National Consumer Disputes Redressal
Beverly Park Maintenance Services Ltd. vs Kashmir Fab Styles Pvt. Ltd. on 13 March, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2064 OF 2012 (From the order dated 17.04.2012 in Appeal No. C-271/10 of the State Consumer Disputes Redressal Commission, Delhi) Beverly Park Maintenance Services Ltd. (Through Its Authorized Signatory) Shopping Mall, Phase-I, DLF City, Gurgaon-122002 Haryana Petitioner-Opposite Party Versus Kashmir Fab Styles Pvt. Ltd. Having its Corporate Office at C-67, Hoisery Complex, Industrial Area Phase-II, Noida Respondent-Complainant BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBER For the Petitioner : Ms. Priya Deep, Advocate For the Respondent : Mr. R. K. Dhawan, Advocate PRONOUNCED ON : 13th MARCH 2014 O R D E R PER JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 17.04.2012, passed by the State Commission in Complaint No. 271/2010, Kashmir Fab Styles Pvt. Ltd. vs. Beverly Park Maintenance Services Ltd., by which, application of opposite party for dismissing complaint was dismissed. 2. The brief facts of the case are that complainant-respondent booked space in order to earn its livelihood with opposite party-petitioner and complainant was allotted shop no. 322, DLF Place, Promenade, Vasant Kunj, New Delhi. Complainant paid Rs. 11,20,847/-, but opposite party did not open Mall. Alleging malpractice and deficiency on the party of the opposite party, complainant filed complaint for refund of deposited amount and expenses incurred on interiors and compensation etc. Opposite party filed application under Section 26 of Consumer Protection Act and submitted that complaint was not maintainable as parallel arbitration proceedings have already commenced between the parties and complaint pertains to commercial space, which does not fall within the purview of Consumer Protection Act and prayed for dismissal of complaint. Complainant submitted reply and further submitted that opposite party took many adjournments for filing written statements and later on, filed this application, which may be dismissed. The State Commission vide impugned order dismissed application against which this revision petition has been filed. 3. Heard learned counsel for the parties finally at admission stage and perused record. 4. Learned counsel for the petitioner submitted that as arbitration proceedings had already commenced before the arbitrator for the same relief and complainant participated in the proceedings, complaint filed after participation in the proceedings was not maintainable. It was, further, submitted that complaint pertains to commercial space in the Mall and in such circumstances, complainant does not fall within the purview of consumer, even then, the State Commission committed error in dismissing the application, hence revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned counsel for the respondent submitted that proceedings under Consumer Protection Act are in addition to proceedings before any other forum and premises were taken for earning livelihood, hence order passed by the State Commission is in accordance with law and revision petition be dismissed. 5. Perusal of record reveals that arbitrator initiated arbitration proceedings and issued letter on 03.08.2010 and in compliance to that letter, complainant appeared before the arbitrator on 28.08.2010, whereas complaint before the State Commission was filed on 31.08.2010. Reliefs claimed in the complaint are as under:- a. to direct the respondents to make payment to the complainant of admitted amount of security i.e. Rs. 11,20,847/- lying with them along with interest @24% p.a. upto the date of payment; b. to direct the respondents to make payment of Rs. 16 lacs incurred on interiors, fitouts at shop no. 322. c. this Honble Commission may be further pleased to direct the respondents to pay a sum of Rs. 20 lacs as cumulative damages/compensation for the loss or injury suffered by complainant and for the business losses due to the non-opening of the Mall; d. this Honble Commission may be further pleased to award compensation on account of mental agony, torture, harassment suffered by the complainant amounting to Rs. 10 lacs. e. entire cost of the present complaint/litigation be also paid to the complainant in the interest of justice; f. pass such other further order/orders as this Honble Commission may deem fit and proper in the facts and circumstances of the present case in the interest of justice. 6. Complainant submitted reply to the claim before the arbitrator with almost similar prayers. Thus, it becomes clear that same reliefs were claimed in the complaint, which were claimed before the arbitrator. 7. Now the core question is, whether two parallel proceedings for similar relief can be persuaded before two different forums. Learned counsel for the respondent submitted that section 3, Consumer Protection Act enables complaint to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned counsel for the respondent because two proceedings for similar relief can not run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad vs. The New India Assurance Co. Ltd. held that when a case is pending in a court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action. 8. Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both proceedings may go simultaneously. The words in addition appearing in S.3 C.P. Act enables complainant to file complaint before Consumer Fora also if not filed before other forum. 9. The State Commission observed in its order that in para 5 of the complaint, the complainant categorically pleaded that complainant had obtained shop on lease basis for earning his own livelihood. Admittedly complainant is a private limited company, which booked space and was allotted shop in the Mall of opposite party. By no stretch of imagination, it can be said that complaint booked this space for earning its livelihood. Only a living person can plead that he booked premises for earning his livelihood. Complainant being private limited company is distinct from its members as held by privy council in Soloman vs. Soloman & Co. The State Commission committed error in holding that complaint was maintainable as shop was taken on lease for earning his own livelihood and not for commercial purpose. 10. In the light of above discussion, revision petition is to be allowed and impugned order is liable to set aside. 11. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 17.04.2012 in Complaint No. 271/2010, Kashmir Fab Styles Pvt. Ltd. vs. Beverly Park Maintenance Services Ltd., passed by the State Commission is set aside and complaint stands dismissed, with no order as to costs. ..
(K. S. CHAUDHARI) PRESIDING MEMBER PSM