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TMI Blog2025 (3) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... diction in such manner, the regulatory authority cannot assume such jurisdiction. The exclusion of the jurisdiction of a Civil Court should not be inferred readily except when it is so excluded explicitly or by necessary implication and/or the statute in question provides adequate and satisfactory alternative remedy to a party; in other words, the ouster of Civil Court can only be assumed if the authority under the statute can exercise all powers vested upon the Civil Court. In the event the statute provides that the authority is vested with the power not only to adjudicate the dispute which is capable to be adjudicated by the Civil Court but also to execute the same in the manner as is done by the Civil Court, the exclusion can be inferred by necessary implication in absence of any express provision. Inspiration in this regard can be drawn from a Division Bench judgment of this Court in case of Mandira Mookerjee vs. District Consumer Disputes Redressal Forum & Ors., [2004 (12) TMI 737 - CALCUTTA HIGH COURT] where an identical issue arose whether the Consumer Forum is competent to pass an order for specific performance of an agreement for sale of an immovable property. It is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The instant appeal is against an ex parte ad interim order of injunction passed by the Trial Court at the behest of the defendant/respondent who neither appeared in the said suit at the time of passing impugned order nor filed the pleading raising such issue. We permitted the defendant to take such plea as we find the reference of the initiation of the proceedings before the RERA having pleaded by the plaintiff/respondent in the plaint as well as the temporary injunction application for the simple reason that if it is ultimately found that the jurisdiction or competence of the Civil Court is expressly or by necessary implication is barred under the RERA Act, any order be it ad interim, interim or temporary injunction would be regarded as a nullity. Shorn of unnecessary details, the plaintiff/respondent filed a suit before the Civil Court with the principal relief that the defendant/appellant may be directed to pay the remaining balance of the consideration amount agreed under the agreement for sale and to execute the deed of conveyance in respect of a flat covered under the said agreement for sale. In other words, it is a suit for specific performance of an agreement for sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avai vs. State of Madhya Pradesh reported in AIR 1969 SC 78, in support of the aforesaid contention that where the statute gives finality to an order of the special tribunals, the jurisdiction of the Civil Court must be held to be excluded provided such special statutes contained an adequate remedy to do what Civil Court would normally do. It is further held that in the event such provision does not exclude those cases where the provisions of the particular Act has not been complied with or statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the exclusion of the civil jurisdiction should not be normally inferred. Any point which strikes at the toot of jurisdiction or exercise of powers vested upon the Civil Court can be raised for the first time before the Appellate Court even the scope of the appeal is limited as the order impugned before the Appellate Court can be tested on the existence of a jurisdiction and the competence of the Court in passing the order of such nature and, therefore it is an ardent duty of the Court to satisfy its conscience on the conferment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to fulfil his obligations under the said agreement; rather filed a complaint before the West Bengal Real Estate Regulatory Authority which gave rise to the registration of WBRERA/COM000471 flagging an issue that the flat was not made ready for delivery of possession which was supposed to be done within a stipulated time nor possession is handed over as the completion certificate or the occupation certificate required to be obtained was not obtained in the said complaint. The defendant/respondent claimed an interest for such lapses on the part of the plaintiff/respondent and failure to comply with the obligations imposed under the RERA Act and the Rules framed thereunder. It is further alleged in the plaint that the defendant/appellant is avoiding to comply of a part of obligation agreed upon by and between the parties under the said agreement for sale and, therefore, a mandatory injunction be issued upon the defendant/appellant to pay the balance consideration price and also to execute the deed of conveyance in respect of the said flat. On the basis of the aforesaid facts pleaded in the plaint, an application for temporary injunction was filed for restraining the defendant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Government in extending the loan or finance to an individual in order to give impetus in the infrastructure development having a direct or indirect impact on the economic development of the country as well as the society at large. At one hand such liberalisation in extending the loan by the financial institution plays an important role in the economic development and uplifting of the peoples of the society but also put them into a vulnerable position because of such high financial exposure augmenting the insolvency in the event of failure to adhere the conditions imposed in this regard. The moment the home buyers avail the credit facilities from the financial institutions and becomes a creditor to them it was felt that the Real Estate sector which is completely unregulated in absence of any transparency in the business profile and to create a safeguard, the Act of 2016 was a significant milestone achieved in this regard in bringing a balance between the rights of the developer and the buyer. The Act mandates the registration of the project not only with regard to the completion of the project but also of the statutory obligation of the developer and the home buyer to abide