Calcutta High Court: In a case revolving around an application filed under Article 227 of the Constitution of India, challenging order passed by District Judge of 24 Parganas, Alipore, rejecting the appellants’ prayer for ad interim injunction to prevent the respondents from creating any third-party interests in the disputed property, a single-judge bench comprising of Siddhartha Roy Chowdhury,* J., held that the suit filed by the appellants is not maintainable in light of Section 79 of the Real Estate (Regulation and Development) Act, 2016 (RERA Act), which bars the jurisdiction of civil courts in matters within the purview of the RERA Act.
Factual Matrix
In the instant matter, the appellants (plaintiff 1, an Advocate and plaintiff 2, an Assistant Professor of a College) had decided to purchase a flat in a project constructed by the respondents/defendants.
The appellants and respondents agreed to the purchase of a residential unit on 14-02-2023, at a specified location and rate per square foot. The appellants signed a booking form and paid an initial amount, followed by a further payment via online transfer. A tripartite agreement was executed with a bank for housing loan purposes.
Stamp duty for registration was paid by the appellants, but upon reviewing the draft agreement for sale, the appellants objected to certain clauses, which the appellants considered unlawful and arbitrary. The appellants requested the removal of these clauses from the agreement.
Subsequently, the respondents cancelled the appellants’ booking in the project, leading to the dispute. The appellants argued that this decision was malafide and against the principles of natural justice.
The appellants approached the Civil Court seeking an ad interim injunction to prevent the respondents from creating any third-party interests in the property. However, this request was denied.
Aggrieved by the Civil Court’s decision, the appellants preferred an appeal before the District Judge, 24th Parganas (South), seeking an ad interim order of injunction which was also refused, leading to filing of the present application under Article 227 of the Constitution of India challenging the above-mentioned impugned orders.
Moot Point
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Whether the suit filed by the appellants is maintainable given the provisions of the RERA Act, specifically Section 79, which bars the jurisdiction of civil courts?
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Whether the appellants’ conduct, including their approach to the West Bengal Real Estate Regulatory Authority (RERA) and subsequent filing of a civil suit, constitutes an estoppel by the doctrine of election?
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Whether there was a valid agreement between the parties, considering the appellants’ objections to certain clauses in the draft agreement?
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Whether the appellants’ application under Article 227 of the Constitution of India should be allowed or dismissed?
Court’s Assessment
The Court examined the provisions of the RERA Act, specifically Section 79, which clearly bars the jurisdiction of civil courts in matters within the purview of the RERA Act. While citing Imperia Structures Ltd. v. Anil Patani, (2020) 10 SCC 783, the Court held that the appellants could not initiate proceedings before a civil court when there is a specific ouster of jurisdiction.
The Court also rejected the argument that the Specific Relief Act, 1963 could be invoked to enforce the agreement, because mere submission of a booking form and payment of the booking amount does not constitute an agreement. In the case in hand, there was no meeting of minds between the parties due to the appellants’ unwillingness to accept the offer without suggested modifications.
Furthermore, while addressing the issue of estoppel by the doctrine of election, the Court state that the doctrine of estoppel by election does not apply when there is a clear ouster of the civil court’s jurisdiction, therefore, the appellants’ approach to both the RERA Authority and the Civil Court is permissible. However, the Court noted that the appellants consciously approached the RERA Authority and then filed the civil suit without giving the authority time to act.
Court’s Decision
In light of these considerations, the Court dismissed the appellants’ application under Article 227 of the Constitution of India, stating that the civil suit and the appeal were both not maintainable due to the statutory mandate of Section 79 of the RERA Act.
The Court also emphasized that its decision did not touch upon the merits of the case and was intended to prevent an abuse of legal process. The Court dismissed the revisional application without any order as to the cost.
[Joydeep Roy v. Srijan Residency LLP, 2023 SCC OnLine Cal 3408, order dated 06-10-2023]
*Judgment by Justice Siddhartha Roy Chowdhury
Advocates who appeared in this case :
Mr. Pradip Kumar Roy, Mr. Tirthajit Roy Chowdhury, Mr. Nasiruddin Molla, Counsel for the Appellants
Mr. Siddhartha Banerjee, Mr. Rahul Karmakar, Mr. Abhisek Baran Das, Mr. Srijoni Chongdar, Counsel for the Respondent
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