State Consumer Disputes Redressal Commission
Smt.Jahana Antony vs Shantisadan Chs.Ltd.Through Its ... on 20 February, 2024
1 (A/21/70)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/21/70
(Arisen out of Order dated 03/02/2020 passed by the District
Commission, Raigad-Alibaug in CC/12/82)
Smt.Jahana Antony
R/o SNB 12,
Suraksha Nagar,
IPCL Township,
Nagothane,
Dist. Raigad 402 125.
Through POA Antony Cherian Appellant
Versus
1.Shantisadan C.H.S.Ltd.
Through its Secretary
At chikhale Village, Tq.Panvel,
Trupti Block No.3,
1st floor, Station Road,
Govandi,
Mumbai 400 088.
2. Mr.Krishnaray K. Kamath
R/o 11/12, Nilmantha Apartment
Amar Mahal Chembur,
Mumbai 400 089. Respondents
BEFORE :
Mr.A.Z.Khwaja, Presiding Judicial Member
Ms.Poonam V. Maharshi, Member
PRESENT:-
For the
Appellant: Advocate Praseema Elizabeth Joseph
For the
Respondent: Advocate Abhijit Vijay Mahadik
For respondent No.1.
2 (A/21/70)
ORDER
(Dated: 20th February, 2024)
Per : Hon'ble Mr.A.Z.Khwaja, Presiding Judicial Member
[1] Appellant- Jahana Antony has preferred the present appeal u/s 15 of the Consumer Protection Act, 1986 feeling dissatisfied by the Order dated 3rd February, 2020 passed by the learned District Consumer Commission, Raigadh at Alibaug in Consumer Complaint No. 82 of 2012, by which the complaint preferred by the present Appellant/ Complainant regarding deficiency in service and unfair trade practice came to be dismissed. (Appellant and Respondent shall be referred by their original nomenclature as given in the original complaint.) [2] Short facts leading to the filing of the appeal maybe narrated as under-
Complainant- Jahana Antony claims to be resident of Nagothane Township, District Raigad. Opponent No.1 is a Co- Operative Housing Society. Complainant- Jahana Antony claims to be a Member of the Opponent Co-operative Housing Society which was duly registered under the Maharashtra Co-operative Societies Act, 1960 and is situated in survey No. 83/1, 2 and 4 and survey No.146/4 and 6 of Chikhale village. Complainant- Jahana Antony has contended that she was a Member and she claims to be an allottee of flat bearing Flat No.3 in building No. 9 admeasuring about 750 sq.ft. and total cost of construction of the flat was fixed at Rs.2,62,500/-. The Complainant has 3 (A/21/70) contended that out of the entire consideration amount she has already paid sum of Rs.2,17,500/- to the opponent society. It was also agreed that the remaining amount was to be paid after completion of 75% of the work. Complainant- Jahana Antony has contended that on 13th January, 2002, 75% of construction in all 17 buildings was completed and thereafter new office bearer took over the remaining work. Complainant has contended that the Opponent namely Shantisadan Co-operative Housing Society was expected to complete the entire work and also hand over possession. But the Complainant- Jahana Antony was not given any information for long period of time. Complainant- Jahana Antony has contended that suddenly on 14th August, 2006 one Circular came to be issued by the society and thereby the Members were informed that 16 flats i.e. 6 flats each in building No. 8 and 11 and 4 flats in building No. 9 were handed over to one K.K. Kamath (Respondent No. 2) as absolute owner in lieu of payment of Rs.61,95,000/-. Complainant- Jahana Antony also came to know that the Opponents entered into Tripartite Agreement with the said K.K. Kamath and accordingly 17 buildings were taken over by the Respondent No. 1- Society from the Contractor except 16 flats which were given to the Respondent No. 2- K.K. Kamath. Complainant- Jahana Antony has further contended that thereafter on 27th September, 2005 Opponent No.1 -Society issued notice to the Complainant asking her to deposit additional sum of Rs.1,60,218/- being the balance cost of flat No. 3 in building No. 9. Complainant- Jahana Antony has contended that this demand was not only arbitrary and excessive but also it was over the original consideration of 4 (A/21/70) Rs.2,62,500/- Complainant- Jahana Antony was unable to deposit the same. Complainant has alleged that the Opponent No.1 -Society in high handed manner not only cancelled the allotment of flat of the Complainant without giving proper information to her but also removed the name of the Complainant from the Membership Register. Complainant- Jahana Antony thus realised that she was not likely to get the flat booked by her for which major amount of consideration was already paid and so came to the conclusion that there was not only deficiency in service but also unfair trade practice on the part of Shanti Sadan Co-operative Housing Society (Opponent No.1). Complainant- Jahana Antony was thus left with no other option but to file the present complaint for deficiency service as well as unfair trade practice with a prayer to the Opponent Society to complete the construction of flat No. 3 in building No. 9 at Chikhale, Taluka Panvel and to deliver possession as well as to pay compensation of Rs.5,00,000/-. Due notice was issued to the Opponents.
