State Consumer Disputes Redressal Commission
Ketan Baldevdas Mistry vs Nitin D Patel H.U.F. on 18 October, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/12/259
KETAN BALDEVDAS MISTRY
201 MUKUND COMPLEX, NEW GOLDEN NEST ROAD
OPP APPLE HOSPITAL BHYANDER EAST - 401105
DISTRICT THANE
...........Complainant(s)
Versus
NITIN D PATEL H.U.F.
103 MOHAN
PALACE 57 TH TPS
III BORIVALI (WEST)
MUMBAI - 400092
............Opp.Party(s)
BEFORE:
HON'BLE Mr.Justice S.B.Mhase PRESIDENT
HON'BLE Mr. S.R. Khanzode Judicial Member
HON'BLE MR. Narendra Kawde MEMBER PRESENT:
Ms.Priyamvada Gokhale-proxy advocate i/b.Mansukhlal Hiralal & Co. for the complainant ORAL ORDER Per Honble Mr.Justice S.B.Mhase, President Heard Ms.Priyamvada Gokhale-proxy advocate i/b.Mansukhlal Hiralal & Co.
for the complainant This complaint has been filed by the complainant seeking relief that the opponent be ordered to execute formal agreement of sale (MOFA Agreement) in respect of flat no.204 on 2nd floor of B wing of proposed building La-Bellezza in favour of the complainant and further the opponent be directed to hand over the complainant quiet, vacant and peaceful possession of the flat within 15 days from the date of order. Alternatively, it is prayed that the complainant be paid compensation of `50 lakhs being the present market value of the said suit flat as damages with further interest @ 18% p.a. from the date of the complaint till payment and/or realization. Amount of `1 lakh has been claimed for the mental agony and inconvenience caused and `30,000/- are claimed by way of costs.
2. Case of the complainant is that complainant has booked the flat with opponent on 07/07/2009 and has paid an amount of `2,50,000/- as an initial payment. Thereafter from time to time the amounts have been paid on 13/07/2010, 21/07/2010, 10/08/2010 and 13/08/2010. From the schedule it appears that the amount including VAT has been paid. What is important to be noted is that the flat in question has been already disposed of by the opponent in favour of Mrs.Bharti Makani.
Under these circumstances, present complainant has filed suit no.1504/2011 before the Original Side of High Court of Bombay.
Said suit has been filed for specific performance of the agreement, which is subject matter of the present consumer complaint also. Whenever there is an agreement either oral or written in respect of the property, the person desirous of purchasing the property has regular remedy of specific performance under Civil Law. In the said suit Civil Court or in the present matter High Court can direct the defendant in the said suit to execute appropriate conveyance and deliver possession of the property.
In the said suit since the relief of specific performance is discretionary relief, court may instead of granting specific performance may grant refund of consideration and compensation.
What is important that equities to be considered inter se between the third party purchaser and the plaintiff also can be considered by the Civil Court and not by the Consumer Fora. Thus, regular existing remedy available to the party and which could given proper reliefs touching all issues has been availed by the present complainant.
3. One more aspect needs to be placed on record is that in Consumer fora we entertain the complaints only when we find that there is deficiency in service and non delivery of possession has been considered as a service in respect of builders and developers and, therefore, even the definition of service includes Housing Construction and, therefore, whenever there is deficiency in respect of services to be rendered, the consumer complaint is tenable. This complaint could have been entertained by us though we would not have granted any relief as against the third purchaser. But the difficulty in the present matter is that when the party has availed the existing remedy under Civil Law, then in the background of this case, simultaneously, the consumer forums jurisdiction cannot be invoked. Section 3 of the Consumer Protection Act, 1986 specifically states that the provisions of the Consumer Protection Act, 1986 are not in derogation of the existing law but they are additional remedy provided to the parties.
However, whenever there are multiple remedies available to the party under existing law and also under Consumer Protection Act, 1986, party is expected to select or elect one of the remedies. Party cannot simultaneously invoke the jurisdiction of the multiple courts and/or fora to get the adjudication of their dispute.
This is necessary to avoid harassment of the defendant or opponent. It is equally necessary to avoid multiple and probably conflicting decision in respect of same subject matter. Judicial propriety and discipline requires that the party should avail only one remedy and should not create a situation which will render justice delivery system as a result of conflicting decision a subject matter of mockery before the public. Under these circumstances, what we find that since the present complainant has availed remedy by filing suit referred to above, not only that, in the said suit interim injunction application by filing notice of motion bearing no.1990/2011 wherein single judge sitting on Original Side of the High Court has passed an order restraining defendant in their suit who is opponent in the present complaint, from transferring or creating third party further interest. In the said suit subsequent purchaser is also a party.
Therefore, we refrain ourselves from entertaining the present complaint. All these facts are eloquently known to the complainant and, therefore, complainant should not have filed the present complaint.
4. All the reliefs which are claimed in the present complaint can be claimed in the Civil suit and there is no bar for such claiming the relief. Not only that but exhaustive regular remedy is the civil suit. The remedy of Consumer Fora is a summary remedy where limited question of service and deficiency can be considered.
5. Under these circumstances, what we find that by filing such complaint, there is an attempt to misuse the jurisdiction of Consumer Fora and, therefore, we impose costs of `5000/- to be deposited in Legal Aid Fund of this Commission within a period of 15 days from today. If the said amount is not deposited within 15 days from today, Registrar (Legal) of this Commission shall issue recovery certificate under section 25(3) of Consumer Protection Act, 1986 to the Collector for recovery of the said amount.
ORDER Complaint is rejected.
Complainant shall pay costs of `5000/- to be deposited in Legal Aid Fund of this Commission within a period of 15 days from today. If the said amount is not deposited within 15 days from today, Registrar (Legal) of this Commission shall issue recovery certificate under section 25(3) of Consumer Protection Act, 1986 to the Collector for recovery of the said amount.
Pronounced on 18th October, 2012.
[HON'BLE Mr.Justice S.B.Mhase] PRESIDENT [HON'BLE Mr. S.R. Khanzode] Judicial Member [HON'BLE MR.
Narendra Kawde] MEMBER Ms.