This consumer complaint has been filed by Gatha Tiwary & anr. against the opposite parties Emaar MGF Land Ltd. & anr. alleging deficiency in service.  IA No.3755 of 2017 has been filed by the opposite parties mentioning that the complaint is not maintainable as one of the joint complainants namely, Anurag Rudra @ Mr. Anurag Tiwary, had earlier filed a civil suit for the same relief, however, the civil suit has been dismissed and relief has not been granted to the complainants.  In this context, it has been alleged that the complaint filed before this Commission under Consumer Protection Act, 1986 is not maintainable and the same is barred by res judicata.  The complainants filed reply to this IA/3755/2017.  Both the parties were heard on this IA/3755/2017.

2.      Learned counsel for the opposite parties stated that the booking has been made by the two complainants in their joint names.  The complainant No.2, Anurag Rudra @ Mr. Anurag Tiwary had filed a civil suit before the Additional District Judge Gurgaon, with the following prayers:-

“a)    Award recovery of Rs.65,19,521/- (Rupees sixty five lacs nineteen thousand five hundred and twenty one only) to the plaintiff against the defendant.

b)   Award pendentilite interest @24% per annum and @ 18% per annum by way of future interest.

c)     Award costs of the suit to the plaintiff and against the defendant.

d)    Grant such other, or further, relief as the plaintiff may be found entitled to.”

3.      After contest, the suit was dismissed on 11.07.2016. Thus, this dismissal of the suit filed by one of the complainants will act as res judicata for the present complaint case where similar relief has been sought.  The prayers made in the present complaint are:-

“(a)          to refund/return the amount of Rs.65,19,521/- (rupees sixty five lakhs nineteen thousand five hundred twenty one only) paid towards the cost of the ‘Retail Space’ in the project “Capital Tower-I” to the opposite party;

(b) to award compensation of Rs.15,00,000/- calculated @ 18% per annum on the paid amount of Rs.25,00,000/- (Rupees twenty five lakhs only) to the opposite party on 29.07.2013 against the booking of the ‘Retail Space’ from August 2013 to Nov 2016 and onwards till payment;

(c)  to award compensation of Rs.22,91,126/- calculated @18% per annum on the paid amount of Rs.40,19,521/- (Rupees forty lakhs nineteen thousand five hundred twenty one only) to the opposite party on 04.10.2013 against the booking of the ‘Retail Space’ from 5.10.2013 to 04.12.2016 and onwards till payment;

(d)  to award compensation for a sum of Rs.4,00,000/- (Rupees four lakhs only) on account of continuous harassment, torture, mental agony, financials sufferings, depression etc. as a result of deliberate deficiency in services and unfair trade practice by the opposite party.

(e)    to award exemplary cost in favour of the complainant and against the opposite party as this Hon’ble Commission deem fit and proper in the facts and circumstances of the case;

(f)    grant such other or further relief(s) to the complainant as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case;” 

4.      On the basis of the above arguments, learned counsel for the opposite parties stated that the present complaint is not maintainable as the decision of the civil court in suit will act as res judicata.  In support of his arguments, learned counsel for the opposite parties referred to the judgment of this Commission in Damayanti Kantilal Shah Vs. Rashmi Gruha Nirman Ltd. and ors., I(2016) CPJ 235(NC). In this case there were dissenting orders by the two Members and the third Member was appointed by the Hon’ble President NCDRC who passed the following order:-

“Earlier arguments in above petitions were heard by the Bench of Hon’ble Mr. Justice K.S. Chaudhari, Presiding Member and Hon’ble Dr. B.C. Gupta, Member. Since, there was difference of opinion amongst the Members, separate orders have been dictated by the Hon’ble Members.         

By virtue of Provisions of Section 21(A)(iii) of Consumer Protection Act, 1986 (for short, ‘Act’), these petitions  have been referred to the undersigned for deciding the following legal question involved in this case;

“Whether the consumer complaint for same relief filed before the District Forum is maintainable, when the civil suit for the same relief has already been filed before the Civil Court prior to the filing of the consumer complaint.” 