[3] Opponent No.1 appeared and resisted the complaint. Opponent No.1 has taken a specific plea that the present complaint is not tenable in law as it lacks cause of action. Opponent No.1 has also contended that the complaint is also barred by limitation. Opponent No.1 has taken a specific plea that the Complainant- Jahana Antony has suppressed material fact that the present Complainant alongwith other Members had also filed one Dispute in the Co-operative Court at Alibaug on 3 rd January, 2007 and therefore the present subsequent complaint 5 (A/21/70) is not at all maintainable. Opponent No.1 has contended that the Complainant- Jahana Antony had not paid the entire amount and on the contrary has committed default. Opponent No.1 has contended that as there were defaults committed by the members including the present Complainant, the Society was short of amount of Rs.43.55 lakhs. Opponent No.1 has contended that the present Complainant- Jahana Antony alongwith 15 others, were co-defaulters and therefore General Body Meeting of the Society was called on 28th August, 2005 and the Society was compelled to cancel the Membership of the Complainant- Jahana Antony and 16 flats came to be sold to K.K. Kamath. Opponent No.1 has not committed any deficiency in service. Opponent No.1 has contended that as the Complainant was failed to attend the General Body Meeting of the Society, as the Complainant was defaulter, his membership came to be cancelled and consequently his allotment was also cancelled. For the foregoing reasons, the complaint filed by the Complainant was devoid of substance and deserves to be dismissed with cost.
[4] The learned District Consumer Commission, Raigad at Alibaug recorded the evidence led by the Complainant-Jahana Antony as well as by the Opponent Society. Learned District Consumer Commission, Raigad also went through the documents filed on record by both the parties as well as notes of argument. Learned District Consumer Commission took up the issue of maintainability of the complaint on the ground of pendency of earlier dispute before the learned Co-operative Court. Learned District Consumer Commission came to the conclusion that since 6 (A/21/70) the Complainant had earlier filed the dispute before the Co- operative Court, the learned District Consumer Commission had no jurisdiction to try the complaint and complaint was not maintainable. Admittedly, the learned District Consumer Commission, Raigad dismissed the complaint by Judgement and Order dated 3rd February, 2020, which is challenged in the present appeal.
[5] We have heard the learned Advocate for the Appellant/Complainant as well as Advocate for the Respondent. We have also gone through the record, copies of which are placed on record as well as notes of argument filed by both the parties. On the basis of the facts stated above, the only point which arises for our determination is as under, with our findings recorded against the same and reasons thereafter-
Sr.No. POINTS FINDINGS
1 Whether the Judgement and Order In the affirmative
dated 3rd February, 2020 passed
by the learned District Consumer
Commission, Raigadh at Alibaug
suffer from any illegality aur
infirmity and whether the same
needs any interference ?
