DATE OF FILING                    :     24.03.2014.

DATE OF S/R                            :      19.06.2014.

DATE OF FINAL ORDER      :     20.01.2016.  

1.         Shri Pankaj ‘M”  Gandhi,

son of Manubhai ‘M’  Gandhi,

residing at flat no. 901, Block ‘A’,

premises no. 138, G.T. Road ( S ), P.S. Shibpur,

District Howrah.

2.         Smt.  Banani Chatterjee,

wife of Dr. S. Chatterjee,

residing at flat no. 902, Block ‘A’,

premises no. 138, G.T. Road ( S ), P.S. Shibpur,

District Howrah.

3.         Sri Gopal Agarwal,

son of late  Chaturbhuj Agarwal,

residing at flat no. 903, Block ‘A’,

premises no. 138,  G.T. Road ( S ), P.S. Shibpur,

District Howrah. …………………………………………… COMPLAINANTS.

• Versus   -

Shree Apartment Flat Owners  Association,

represented by its President, Shri Shyam Sundar Modi,

having registration no. S/65906 of 1990 – 91,

having its registered office at 138, G.T. Road ( S ), P.S. Shibpur,

District  Howrah,

PIN  711102………. …………………………………………………OPPOSITE PARTY.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application U/S 12 of the C. P. Act, 1986 filed by the petitioner, Shri Pankaj ‘M’ Gandhi and two others against the o.p., Shree Apartment  Flat Owners’ Association represented by president, Shyam Sundar Modi, praying for direction on the o.p. to repair the roof of Block ‘A’ building at the cost of the respondent and Rs. 1 lakh as compensation and another  Rs. 1 lakh as cost of proceeding.  

2. The case of the petitioners is that they are the flat owners of 9^th floor of Block A of Shree Apartment under Howrah Municipal Corporation in holding no. 138, G.T. R oad ( S ), P.S.  Shibpur, Howrah, and they suffered damages as the common roof of the ‘A’ Block was severely damaged and immediate repairing of the roof is urgently required.  They further stated that the damage of the roof of the ‘A’ Block was mainly due to function organized by the respondent without the permission of flat owners and the Amusement Department of  Government of West Bengal whereby a huge gathering in disco dance organized on the roof of Block ‘A’ and several stalls opened on the roof. During rainy season, there was seepage of water in the flat of ‘A’ Block through roof and walls but no steps taken by the o.p.

3. The memorandum of association and in the  rules and regulations, it is clearly noticed in the object clause that the association shall establish safety and security of the members and also repair and replacement of the common areas and facilities of the properties but they  failed and neglected to repair the roof of the Block ‘A’ and absence of such amounted to deficiency in service on their part and compelling the petitioner to file this case praying for compensation of Rs. 1 lakh and Rs. 1 lakh as cost of proceeding. They further submitted that they have been paying maintenance charge to the respondent as per the rules of the association.    

4. The o.p. contested the case by filing a written version denying the allegations made against the o.p. and submitted that the case is not maintainable and also the petitioner has no cause of action to file the case and also the petitioner is not a  consumer under the o.p. and so the case be dismissed.  The o.p. further submitted that the petitioner filed one T.S. 117 of 2008 in the Court of  2^nd Civil Judge, Jr. Division, Howrah, with the self same subject matter wherein the petitioner prayed for permanent injunction and also a decree that the defendants are bound to repair the roof of the flats  ‘A’, ‘B’ & ‘C’ specially of Block ‘A’ which has been damaged due to periodical public gathering. The o.p. also submitted that this case be dismissed as the self same issues are pending before the civil court for decision in a previously filed suit of 2008 wherein the proceeding has been continued and  this particular present case was filed in 2014 on the self same matter.

5. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.P. ?
4. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

4. All the issues  are  taken up together for the sake of convenience and  brevity for discussion and to skip of reiteration. In support of their case the petitioners filed affidavit as well as documents showing payment of maintenance charges and also documents that they are owners of the flat nos. 1, 2 & 3 of Block ‘A’ and also filed one local inspection report which was ordered by the ld. Civil Judge in the T.S. 117 of 2008 wherein the Commissioner submitted that the condition of the building are O.K. and all the flat owners support the o.p./ respondent as the association has been maintaining the building and the building is in good condition.

5. On scrutiny of the record this  Forum finds that the petitioners prayed for repairing of their roof of Block ‘A’ and also keeping  in mind the submission of ld. counsels of both sides and the provision of law, this Forum finds that on the self same matter a civil case has been pending since 2008 before ld. Civil Judge, wherein the proceeding has been continued and on the self same issues the petitioner filed this case.  The  Consumer Protection  Act was enacted to protect the common man from the torture of strong and rich business houses  where the remedy under the common law has become illusory or vague but in the instant case the petitioner approached proper Forum i.e., court of a civil judge for prior directions upon the o.ps. to repair the roof and for other directions. Thus in both the case the reliefs being the same and the civil suit being 117 of 2008 being a previous and old suit wherein the same issues have been pending for decision after recording exhaustive  evidence on the issues, then it would not be just and wise for this Forum to decide this case in derogation. It is true that  in a civil complaint the petitioner is the dominus litis  and he cannot be compelled to go in a specific direction and he is to decide against whom he would file a case and what would be the points of decision in such case. Here the petitioner filed the civil suit in 2008 and now in 2014 when he filed this case with the self same issues then deciding such a case would be nothing but in derogation of the proceeding of the  civil court.    

6.  The Consumer Protection  Act, 1986 is not in derogation of any other law for the time being in force. This legislation is made for the purpose of giving quick and cheaper relief to the parties but never in derogation of any other legislation. Thus, in the instant case it would not be wise to come to a conclusion here as the matter has already been pending before the 2^nd  Civil Judge in  T.S. No. 117 of 2008 as the decisions of both the court of competent jurisdiction might be self destructive and so the Forum thought it wise not to go further in this case as the same would give rise so multiplicity of proceedings.

        In view of above discussion and findings this Forum finds that deciding the issues in this case will not be just and proper and thus    the case is untenable before this Forum.

In the result, the application fails.

Court fee paid is correct.

      Hence,                 

O     R     D      E      R      E        D

      That the C. C. Case No. 158  of 2014 ( HDF 158 of 2014 )  be and the same is dismissed on contest without  costs  against  the O.Ps.           

      Supply the copies of the order to the parties, free of costs.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.