State Consumer Disputes Redressal Commission
Mansur Yusuf Kapadia, vs Mrs.Devki C. Vyas & Ors. on 9 August, 2011
C-167/1999 (pronounced)
BEFORE THE HON'BLE STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/05/24
(Arisen out of Order Dated
30/10/2004 in Case No. 160/2003 of District Thane)
1.
MANSUR YUSUF KAPADIA,
MIDC,
PLOT NO.A2, 1 TO 4, OPP MILTON POLLY PLAST, NEAR AMAR PALACE HOTEL,
MIRA, DIST THANE.
...........Appellant(s)
Versus
1.
Mrs.DEVKI C. VYAS,
301,
SHIV ASHISH CHANDAN
PARK,
BHAYANDAR(e), THANE.
2.
M/S DEVANGAN BUILDERS & DEVELOPERS,
A
PROPRIETTARY CONCERN, REPRESENTED BY MRS. DEVKI C. VYAS, A-WING, DATTARAY PARK,
KRISHNA STHAL, NR. MUNSHI COMPOUND, MIRA ROAD,
DIST. THANE.
3.
Mr.SURYAKANT A. BHOIR,
M/S
ALKA CONSTRUCTIONS, YASHODA NIWAS, NR. MIRA POST (MIRA GAON), MIRA ROAD,
DIST. THANE.
4.
M/S ALKA CONSTRUCTION,
A
RPOP. CONCERN OF MR. SURYAKANT A. BHOIR, CORPORATOR.
...........Respondent(s)
BEFORE:
Hon'ble
Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member PRESENT:
None present for both the parties.
O R D E R Mr.P.N. Kashalkar Honble Presiding Judicial Member:
None present for both the parties.(1)
This appeal has been filed by the original Complainant whose complaint No.160/2003 was dismissed by the Consumer Disputes Redressal Forum, District Thane by judgement and order dated 30.10.2004.(2)
The Appellant had filed consumer complaint in the District forum, Thane against the Respondent Builder Developer. According to Appellant he had booked tenement i.e. Shop No.A-7 in Yashoda Apartment, which has been constructed at Village Mira, District Thane and it has been developed by Opponent Nos.3 and 4. Complainant had paid total amount of `2,52,000/- for the said tenement to Opponent Nos.3 and 4.
Later on Opponent Nos.3 and 4 assigned development rights in favour of Opponent Nos.1 and 2. But Opponents have not given possession to the Complainant even when he had paid full amount. Therefore, he had filed consumer complaint before Thane District Forum. Complainant had filed several police complaints for the fraud committed by all Opponent Nos.1 to 4. Complainant prayed in the consumer complaint for direction to refund the said amount paid by him to the Opponent with interest @21% per annum besides he also claimed compensation.(3)
Notice was issued to the Opponents, but, Opponents did not contest the matter.
So, complaint was proceeded ex-parte against the Opponents. The District Forum therefore heard the Complainant and after hearing, the District Forum was pleased to dismiss the complaint on the ground that Complainant had also approached Thane Civil Court and filed Civil Suit bearing No.317/03 before filing consumer complaint in Consumer Disputes Redressal Forum, District Thane. According to District Forum, when Complainant had also approached the Civil Court with identical subject matter for identical relief which was pending in Civil Court for adjudication, the District Forum had no jurisdiction to entertain consumer complaint for similar reliefs, particularly since the matter was subjudice before the Civil Court. Thus, obviously the District Forum was pleased to dismiss the complaint.(4)
After this appeal was filed in 2005 till today no circulation was taken by the Appellant.
No steps were taken to serve the Respondent and for the last six years this matter is pending before the registry of this Commission. When this matter was placed before us, we have perused the impugned order and we find that there is no substance in the appeal. When any person is aggrieved by the deficiency in service on the part of the Opponent/Respondent, no doubt, he is entitled to file consumer complaint.
However, if he has already invoked the jurisdiction of Civil Court, then, he cannot be permitted to file consumer complaint for the same subject relief. Under Section 3 of the Consumer Protection Act additional remedy besides the remedies available under any law for the time being in force has been provided under the Consumer Protection Act, it is for the party to opt any one course open to it out of the various remedies available to him. But, once he decides to file civil suit against the builder developer for redressal of his grievance his doors are shut, so far as for filing of the consumer complaint for the same subject matter under the Consumer Protection Act.
Therefore, the District Forum has rightly dismissed the complaint though it has proceeded ex-parte. Thus, we find no substance in the appeal filed by the Complainant and the same is liable to be dismissed. Hence, we pass the following order:
O R D E R (i) Appeal stands dismissed. (ii) No order as to costs. (iii) Inform the parties accordingly. Pronounced on 9th August, 2011. [Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member ep