2 What order ? As per final order
7 (A/21/70)
:- R E A S O N S -:
[6] Before adverting to the issues involved in the complaint it would be pertinent to mention that, this is the second round of litigation between the parties. It is not in dispute that the present Appellant/Complainant had filed the complaint alleging deficiency service bearing complaint No. 82 of 2012 before the learned District Consumer Commission, Raigadh at Alibaug. It is not in dispute that the learned District Consumer Commission, Raigadh allowed the complaint on 31 st March, 2015 directing the opponent to hand over the flat No. 3 in building No. 9 admeasuring 750 sq.ft. and also to pay Rs.3,00,000/- by way of compensation after payment of Rs.2,17,500/- by the complainant. Aggrieved by the said Order dated 31st March, 2015 the Respondent herein filed Appeal bearing No. 889 of 2015 before the State Consumer Commission and State Consumer Commission partly allowed the appeal and reduced the compensation from Rs.3,00,000/- to Rs.1,00,000/-. It appears that the Respondent No.1 - Society preferred Revision Petition bearing No.81 of 2018 before The Hon'ble National Commission. It is not in dispute that the Hon'ble National Commission after hearing the parties remanded the complaint back for trial afresh with a specific direction to implead K.K. Kamath as Respondent No.2 in the complaint and thereafter to dispose of the complaint. In this backdrop, the complaint came to be remanded back for afresh trial with a direction to implead K.K. Kamath (Respondent No. 2.) 8 (A/21/70) [7] Coming now to the submissions made by the learned Advocate for the Appellant, we find that the learned Advocate for the Appellant has made several submissions. At the outset, the learned Advocate for the Appellant has submitted before us that the learned District Consumer Commission has not at all appreciated the fact that the present complaint regarding deficiency in service had come to be remanded for trial afresh on merits after giving due opportunity to the Respondent No. 2 K.K.Kamath by adding him as a party Respondent. Secondly, it is submitted by the learned Advocate for the Appellant that the learned District Consumer Commission has misdirected itself by holding that the present complaint regarding deficiency in service was not maintainable, on the sole ground that, earlier the present Complainant- Jahana Antony had also preferred one Dispute before the learned Co-operative Court on 3 rd January, 2007. It is submitted by the learned Advocate for the Appellant that by preferring the dispute before the learned Co-operative Court, the right of the Complainant- Jahana Antony to file the complaint was not at all extinguished, as there was no bar to file the complaint regarding deficiency in service under the provisions of the Consumer Protection Act, 1986. We have also heard the learned Advocate appearing for the Respondent- ShantiSadan Co- operative Housing Society and he has strongly rebutted the contentions advanced by the learned Advocate for the Appellant. The learned Advocate for the Respondent has submitted that the present complaint itself was not maintainable as the Complainant had earlier already filed the Dispute before the Co- operative Court and the same not only bars the Consumer 9 (A/21/70) Commission but also leads to multiplicity of litigation. On this aspect, the learned Advocate for the Respondent has drawn our attention not only to Section 91 of the Maharashtra Co-operative Societies Act but also series of Authorities and we shall deal with them. Admittedly, in the present case, during the second round of litigation the present complaint regarding deficiency in service has been remanded by the Hon'ble National Commission with the direction to try afresh after impleading K K Kamath. We have gone through the impugned Order dated 3rd February, 2020 passed by the learned District Consumer Commission, Raigadh- Alibaug and we do find that after remand due notice was issued to the Respondent No.2-K K Kamath who was impleaded as a party. Record itself shows that subsequently K K Kamath also appeared and also tendered evidence on record. Record further reveals that thereafter the present Respondent No.1 filed written version taking a stand again that the consumer complaint itself was not maintainable in law merely due to pendency of one earlier Dispute before the learned Co-operative Court in the year 2007. Learned Advocate for the Respondent No.1- ShantiSadan Co-operative Housing Society has laid much stress on this aspect and has also defended impugned Order passed by the learned District Consumer Commission Raigadh-Alibaug solely on the ground that the present complaint regarding deficiency in service was not maintainable. We find that the same ground is also been agitated before us on the basis of various authorities of the Hon'ble Supreme Court of India as well as Hon'ble National Consumer Disputes Redressal Commission. It would be therefore relevant to deal with this aspect first.
