Chandigarh

StateCommission

CC/129/2015

Deepak Jain - Complainant(s)

Versus

Emaar MGF land Ltd. - Opp.Party(s)

Sandeep Bhardwaj, Adv.

01 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	129 of 2015
Date of Institution	:	25.06.2015
Date of Decision	:	01.07.2015

 

1. Deepak Jain, s/o Sh. S.K. Jain, H.No.1158, Universal Enclave, Sector 48-B, Chandigarh. 
2. Varun Sood, S/o Sh. R.K. Sood, H.No.341, Sector 11, Panchkula-134109. 

……Complainants

Versus

1. Emaar MGF Land Limited, (Mohali Hills), SCO 120-122, 1st Floor, Sector 17-C, Chandigarh-160017, through its Managing Director/Director/Authorized Signatory/ Representative.
2. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/ Director/Authorized Signatory/ Representative.

              ....  Opposite Parties

 

Consumer Complaint under Section 17 of the Consumer Protection Act 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

Sh. Sandeep Bhardwaj, Advocate for the complainants.

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainants had earlier filed consumer complaint No.66 of 2013 before this Commission on 27.09.2013, as  the Opposite Parties  had failed  to  deliver  possession  of   plot No.17 measuring 300  Square  yards  in  Block  No.MLU, Sector 109,            SAS Nagar Mohali, Punjab, allotted to them, which was allowed, vide order dated 03.01.2014 (Annexure C-1) in their favour, and the Opposite Parties were directed as under:-

“i.   to handover the physical possession of plot No.17 measuring 300 Square yards in Block No. MLU, Sector 109, SAS Nagar Mohali, Punjab, to the complainants, within three months, complete in all respects from the date of receipt of a certified copy of the order, on payment of amount, if any, due against them (complainants)

ii.   The Opposite Parties, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 20.06.2010 (the promised date of delivery of possession), till delivery of possession of plot No.17 measuring 300 Square yards in Block No. MLU, Sector 109, SAS Nagar Mohali, Punjab, to the complainants, as per Clause 8 of the Plot Buyer’s Agreement dated 20.06.2007, Annexure C-1.

              iii.      The Opposite Parties, are further directed to                   pay compensation, in the sum of Rs.2 lacs,                       on account of mental agony and physical                    harassment, caused to the complainants, at                      their hands.

iv. The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.

 v.            Compensation granted to the complainants, as mentioned in Clause (ii), which has fallen due upto 31.12.2013, shall be paid by the Opposite Parties, within one month, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 20.06.2010, till delivery of possession of plot No.17 measuring 300 Square yards, in Block No. MLU, Sector 109, SAS Nagar Mohali, Punjab.

vi.          Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yards, w.e.f. 01.01.2014, per month, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @9% P.A., from the date of default, till the delivery of possession.

vii. Compensation granted, in favour of the complainants, as mentioned in Clause (iii), shall be paid by Opposite Parties, within a period of one month, from the date of receipt of a certified copy of the order, to them, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization”. 

 

2.         It was stated that the order dated 03.01.2014 (Annexure C-1) was not fully complied with by the Opposite Parties. It was further stated that only symbolic possession was delivered to the complainants vide certificate dated 28.11.2014 (Annexure C-2), whereas the entire compensation/penalty as per Clause 8 of the Agreement was not paid by the Opposite Parties, despite making a number of requests by them (complainants). It was further stated that when the complainants were about to get the registry done of plot No.17, Sector 109, SAS Nagar Mohali, Punjab and also to file execution/criminal application before this Commission, for non-compliance of the order dated 03.01.2014, in totality, it came to their knowledge through other similar located allottees of the same project that the Opposite Parties had violated the order dated 12.12.1996 passed by the Hon’ble Supreme Court of India. It was further stated that it also came to the notice of the complainants that the Opposite Parties did not take approvals/permissions from the Government of India (Forest Department) under the Forest Conservation Act, 1980 and illegally encroached upon the land of the Forest Department, on which Sector 109 had been carved, as a result whereof, their projects in Sectors 105, 108 and 109, Mohali Hills, had been sealed by putting wire fencing and digging of trenches full of water, at all entry points.