      I had the opportunity of going through the draft orders, dictated by the Hon’ble Members.         

After hearing both parties and going through the record, in my opinion the consumer complaint filed by the Petitioners/Complainants before the District Forum are not maintainable, when civil suit for the same relief has already been filed before the Civil Court, prior to filing of the consumer complaint.         

Hence, I concur with the reasonings given by Hon’ble Mr. Justice K.S. Chaudhari.”

5.      Learned counsel for the opposite parties argued that in the above case, it was only that the civil suit was only filed before filing of the complaint, but in the present case the civil suit has been decided and then the complaint has been filed.  Clearly, in the present case, the complainants cannot pursue the second remedy after decision of one competent court on the same relief.  

6.      On the other hand, learned counsel for the complainants stated that there is no bar that a person cannot pursue two remedies at different fora.  He further stated that only one of the complainants had filed the civil suit and other complainant Ms. Gatha Tiwary was not a party in that civil suit and therefore, qua the first complainant Ms. Gatha Tiwary, this complaint is clearly maintainable.  It was further argued that if the complaint is maintainable for one of the complainants and the second complainant is only the joint allottee, the whole complaint would be maintainable.  Otherwise also, the remedy under the Consumer Protection Act, 1986 is an additional remedy which can be availed by a consumer and there is no provision in this Act that bars the availment of any other remedy.   In support of his arguments, learned counsel referred to the following judgements:-

          1.   Dhanbir Singh Vs.  Haryana Urban Development Authority, (2013) 11 SCC 472.  It has been held that:

“8.   The Consumer Protection Act, was enacted to provide for better protection of the interests of consumers and for establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.  Section 3 declares that the provisions contained in the Act are in addition to and not in derogation of the provisions of any other law for the time being in force.  There is no provision in the Act which bars filing of a complainant by a consumer after availing other statutory remedies.  In matters like allotment of plot/land by HUDA and other similar agencies/ instrumentalities of the State, whose functioning is governed by the law enacted by the State Legislature, departmental remedies are usually available to an aggrieved person.  If such person falls within the definition of consumer under Section 2(d) of the Act then he can directly file a complaint under Section 12,17 and 21, as the case may be.  He can also avail departmental remedy by filing an appeal.  Once the appeal is decided and the consumer is aggrieved by the decision of the appellate authority then he can challenge the action/decision of the initial authority as well as the appellate authority by filing a complaint.  If the complaint is time barred, the consumer can seek condonation of delay by filing an application under Section 24-A(2).”

“2.     Hindustan Motors Ltd. Vs. Amardeep Singh Wirk & Ors., III (2009) CPJ 417 (DB).  The Delhi High Court has held that:-

16. In the light of the judgments discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and in a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar. The LPA No. 204/2009 Page 17 of 18 remedies are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act. It is also pertinent to mention that in the present case, the proceedings in the Civil Court and those in the Consumer Forum have been initiated by two different parties though, admittedly, their grievances relate to the same incident as also the fact that the two parties are related. However, the fact remains that they are two independent parties who have initiated independent and separate proceedings before this High Court and the Consumer Forum.”

7.      On the basis of the above judgments, learned counsel for the complainants emphasised that two proceedings are independent and there is no bar that if a case is instituted in the civil court for a particular relief, the same cannot be taken up as complaint filed before a consumer forum.  Thus, even if one of the complainants has availed the remedy in the civil court, even that complainant and particularly the second complainant cannot be debarred from initiating a complaint against the same opposite party in a consumer forum.  Hence, IA No.3755 of 2017 filed by the opposite parties should be rejected.

