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I.A. No. 19063 of 2019

1.         This is an application filed by the opposite party assailing the maintainability of the consumer complaint filed in this Commission

2.         We have heard the learned counsel for the two sides as also perused the material on record including the said application and the reply thereto.

3.         Learned counsel for the opposite party submits that the instant complaint before this Commission was filed on 10.10.2019. Prior thereto, a complaint was filed on 31.05.2019, by the same complainants herein, on the same cause of action, before the Real Estate Regulatory Authority (RERA). The complaint before RERA was dismissed on 24.2.2020, but Appeal thereagainst was filed by the complainant with the Real Estate Appellate Tribunal (REAT) on which notice has been issued on 12.8.2021. The appeal before REAT is pending. The legality of the present proceedings has been seriously questioned drawing our attention to the principle of law contained in Section 10 of CPC. Much emphasis has been laid upon the unreasonableness, unjustifiability and legal impermissibility of the dual proceedings initiated in two different tribunals of competent jurisdiction seeking similar kind of relief with regard to similar cause of action.

Learned counsel for the complainants does not dispute that (i) the instant complaint was filed before this Commission subsequent to the complaint having been already filed before the RERA, (ii) the RERA dismissed the complaint before it, (iii) appeal thereagainst is pending before the REAT and (iv) the principal parties in the twin proceedings are the same.

4.         We note that the complainants herein filed a complaint bearing No. CC006000000078452 of 2019 before the RERA on 31.05.2019, in which the following prayer was made.

a)   That the Hon’ble Authority be pleased to direct the Respondent to refund an amount of Rs.5,08,75,709/- (Rupees Five Crores Eight lakh Seventy Five Thousand Seven Hundred and Nine Only) paid towards the purchase.

b)   That the Hon’ble Authority be pleased to direct the Respondents to not only refund the amount paid towards the purchase, but also the interest at the prevailing rate of the market per annum till the realisation.

c)    That the Hon’ble Authority be pleased to direct the Respondent to pay the compensation for mental agony faced by the Complainant throughout the delay time period Rs. 3,00,000/- (Rupees Three Lakh only) and legal expenses of Rs. 5,00,000/- (Rupees Five Lakh Only)

d)    And be further pleased to grant such other relief and pass such other order as may have deemed fit in the facts and circumstances of the case and in the interest of justice.

Subsequent thereto, they filed the instant consumer complaint no. 2016 of 2019 before this Commission on 10.10.2019, in which the following prayer was made:

i.   To refund sale consideration of Rs. 4,68,84,923/- (Rupees Four Crore Sixty Eighty Lakhs Eighty Four Thousand Nine Hundred and Twenty Three only) paid by the Complainants for the said Flat (i.e. B-4204 more particularly described in the said Agreement for Sale);

ii.  To refund the Stamp duty and Registration charges of Rs. 24,50,000/- (Rupees Twenty-Four Lakhs and Fifty Thousand only) paid by the complainants;

iii.  To pay an interest amount of Rs. 10,16,48,717/- (Rupees Ten Crore Sixteen Lakhs Forty Eight Thousand Seven Hundred and Seventeen only) calculated @ 18% per annum (Quarterly Compounded) from the actual date of payment till 20.09.2019 as per terms of Clause 19 of the said Agreement which the Opposite Party charged for delayed payments from the Complainants;

iv. Rs. 25,00,000/- (Rupees Twenty Five Lakhs Only) as compensation for loss of opportunity and mental harassment;

v. Rs. 5,00,000/- (Rupees Five Lakhs Only) towards cost of litigation;

vi. Further future interest @18% per annum on amount payable under above-mentioned clause (i), (ii), (iii) from 21.09.2019 till realisation.

vii. To pass such other order(s) which the Hon’ble Commission deems fit and proper in the facts and circumstances of the complaint in favour of the Complainants and against the Opposite Party.

Mere perusal of the respective prayers made before the RERA and before this Commission shows that their essence is the same, and they have been filed on the same cause of action.

5.         Here at this stage the substantial and substantive principle of law contained in Section 10 of the CPC is being reproduced for ready reference:

10. Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government] and having like jurisdiction, or before [the Supreme Court].

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action.

It is manifest that the matter in issue involved in the proceedings here was directly and substantially in issue in a previously instituted case between the same parties before the RERA, prior to the institution of the instant complaint before this Commission. As such the instant complaint appears to be untenable and proscribed by the spirit and principle of law contained in Section 10 of the CPC when it was instituted before this Commission.

Further, even today, as the things obtain, the complainants have not accepted the verdict of the RERA dismissing the complaint before it and they have filed appeal thereagainst before the REAT.

In such facts and situation, as already described, the subsequent complaint before this Commission appears to be neither justifiable nor sustainable or maintainable.

6.         We thus deem it appropriate and necessary to dismiss the instant complaint no. 2016 of 2019 before this Commission.

Concomitantly however, to ensure that there is no miscarriage of justice, we also deem it appropriate and necessary to make it explicit here itself that if at any occasion in the future for whatever reason the matter in issue is not barred by the principles of law contained in Section 10  res sub judice or Section 11 res judicata of the CPC, the complainants shall be free to file a fresh complaint before the competent forum having the pecuniary and territorial jurisdiction therefor established under the Act 2019 and convince the said forum at the stage of admission that the cause of action subsists and the matter in issue is not barred by the principles of law contained in Section 10 or Section 11 of the CPC. In respect of limitation, if the cause of action is not a continuing cause of action (which per se is not barred by limitation), they shall be free to invoke the provision contained in sub-section (ii) of Section 69 of the Act 2019.

7.         The Registry is requested to send a copy each of this Order to all parties in the complaint and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.