3.         It was further stated that when the complainants went to Sector 109, Mohali Hills, Mohali, they  were           not  allowed  to  enter  the  premises  of  Sector                  109,  Mohali  Hills,  Mohali,  by  the  Guard  deputed,         as  there  was  fencing  of  wires  and  trenches  were dug which were full of water, on all the entry points. It was further stated that even the said Guard misbehaved with them, and they were not allowed to enter into the same, despite their telling him that they owned a plot in sector 109. It was further stated that same was the case with Sectors 108 and 105, Mohali Hills, Mohali.

4.         It was further stated that thereafter the complainants kept on approaching the Office of the Opposite Parties, to apprise them, but they failed to give any reply. It was further stated that in the mid of May 2015, again the complainants visited the office of the Opposite Parties and requested their officials to apprise them about the fact as to why they were not allowed to enter the premises of Sector 109, Mohali Hills, Mohali, as they wanted to see their plot, to get registry done and start the construction. It was further stated that a meeting was held between the complainants and Mr. Rahul representative of the Opposite Parties. Mr. Rahul was unable to answer the queries raised by the complainants. The request of the complainants for appointment with top Officials or Officers of the Opposite Parties, was also declined. It was further stated that, in the meanwhile, one of the similar located allottees sought information under the Right to Information Act 2005, from the Government of Punjab, Forest Department, in the matter. It was further stated that the complainants were shocked to see and read the information dated 05.05.2015 (Annexure C-3), wherein the Government of Punjab, Forest Department, SAS Nagar, Mohali in clear-cut terms intimated that “…All the entry points of Sectors 109, 108 and 105 relating to the project of M/s Emaar MGF Land Ltd. (Mohali Hills) have been sealed/closed by fencing spike wires and digging trenches. All the above said sealing/fencing has been done and the trenches have been dug as the User Agency has not been granted approval under FBAS-1980 from the Government of India. The said entry points would be reopened only after the necessary approvals are granted. However in respect of Sector 109, it is intimated that under IFA-1927, Rule 29,33 and 66 and also violation of order dated 12.12.1996 of the Hon’ble Supreme Court of India, a case has been filed on 03.07.2012 which is pending adjudication before the Kharar Court. Photocopies of the said case are attached.”

5.         It was further stated that, on the other hand, when the consumer complaint was filed before this Commission on 27.09.2013, the  Opposite Parties while filing reply and evidence, concealed the material fact, from this Commission, that they had violated the order dated 12.12.1996, passed by the Hon’ble Supreme Court of India i.e. they had not taken approvals/permissions from the Government of India (Forest Department) under the Forest Conservation Act, 1980 and had illegally encroached upon the land of the Forest Department, on which Sector 109 had been carved, as a result of which, their projects in Sectors 109, 108 and 105, Mohali Hills had been sealed by the Government (Forest Department). It was further stated that the Opposite Parties did not even make a buzz in their written version about the pending litigation against them in Kharar Court, under the Indian Forest Act 1927. It was clearly intimated vide the information under RTI 2005, that the Opposite Parties had even refused to accept the notice served upon them and to pay the fine imposed upon them. It was further stated that had this picture been made clear to the complainants, at the time of filing the written reply, and evidence or at the time of arguments by the Opposite Parties, the complainants would have moved an application for making refund of the amount deposited, by filing amended relief Clause in the earlier consumer complaint. It was further stated that the complainants could have very well sought refund of the amount, deposited by them, alongwith interest, compensation and litigation rather than the possession, which was not possible to be delivered on account of the aforesaid reasons. It was further stated that, thus, it was on account of concealment of material facts from this Commission, that the complainants could not move an application before this Commission, to amend the relief clauses, resulting into passing the award of possession of plot in their favour, which in any case was not feasible on account of the pending litigation and violation of the order of the Hon’ble Supreme Court of India and Forest Conservation Act, 1980 by the Opposite Parties.

