MAINTAINABILITY OF CONSUMER COMPLAINT WHEN CASE ALREADY PENDING IN CIVIL COURT ON THE SAME ISSUE

“Consumer complaint filed by complainants before District Forum are not maintainable, when civil suit for same relief has already been filed before Civil Court prior to filing of consumer complaint ”

Said Hon’ble Mr. Justice V.B. Gupta, Presiding Member in the matter between Damayanti Kantilal Shah, Kantilal Ghelabhai Shah AND Rashmi Grihnirman Ltd. & Ors.

A  Revision Petition Nos. 696 And 697 of 2008 was filed before the National Consumer Disputes Redressal Commission, New Delhi against order dated 29.11.2007 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai.

In this matter Judgment was dictated by Hon’ble Mr. Justice K.S. Chaudhari, Presiding Member and sent for approval of Hon’ble Dr. B.C. Gupta, Member. Hon’ble Dr. B.C. Gupta, Member sent dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon’ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. The Hon’ble President referred the matter to Hon’ble Mr. Justice V.B. Gupta, Member. Hon’ble Mr. Justice V.B. Gupta, Member (3rd Bench) agreed with the view of Hon’ble Mr. Justice K.S. Chaudhari, Member and expressed his finding as above stated.

             Brief facts of the case are that complainants booked flat Nos. 219 and 224 measuring about 850 sq. ft. of built up area in District Thane with Rashmi Grihnirman Ltd. Builder executed Agreement of Sale on 24.4.1999. Possession of the flat was to be given on 11.8.2001. Builder failed to hand over possession and returned the amount. Alleging deficiency on the part of Builder, complainants filed complaint before District Forum with a prayer to direct opposite parties to hand over possession of flats and further pay interest and compensation. Builders resisted complaint and submitted that District Forum had no territorial jurisdiction  because complainants had already filed Civil Suit Nos. 368/2002 and 369/2002 on 24.5.2002 for possession. Learned District Forum after hearing both the parties allowed complaints and directed opposite parties to hand over possession of respective flats and further allowed interest, compensation and cost.

Builders filed appeals before the state commission of Maharashtra and State Commission set aside  the order of consumer forum.

Hence Revision before the National commission was heard by two Members bench

JUSTICE B. C. GUPTA –held that the State Commission set aside the order of the District Forum only on the ground that the complainants were not entitled to institute the consumer complaints in question, when the matter was already being heard by a Civil Court. In the process, the complainants have been left remediless by virtue of the impugned order and consequently, the alleged act of omission or commission on the part of builders  has been left without judicial scrutiny. Reference of section 3 of Consumer Protection Act was also made as follows-

‘Hon’ble Apex Court in a plethora of judgments that Section 3 of the Consumer Protection Act, 1986 provides an alternative remedy to the consumers to get their rights enforced through the mechanism of Consumer Fora .The Hon’ble Apex Court in their judgment in Secretary, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha, as reported in I (2004) CPJ 1 (SC)=I (2004) SLT 200=AIR 2004 SC 448, took the view that the better provisions are to be interpreted broadly, positively and purposefully to give a meaning to additional/extended jurisdiction, particularly, when Section 3 seeks to provide remedy under the Act, in addition to other remedies provided under other Acts.. TheHon’ble Apex Court held in State of Karnataka v. Vishwabharathi Housing Building Co-operative Society, as reported in 1(2003) CPJ 1 (SC)=I (2003) SLT 435 that the Consumer ProtectionAct, supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities. In their judgment in Nizam Institute of Medical Sciences v. Prasanth S. Dhananka, as reported in II (2009) CPJ 61 (SC)=III (2010) SLT 734, it was stated that the Act preserves the rights of the consumer to approach the Civil Court for necessary relief.

 

JUSTICE V B GUPTA AGREED TO JUSTICE K.C.CHOUDHURY

Justice V. B. Gupta agreed with the findings of State Commission by giving the following  reasonings for his opinion-

1.      “We reiterate that when two three authorities are available to any person to file judicial proceeding for the redressal of his grievance, propriety demands that he has to choose one and pursue the remedy to the hilt or to the logical end, but he cannot be permitted to file civil suit in the Civil Court and for the same relief file consumer complaint in the District Consumer Forum. This is nothing but a blatant misuse of provisions of Consumer Protection Act, 1986 and the Code of Civil Procedure’’

2.      ‘The Consumer Forum is in addition to the jurisdiction of other authorities particularly, Civil Court functioning in the State of Maharashtra or for that matter all over India. But once party chooses to approach Civil Court for the same relief, he cannot be permitted to file consumer complaint pending the civil suit; he has already filed for the same reliefs. Complainants Mr. Kantilal Shah and Mrs. Damyanti K. Shah having already approached Civil Court in the year 2002 were not permitted in law to file consumer complaints in the year 2003 for the same reliefs, which they had claimed by filing civil suits in the Court of Civil Judge, Senior Division, Thane.”

3.       Perusal of the complaints reveals that complainants have not disclosed in their complaint that civil suit for the same relief had already been filed before Civil Court. The prayer made by the complainant in the civil suit and before the Consumer Forum were identical. It is clearly borne out from record that the complainants/petitioners filed civil suits before a Civil Court on 24.5.2002 apprehending that the OPs were contemplating selling the flats in question to a third party. The Civil Court granted an ad interim injection in favour of the petitioners/complainants vide their order dated 24.5.2002 itself which made consumers not entitled to opt for any other remedy available in law. District Forum allowed complaints in September, 2003 and after institution of appeals by opposite party, complainant withdrew civil suits on 29.3.2004 which was filed before institution of complaint before District Forum.Complainants have not come with clean hands before District Forum.

4.      REFERENCE TO THE DECIDED CASES ON THE ISSUE-

!)The National Commission in M/s. Special Machines, Karnal v. Punjab National Bank & Ors., as reported in I (1991) CPJ 78, held that ‘when the subject matter of a complaint was sub-judice before a Civil Court, the Commission could not interfere.’

!!)A similar view has been taken in ‘Lilly Chaoyin v. CMD, Tamilnadu Industrial Investment Corporation & Ors. by the Tamilnadu State Commission, as reported in II (1995) CPJ 209.

In view of the above discussions ,it stands clear that no one can opt for two remedies for the same cause and cannot be benefitted twice for the same loss.

Dr Prem Lata

 

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