State Consumer Disputes Redressal Commission
Joaquim Francis Fernandes vs Sidhant Dayanand Naik & Another on 5 February, 2024
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 29 of 2020 in Consumer
Complaint 26 of 2020.
Before: Adv. Mrs. Varsha R. Bale, Officiating President
Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna A. M. Gonsalves, Member
Mr. Joaquim Francis Fernandes
Son of Mr. Andre Fernandes,
Aged 46 years, married, businessman,
Resident at Bondir, H.No. 1268/B Santa Cruz,
Proprietor of M/s Space Asthetics with
Office at F-4, 1st floor, Building A-1,
Jairam Complex, Neogi Nagar,
Panjim Goa. .....Appellant
V/s
Sidhant Dayanand Naik,
Son of Dayanand Keshav Naik,
Aged 28 years, married, service,
Residing at Flat S-2, Second floor,
Building B Ashirwad Green,
Ponguirvol, Pontemol,
Curchorem, Goa. .....Respondent-1
Mrs. Bharati Naraba Raikar alias
Diksha Dayanand Naik, wife of
Dayanand Kesar Naik, aged 60 years,
Married, residing at H.No. 22,
Kasabwada, Netorlim,
Sanguem, South Goa. .....Respondent-2
Adv. Shri A. Furtado present for Appellant.
Adv. Shri A. Kunkolekar present for Respondents.
DATE: 05 /02/2024
1
JUDGMENT
[per Dr. Nagesh S. Colvalkar, Member] By this Judgment and Order, we dispose off the Appeal filed by the Appellant against the Order dated 26/10/2020 passed by the District Commission, South Goa, Margao.
Appellant were the Opposite Parties at the District Commission and the Respondents were the Complainants at the District Commission, South Goa, Margao.
The case of the Appellant in short is as under:
1. The Respondent filed a complaint under section 2(d) of the Consumer Protection Act, 1986 before the South Goa Consumer Dispute Redressal Commission seeking a direction to the Appellant herein to execute the Deed of Sale and to accept the balance payment from the Complainant and further to pay a compensation of Rs. 3,00,000/- to the Respondents towards mental harassment, torture and agony, hardship, allegedly suffered by lack of service and it was their case that there was an Agreement for Sale dated 17.05.2016 between the Appellant and the Respondents. Further there was correspondence between the parties coupled with some payments by the Respondent to the Appellants herein and that ultimately by notice dated 06.04.2019, the agreement dated 17.05.2016 had been terminated by the Appellant and that the Respondents filed their reply to the said termination on 12.04.2019.2
2. The said complaint was filed by the Respondents/Complainants on 15.05.2020, but earlier to May 2020, the Appellants herein upon the termination of the agreement by the said notice dated 06.04.2019, had already filed a Civil suit bearing SCS no. 05/2020 before the Court of Civil Judge, Senior Division at Quepem, which on 21.03.2020 the Ld. Judge passed orders to register the case, for a declaration that the said agreement dated 17.05.2016 stood terminated and for an order and decree or direction directing the defendants who are the Respondents herein to hand over or deliver the vacant possession of the said flat to the plaintiff therein who are the Appellants herein. That is why on 17.08.2020 the Appellant moved an Application before the Consumer Dispute Redressal Commission, South Goa praying that the complaint no. 26/2020 be closed or stayed till the disposed of the suit bearing no. 5/2020 as in both the proceedings the question of a termination of the agreement dated 17.05.2016 was involved.
3. The said Application was dismissed by the South Goa District Consumer Dispute Redressal Commission by the Impugned Order dated on the following grounds.
i. The District Consumer Disputes Redressal Commission, South Goa erred in holding that the proceedings before it need not be stayed or closed due o the fact that there was already a suit no. SCS 05/2020 pending before the Civil Court, Quepem and that the facts given in the said order are sufficient to realize that the law laid down therein is that, when a matter is already pending before a Civil 3 Court, the same should not be decided by the Consumer Commission.
ii. Also, the South Goa District Commission ought to have seen in the case of Topline shoes Ltd. & Anr. V. Corporation Bank & Anr. reported in (2002) 10 SCC 358 at paragraph 2 held that when a proceeding was pending before a Debt recovery tribunal at Ahmedabad where he had also filed a counter claim, that the appropriate course for the Appellant would be to pursue the remedy before the Tribunal rather than the remedy before the commission. Also that this citation of the Hon'ble Supreme Court is aimed at avoiding contrary decisions by two different courts on the same matter or on similar issues, i.e. to avoid the possibility of conflict of the decisions. iii. That, the South Goa District Commission ought to have followed the decision of the Hon'ble Supreme Court in Topline Shoes Ltd and Anr reported (2002) 10 SCC 358 mentioned above as the Respondent can actually file a counterclaim in the said suit and get his grievances decided as that would be an appropriate course for the Appellant to pursue before the court rather than before the Commission and in that way both the rights of each of the parties to the dispute would be safeguarded by a decision in the same suit and would also reduce the financial costs as there would be a single suit or at least, the Ld. South Goa District Commission would have stayed the proceedings before it during the pendency of the suit bearing no. SCS/5/2020 to be taken up again subject to the outcome of the said suit which would decide the grievances of both the parties.
iv. Hence the present appeal ought to be allowed and the impugned order to be quashed.
