agreement for purchase of a flat falls within the purview of the said Act. In this connection, reference may be made to the case of Narayan Chandra Ghosh (supra) which stands for the proposition that not only the relief of specific performance of contract but even the prayer of recovery of money paid pursuant to an agreement for purchase of flat is a dispute within the compass of the Act. ( 9 ) THEREFORE, the decision of the learned Court below is patently wrong. ( 10 ) AS such, the revisional application be allowed and the impugned order is set aside. ( 11 ) LET a copy of this order be sent down at once to the learned Court below with a direction to frame a preliminary issue as pointed out above and to decide the said issue as a preliminary issue within a period of one month from the date of communication of the order. ( 12 ) LIBERTY is granted to the learned Counsel for the parties to take down the gist of the order for the purpose of communication to the learned Court below. Revisional application allowed.