by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the other statutory charges, if any, and in the event there is a failure in this regard the liability to pay interest at such rate as may be prescribed for delayed period. Section 31 of the said Act confers right on any aggrieved person to file a complaint before the regulatory authority for any violation or contravention of the provision of the Act or the Rules and Regulations made thereunder against the promoter; allottee or real estate agent as the case may be. Section 34 of the Act relates to the functions of the authority which includes the insurance of the compliance of an obligation cast upon the promoters, allottees and the real estate agents under the Act and the Rules and the Regulation made therein, as well as the order or direction made in exercise of such power. By Section 38, the powers have been vested upon the authority to impose penalty or interest, in regard to any contravention or obligation cast upon the promoters, allottees and real estate agent under the Act and to be guided by the principle of natural justice. The aforesaid Section is quoted as under: "38. Powers of Authority.- (1) The Authority shall have powers to impose penalty or interest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the factors enumerated under Section 72 as under: "71. Power of adjudicate. - (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard: Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act. (2) The application for adjudging compensation under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... real estate project and the obligations and liabilities of the promoter, allottee and the real estate agent as well as their respective obligations. A complete mechanism is provided for redressal of the grievances of the dispute not only to the allottee but also of the promoter and the real estate agent and therefore, equilibrium is created amongst the respective rights of the parties. By virtue of Section 11(4)(f) it is obligatory on the part of the promoter to execute a registered conveyance deed of the apartment, plot and building in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority which is further reiterated under Section 17 in the following: "17. Transfer of title.- (1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment or building, as the case may be, to the allottees and the common areas to the association of the allottees or the compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it can be safely inferred that in the event it is found that any Act, thing or deed done in contravention to the said Act, Rules or the Regulations made therein the authority has the power in this regard. The cumulative effect of Section 36, 37 and Section 34(f) and (g) of the said Act leads to an inescapable conclusion that not only power to pass such order is vested upon the authority but also a power to ensure the strict compliance thereof is also conferred upon it. At the first blush, it raises a doubt in our mind as to whether the authority has a power to pass an order or a direction of a specific performance of an agreement in juxtaposition with the provisions contained in Chapter VIII of the said Act in the event of non-compliance of the directions or the orders passed therein as it is only relatable to the penalties to be imposed and also the punishment to be inflicted. We do not find any provision concerning regulatory authority that any orders or directions are executable as a decree of a Civil Court but such provision is conspicuously present in relation to an order or a direction passed by the Real Estate Appellate Tribunal under Section 57 of the said Act which runs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct available to a party agreed but it does not contain any express provision that it can only be done by the Civil Court and not otherwise. The reference was made to a hypothetical situation where the parties under an agreement agreed to resolve the dispute through private fora i.e. arbitration and the arbitrator was empowered to pass an order for specific performance. In the aforesaid backdrop it is held: "7.3 True that this decision was related to arbitration but that would not preclude the Consumer Forum to be placed in the shoes of the arbitrator principally on the ratio decided in those decisions. The question is whether any Forum other than Civil Courts can exercise discretion with regard to specific performance of contract for sale of an immovable property in terms of the Specific Relief Act or whether the jurisdiction of the Consumer Forum is excluded by reason of any provisions contained in the Specific Relief Act. If it can be true in relation to arbitration then there cannot be any bar of its being equally true in relation to a proceeding before the Consumer Forum." The reliance appears to be placed upon the recent judgment of the Apex Court rendered in New Tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall, as far as may be, applicable. (2) Any such order shall be executed by the Principal Civil Court of the district having jurisdiction to execute the same." The aforesaid provision postulates that the every order made by the authority shall be enforced in the same manner as of a decree of the Civil Court and by virtue of the reference, the provision contained under Order XXI of the Code of Civil Procedure is imbibed within the said Act. Order XXI of the Code of Civil Procedure is a self-contained Code comprising of an exhaustive provision relating to the execution of a decree or the order including the specific performance of an agreement for sale. By virtue of Sub-Rule (2) of Rule 26 the order can also be executed by a principal Civil Court of a district having jurisdiction to execute the same. The conjoint reading of the various provision in the Act as well as the Rules as mentioned hereinabove leaves no ambiguity in our mind that the power of the regulatory authority is not restricted to a penalty or compensation but the orders or the direction can be execu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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