6.         It was further stated that, thus, the possession delivered to the complainants vide certificate dated 28.11.2014 is nothing but just a paper possession which infact has no value. It was further stated that the Government of Punjab made it clear that the sealing/fencing would be removed only if the permissions were granted to the Opposite Parties, from the Forest Department. It was further stated that the Opposite Parties till date did not even apply to the Forest Department and, on the other hand, they refused to accept the notice served upon them and to pay the fine imposed upon them.

7.         It was further stated that, in the instant case, the complainants had already made the payment of entire amount of Rs.42,02,283/-, towards sale consideration in respect of the plot, in question, as is evident from the statement of account dated 23.12.2014 (Annexure C-4) issued by the Opposite Parties and were still empty handed as the project had been sealed by the Government on account of the reasons above-mentioned. It was further stated that, thus, the scheme floated by the Opposite Parties, was just a mockery and an attempt to carry on unfair trade practice. It was further stated that      fresh cause of action arose to the complainants in 2015, when they came to know that the project wherein they were allotted plot No.17, Sector 109, SAS Nagar Mohali, Punjab, had been sealed by the Government of India.

8.            It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the entire amount of Rs.42,02,283/-, deposited by them towards plot No.17 measuring 300 square yards in Block No. MLU, Sector 109, SAS Nagar Mohali, Punjab, alongwith interest @ 18% P.A. from the respective dates of deposits till realization; pay compensation in the sum of Rs.10 lacs on account of concealment of material facts above-said, deficiency in service, unfair trade practice, mental agony, physical harassment, escalation in cost and financial loss to the complainants and Rs.50,000/- as cost of litigation to them (complainants). 

9.         The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.

10.       We have heard the Counsel for the complainants, and have gone through the evidence and record of the case, carefully. 

11.        The core question, that arises for consideration, is, as to whether, the instant complaint is maintainable or not, for the reason, that the earlier consumer complaint bearing No.66 of 2013 titled as ‘Deepak Jain and another Vs. Emaar MGF Land Limited and another’, having been filed by the complainants, relating to the same plot and almost on the same cause of action, was partly accepted, on merits and direction for handing over physical possession of the plot, in question, apart from grant of other reliefs by this Commission. In that complaint, the complainants in the prayer clause, in clear-cut terms, sought relief of physical possession of the plot allotted to them etc. etc. and no alternative relief to refund of the deposited amount, was sought by them (complainants). Thus, keeping in view the reliefs sought, this Commission vide the order dated 03.01.2014 passed in the earlier consumer complaint, directed the Opposite Parties, to handover physical possession of the plot, in question. If the complainants did not seek the specific relief regarding the refund of the deposited amount, in the prayer Clause, which was very much available to them at that time, they deemed to have abandoned or relinquished the same (claim), in respect of a part of cause of action, which had already accrued in their favour. That complaint was finally heard, and decided vide order dated -03.01.2014, Annexure C-1. In the instant complaint, the complainants sought relief to direct the Opposite Parties, to refund the entire amount of Rs.42,02,283/- towards the plot, in question, besides compensation and cost of litigation to the tune of Rs.10 Lacs and Rs.50,000/- respectively. Since the complainants, abandoned and relinquished the claim, in respect of the cause of action, which had already arisen to them, at the time of filing the earlier complaint, they could not claim such a relief, in the instant complaint, on the ground that it came to their knowledge subsequently. In these circumstances, the principles contained in Section 11 and Order II Rule 2 of the Civil Procedure Code, shall be applicable, to the instant complaint. It is, no doubt, true that the strict provisions of Section 11 of the Civil Procedure Code are not applicable, to the complaints, before the Consumer Foras, yet, the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule-2 of the Civil Procedure Code, could be applied, as those are based on public policy. The issues involved, in the instant complaint, were directly and substantially in issue, in the earlier complaint also, which was finally heard and decided, on merits. The instant complaint, is, thus, not maintainable, being barred by the principles of res-judicata, and Order II Rule 2 Sub Rule 2 of the Code of Civil Procedure, referred to above, and that too, when the earlier complaint on the same facts, was heard and decided on merits by this Commission. In case the instant complaint is entertained by this Commission, ignoring the fact that the earlier complaint relating to the same subject matter and almost on the same cause of action was decided on merits, wherein order for handing over of physical possession of the plot, in question, besides other directions, was passed, the same would amount to reviewing the order passed by this Commission, which power this Commission does not have.