8.      I have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the material on record.  This Commission in Damayanti Kantilal Shah Vs. Rashmi Gruha Nirman Ltd. and ors. (supra) has accepted by a majority decision that if a case was already filed before the civil court, a complaint case cannot be filed before the consumer forum for the same relief.  In the present case, it is seen that the main relief sought in the civil court and in the present complaint is same.  Only difference is that the civil suit was filed by one of the complainants Anurag Rudra @ Mr. Anurag Tiwary and the present complaint is filed by two complainants, who are joint allottees of the flat. 

9.      It is further seen that the judgment of Hon’ble Supreme Court in Dhanbir Singh Vs.  Haryana Urban Development Authority, (supra) relied upon by the learned counsel for the complainants, has different facts and the observation of the Hon’ble Supreme Court is that a remedy availed by a person within the frame work of the particular departmental provision statute, cannot debar the person from filing complaint before a consumer forum.   The present case is on a different footing.  One of the complainants has availed remedy of civil suit in a civil court and the final order in the civil suit has already been pronounced.  Therefore, the case relied upon by the learned counsel for the complainants is not applicable in the present case.  Learned counsel for the complainants has relied upon the judgment of Delhi High Court in Hindustan Motors Ltd. Vs. Amardeep Singh Wirk & Ors. (supra), where the facts are that two different parties approached civil court and consumer forum separately for award of  compensation for the death of their relative in a motor accident alleging manufacturing defect in the motor.  Definitely two different parties can seek remedy from two different forums on the same cause of action separately and independently.  Clearly, two independent proceedings can proceed at different forums.  However, it will be for the opposite parties to object and to get both the plaintiff parties engaged before both the forum.  Clearly, once this is done, perhaps as per Section 10 of the Code of Civil Procedure, 1908 (CPC), one of these two cases may remain stayed so that no contradictory judgments are passed in two cases.  Moreover, in the judgment of Delhi High Court in Hindustan Motors Ltd. Vs. Amardeep Singh Wirk & Ors.,(supra) two different parties had filed their cases in civil court and before the consumer forum and therefore, the question of res judicata cannot arise because the parties are different.  Thus, clearly this judgment also does not seem to be applicable in the present case as it does not conclude that the same party can pursue remedy in a civil suit as well as in a complaint case.

10.    Now a separate question is to be considered in the present case. Only one complainant had filed the civil suit and the same has been decreed in favour of the opposite parties.  Clearly this will act as res judicata against any further suit or proceedings filed by atleast that complainant.  Thus, the present complaint is definitely barred qua complainant No.2 Anurag Rudra @ Mr. Anurag Tiwary.  Now the question arises as to what happens to the complaint filed jointly by the two complainants including the complainant who had filed the civil suit.  Both the complainants are joint allottee of the same unit and opposite parties are the same, who were defendant in the civil suit. Explanation VI of the Section 11, which deals with res judicata reads as under:-

        “Explanation VI - Where  persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”

11.    This point is illustrated in Singhai Lal Chand Jain Vs. Rashtriya Swayam Sewak Sangh, Panna, JT 1996 (3) SC 64 where the Sangh has been duly represented in the previous court proceedings and were litigating bona fidely which resulted in failure cannot be allowed to lay any objection in execution or to plead nullity of decree hence doctrine of res judicata applies.  The decree of ejectment will bind every member of Sangh.

12.    In the present case, clearly the complainant No.2 bona fidely filed a civil suit before the civil court for his right to get refund from the opposite parties. As the unit involved is the same and both the complainants are joint allottee/joint purchaser, therefore, their rights are the same for which one of the complainants filed the civil suit.  Explanation VI as mentioned above implies that res judicata will operate on complainant No.1 also.

13.    On the basis of the above discussion, I am of the view that the decision dated 11.07.2016 in the civil suit No.CS/21445/2014 Anurag Rudra Tiwari Vs. M/s. Emaar MGF Land Ltd. will operate as res judicta for the present complaint which has been filed against the same opposite parties.  Accordingly IA No.3755 of 2017 is allowed and the complaint No.2087 of 2016 is dismissed as being non-maintainable before this Commission.