4And prayed as under:
A. That this appeal be allowed.
B. That the impugned order dated 26.10.2020 passed in Complaint No. 26/2020 be quashed and set aside.
The Respondent states in short is as under:
1. The entire thrust of the Argument of the Appellant has been to conveniently import jurisprudence from other specialized statutes and to apply them to a question of law that has been settled by the Hon'ble National Commission which is the final authority within the framework of the Consumer Protection Act, 2019 in force which is a specialized beneficial statute in itself.
2. Respondent herein submit without prejudice to any arguments urged herein that the reliefs prayed in the suit and in the Complaint, if granted, would not be conflicting with each other in any manner and therefore the question of "propriety" as urged would not at all arrive.
3. Respondents further submits that the very fact that in view of the decision in Yeshwant Rama Jadhav where the Hon'ble National Commission has ruled that the status of a Purchaser as a Consumer would not come to an end by merely the developer cancelling the Argument would mean that even if the prayer for cancellation of the Agreement was allowed by the Civil Court in RCS No. 05/2020 at Quepem Civil Court (filed by Appellant) the complaint instituted by the Respondents would be still maintainable. On the other hand, if the Application of the Appellant is 5 allowed, the Respondent Consumers herein would be non-suited completely defeating the object and purpose of the Consumer Protection Act, 2019 leaving the consumer helpless and victimized by being forced to litigate in an expensive forum.
4. It is pertinent to note at this juncture that if the Appeal is allowed the Respondent Consumers herein would be deprived of a statutory remedy and if the instant Appeal is dismissed then the Developer can still proceed with his suit and in view of the reliefs sought in the suit and the Consumer Complaint both would not be in conflict with each other.
5. Appellant was duty bound to disclose that he has filed a suit at the very first instance and his failure to have not done so, raises a question on his conduct in as much as the present proceedings are in fact a dilatory tactic.
6. The Respondents therefore support the Order of the South Goa District Consumer Commission and pray that the present Appeal be dismissed.
We Observed that:
The Appellant as well as the Respondent prayed for execution of Sale Deed and to accept the balance payment of Rs. 50,000/- from the Respondent. Also both parties prayed for the compensation for the harassment, torture and hardship. And further both the parties have opted to file counter claim. Appellant prayed for legal fees from the Respondent Rs.300/- per hearing until the amount actually realised. We placed reliance on Indian Medical Association Housing Society Ltd v/s M/s Rustumji 6 Developments III (1994) CPJ 130, wherein the Hon'ble National Commission has held that it is not appropriate for the Commission to conduct a concurrent adjudication of the identical issues covering same subject matter when they are already pending adjudication before some other competent authority.
We also place reliance on State Bank Of India vs. Shilender Chaudhary wherein a similar view was taken by Haryana State Commission in State Bank of India v/s Shilender Chaudhary, 2011 CTJ 90, wherein the view held in Karam Singh v/s State Bank Of India and anr. 1994 (2) CPR 474 was followed and it was therefore held that: In Mrs. Hindusthan Motors Ltd v/s Amandeep Singh Wirk and others; Hon'ble S.C. had taken the same view.
It is now well settled within the Consumer Jurisdiction that when an identical or an allied cause of action is in scizing in the plenary counts of law then the Redressal agencies under the Act must stay their hands. It is obvious that no parallel proceedings for virtually same or connected cause of action should be permitted. It would be hardly appropriate that whilst the rights of the parties are yet under trial before a Civil Court a collateral proceedings may be taken cognizance of by the Consumer fora.
Also this very State Commission in CC/04/2015 held that "If the suit was filed against the Complainants, the right remedy for the Complainants was to defend the same and also seek whatever remedies are available to them in the said Civil Suit. With the view to avoid conflict of decisions, we do not propose to entertain this complaint".
After hearing the Oral Arguments from both the Parties and after referring to the Written Arguments 7 from both sides, we in our considered Opinion, pass the following:
Further in Mr. Sheshman Lalman Pandey vs. Shaukat Husain Shaikh Where the Maharashtra State Consumer Dispute Redressal Commission held that 'the remedy of complaint for getting possession of the flat will not extinguish unless the agreement is cancel by the Civil Court'.
The remedy of Complainants for getting possession of the flat will not extinguish unless the agreement is cancelled by the Civil Court. We are of the opinion that after the decision of the Civil Suit the right of the Complainants to get flat on the basis of that agreement will become clear and thereafter the Complainants will be in a position to claim possession of the flat on the basis of that agreement. Under such circumstances, we are of the opinion that the complaint filed by the Complainants for getting possession of flat on the basis of that agreement executed by the Opposite Party No. 1 in their favour is premature at this stage and hence the same is not tenable. Under such circumstances, we are of the opinion that unless the Civil Suit in respect of agreement is finally decided claim of the Complainants for getting possession of flat on the basis of agreement will not become tenable against the Opposite Party No. 1.
After hearing the Oral Arguments from both the Parties and after referring to the Written Arguments from the both sides, we in our considered Opinion. We pass the following:8
ORDER
1. The Appeal is allowed in terms of the Complaint No. 26/2020 may be stayed until the Civil Suit No. 05/2020 is decided as per the Law.
2. The Impugned Order dated 26/10/2020 passed in complaint no. 26/2020 be quashed and set aside.
3. R & P to be sent back to District Commission, South in Complaint No. 26/2020
4. Pronounced in Open Court.
5. Proceedings in the matter stands closed.
[Adv. Mrs. Varsha R. Bale] Officiating President [Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna Anna Maria Gonsalves] Member KK 9