 

12.          The Hon’ble Supreme Court has repeatedly held that if a plaintiff omits to sue, in respect of or intentionally relinquishes any portion of his claim, he shall not, afterwards, sue in respect of the portion, so omitted or relinquished. As stated above, since, in the earlier complaint, the complainants had themselves abandoned and relinquished the claim, by not seeking specific relief viz. refund of the entire deposited amount, in the prayer clause, that direction cannot be issued at this stage, when already an order on merits, was passed by this Commission in the earlier complaint involving identical facts. Since the complainants abandoned and relinquished the claim, with regard to the refund of the entire deposited amount, in the earlier complaint, which was also available to them at the time of filing the same (earlier complaint), they cannot be permitted to claim that relief, in the instant complaint on the ground that new facts came to their knowledge later on. The Hon’ble Supreme Court of India, in Kunjan Nair Sivaraman Nair vs Narayanan Nair And Ors. 2004 (3) SCC 277,  held as under:-

“Rule of res judicata is contained in Section 11 of the Code. Bereft of all its explanations, namely, Explanations I to VIII, Section 11 is quoted below:

11. Res judicata. - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raise, and has been heard and finally decided by such court.

Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk to mere "res judicata". Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.

The above position was noted in Deva Ram and Another v. Ishwar Chand and Another (1995 (6) SCC 733).

The doctrine of res-judicata differs from the principle underlying Order II Rule 2 in that the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted.”

 

13.       Similar principle of law, was laid down, in M.  Nagabhushana Vs. State of Karnataka and Others, 2012(1) RCR (Civil) 807 (SC), wherein the Hon’ble Apex Court, held in Paras 23 & 24 as under:-

“23.      This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.

24.        In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard – (1947) 2 All ER 255 (CA): “I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.”

14. The National Consumer Disputes Redressal Commission, New Delhi, in Revision Petition No.1767 of 2006, titled as Maruti Udyog Limited Vs. K.V. Krishnam Raju and Ors., decided on 08.10.2010 also held that the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule 2 of the Civil Procedure Code, could certainly be applied to the complaints, filed before the Consumer Foras, as those are based on public policy. Since, it is held that the complaint is not maintainable, as it is barred by the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule 2  of the Civil Procedure Code, no further investigation, on merits, of the case, is legally permissible once the earlier complaint having the same facts has already been decided by this Commission on merits. The complaint is, thus, liable to be dismissed.

15.       The judgment relied upon by the Counsel for the complainants in Jaswant Singh & Anr. Vs. The Custodian of Evacuee Property, New Delhi, 1985 AIR 1096, is distinguishable, on facts, as in that case, the Custodian of Evacuee Property, New Delhi (respondent) could not have asked for the relief, which it claimed in the subsequent application, which gave rise to the appeal and it was held that the proceedings were not barred by the rule of res judicata, even though in both the proceedings, the prayer made by the Custodian was that the sale of the properties, in question should be set aside. The Hon’ble Apex Court held that the Division Bench was right in holding that the present proceedings were not barred by the rule of res judicata. However, in the instant case, the complainants could have sought relief, regarding the refund of entire deposited amount, but they chose to relinquish the said relief and claimed physical possession of the plot, in question. Thus, no cause of action arose to the complainants for claiming refund of the amount by way of filing the instant complaint. As such, the judgment rendered in Jaswant Singh & Anr. Vs. The Custodian of Evacuee Property, New Delhi’s case (supra) is of no help to the complainants.

16.          For the reasons recorded above, the complaint, must fail, and the same is dismissed, being not maintainable, as indicated above, with no order as to costs.

17.       Certified Copies of this order be sent to the parties, free of charge.

18.       The file be consigned to Record Room, after completion.

Pronounced

July 01, 2015.

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 [PADMA PANDEY]

 MEMBER

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