10 (A/21/70) It is submitted by the learned Advocate for the Respondent No.1 that the present Complainant had already filed the Dispute in the Co-operative Court on 3rd January, 2007. It is also on record that subsequently said Dispute came to be withdrawn on 13th December 2017. This aspect is not very much relevant. It is contended that due to the fact the Complainant has already challenged the resolution passed by the General Body Meeting before the learned Co-operative Court the Complainant had no right or interest to agitate the same question before the learned District Consumer Commission by terming it as deficiency in service. But first, we would like to deal with the Authorities on which reliance is placed by the learned Advocate for the Respondent No.1. At the outset the learned Advocate for the Respondent No.1 has relied upon one Judgement of the Hon'ble National Commission in the case of Lalit Chaoyin versus Chairman and Managing Director Tamil Nadu Industrial Investment versus Chairman Tamilnadu (reported in LAWS(NCD) 1994-9-83). We have carefully gone through the Judgement. It was also pertaining to the Consumer Protection Act. The facts were that, the Complainant therein had received foreclosure notice and so he had filed civil dispute in the City Civil Court, Madras seeking injunction restraining the Opponent. On going through the Judgement, we find that the Hon'ble National Consumer Commission was dealing with the civil rights of the Complainant therein and in that context had observed that since the matter was sub-judice before the Civil Court, a concurrent adjudication in respect of the same cannot take place before The Hon'ble National Commission. The learned Advocate 11 (A/21/70) for the Respondent No.1 has relied upon another Judgement of the Hon'ble National Commission in the case of the Dayamanti Kantilal Shah versus Rashmi Gruha Nirman Ltd. and ors., LAWS (NCD)-2015-5-196. In that case also the facts were quite similar and the Complainant therein had filed Civil Suit for decree of possession and injunction. In that case, it was observed by the Hon'ble National Commission in para 10 that " A party cannot be allowed to pursue two remedies simultaneously and withdraw one remedy after grant of another remedy." It is contended by the learned Advocate for the Respondent No.1 that, herein also the Complainant had withdrawn the dispute and so the facts were quite similar. The learned Advocate for the Appellant has rebutted this contention and has made two fold submissions. Firstly, it is submitted by the learned Advocate for the Appellant that there is no statutory bar provided under the Consumer Protection Act, 1986 so as to bar the Complainant from agitating his rights in other competent Civil Court or the Forum. On the contrary, it is argued by the learned Advocate for the Appellant that, specific provision has been carved out to help the complainant, who was essentially a Consumer, by enacting Section 3 under the old Consumer Protection Act, 1986 and subsequently section 100 under the newly enacted Consumer Protection Act, 2019. The learned Advocate for the Appellant has drawn our attention to Section 3 of the Consumer Protection Act, 1986. It cannot be forgotten that, section 3 of the Consumer Protection Act, 1986 clearly provide that, "the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law 12 (A/21/70) for the time being in force." It would be relevant to mention that section 100 of the Consumer Protection Act, 2019 is in pari materia with the earlier Section 3 and clearly provide additional remedy to the Complainant, who is essentially a Consumer. It is necessary to mention that, section 3 and section 100 have been enacted particularly with object to help the Consumer and further to give him additional remedies by way of Consumer Protection Act, which was a Welfare legislation. Be that as it may, the learned Advocate for the Appellant has also relied upon another Judgement of the Hon'ble Supreme Court of India in the case of Imperia Structures Limited versus Anil Patni and anr., (reported in (2020) 10 Supreme Court Cases 783), Hon'ble Supreme Court had occasion to deal with section 3 of the Consumer Protection Act, 1986 vis-a-vis provision of the RERA Act. In that case, submission was made that, the provision of RERA Act does not in any way bar the purchaser from starting proceeding under the Consumer Protection Act. In view of the provisions of the RERA Act, in the case of the Imperia Structures Limited versus Anil Patni and anr., cited supra, Hon'ble Supreme Court has dealt with this aspect in an elaborate manner and thereafter clearly observed that the remedies available under the provisions of the Consumer Protection Act are additional remedies, over and above other remedies, including those available under the Special statutes. It was also observed that, the availability of alternate remedy is no bar to entertain the complaint under the Consumer Protection Act. Here, in the present case, the only contention raised on behalf of the Appellant is that, the present Complainant had challenged the 13 (A/21/70) action taken in the General Body Meeting of cancellation of flat before the learned Co-operative Court, as the Complainant was Member of the Respondent No.2- Society. Appellant has taken a plea that, the Dispute before the Co-operative Court was pending when the present complainant filed the present complaint. The learned Advocate for the Respondent has categorically denied this contention also and has submitted that the said dispute before the learned Co-operative Court was not pending. In any case, as discussed earlier, the pendency of dispute before the learned Co- operative Court, in our opinion, will not extinguish the rights or remedies of the Complainant before the District Consumer Commission, in view of Section 3 of the Consumer Protection Act, 1986 and section 100 of the Consumer Protection Act, 2019. If we go through the impugned Order passed by the learned District Consumer Commission, Raigad-Alibaug, the learned District Commission has instead of deciding the Consumer complaint on merits, as directed specifically by the Hon'ble National Consumer Commission, dealt with only this issue, taking it as preliminary issue and thereafter has observed that since the Complainant has filed dispute before the learned Co-operative Court, in the year 2007, the present complaint was not maintainable, as the matter was before the learned Co-operative Court. But we find that, the learned District Consumer Commission has not taken into consideration the fact that the Complainant was a member of the Respondent Co-operative Housing Society and therefore had raised dispute under the Maharashtra Co-operative Societies Act by challenging Resolution of the General Body Meeting. But here in the present case Complainant has made allegation 14 (A/21/70) relating to the deficiency in service which can be only tried before the District Consumer Commission. Secondly, we also find that, the District Consumer Commission has not taken into consideration the provisions of section 3 of the Consumer Protection Act, 1986 and therefore has come to the erroneous conclusion. Further, we also find that though the learned District Consumer Commission was specifically directed to decide the complaint afresh after adding KK Kamath (Respondent No.2), the present complaint has also not been decided on merit in accordance with the direction given by the Hon'ble National Consumer Commission. Coming now to the other contentions raised by the learned Advocate for the Appellant and the learned advocate for the respondent, we feel that, it is neither necessary nor proper to deal with the other contentions, which were on the merits of the Complaint. On the other hand, we find that, in the light of the Order dated 6th March, 2019 passed by the Hon'ble National Consumer Commission, it would be proper to remand the matter back to the learned District Consumer Commission with specific direction to decide the complaint on merits afresh after hearing both the parties. We are also aware that the complaint was filed way back in the year 2012. In such situation we feel that suitable direction can be given to decide the complaint as expeditiously as possible.
[8] In the light of the aforesaid discussion, we are unable to accept the submission advanced by the learned Advocate for the Respondent No.1 and so we proceed to pass the following order-
15 (A/21/70) :- ORDER :-
1] Appeal is hereby partly allowed.
2] Impugned Order dated 03/02/2020 passed by the learned District Consumer Disputes Redressal Commission, Raigad-Alibaug in CC/12/82 is hereby set aside and the matter is remanded back to the learned District Consumer Disputes Redressal Commission, Raigad-Alibaug for disposal afresh after giving opportunity to all the parties.
3] Learned District Consumer Disputes Redressal Commission, Raigad-Alibaug is hereby directed to decide the complaint as expeditiously as possible.
4] No order as to costs.
5] Parties to appear before the learned District Consumer Disputes Redressal Commission, Raigad- Alibaug on 25th April, 2024.
6] Copy of this order be supplied to both the parties free of cost.
[A.Z.Khwaja] Presiding Judicial Member [Poonam V. Maharshi] Member rsc