(PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER)

1.      Heard Mr. Devdatt Kamat, Sr. Advocate, assisted by Mr. Nishant Patil, Advocate, for the complainant and Mr. Rahul Kriplani, Advocate, for the opposite party. 

2.      The complainant filed IA/10746/2023, for amending the name of the complainant as “Kanoria Energy & Infrastructure Limited”, changed as per provisions of the Companies Act, 2013 and recorded in the Registration Certificate in the office of Registrar of Companies, after, reserving the case for judgment. IA/10746/2023 is allowed. 

3.      A. Infrastructure Limited (now Kanoria Energy & Infrastructure Limited) has filed above complaint for directing the opposite party to (i) refund Rs.226150308/- with interest @18% per annum, compounded quarterly from the date of agreement till the date of refund; (ii) pay Rs.100000000/-, as compensation for escalation of price; (iii) pay Rs.110000000/-, as compensation for mental agony and harassment; (iv) pay Rs.2000000/-, as litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

4.      The complainant stated that Jawala Real Estate Private Limited now merged with Microtech Developers Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Trump Tower” at Cadastral Survey No.464 of Lower Parel Division, situated at Senapati Bapat Marg, Worli, Mumbai, in the year, 2014 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked one 3BHK flat i.e. Unit No.A-5901, carpet area 1304 sq.ft. + two car parking, sale price Rs.96025320/- on 16.08.2014 and deposited booking amount of Rs.900000/-. The complainant booked one 4BHK flat i.e. Unit No.A-5902, carpet area 1511 sq.ft. + three car parking, sale price Rs.113655015/- on 05.09.2014 and deposited booking amount of Rs.10912070/-. The opposite party executed two Agreements to Sell in favour of the complainant on 27.11.2014, in respect of above flats. Annexure-2 of the agreement provides payment plan as “construction linked payment plan”. Clause-12.1 of the agreement read with Annexure-2 provides the date as on or before 31.12.2018 for handing over fit-out possession. Clause-12.2 provides one year period as grace period. Clause-12.3 of the agreement provides that in case the opposite party failed to deliver possession, even after expiry of grace period, the purchaser will have right to terminate agreement within 90 days thereafter and seek refund and the opposite party shall refund entire amount with interest @12% per annum in 12 equal monthly instalments. The complainant deposited the instalments on time as per demand of the opposite party and deposited more than basic sale consideration of both the flats till 2018. Due date of possession expired on 31.12.2018 and grace period expired on 31.12.2019. The complainant inquired about expected date of delivery of possession through email dated 15.02.2018. Then the opposite party, vide email dated 16.02.2018, informed that within 3 to 6 months of grace period, fit-out possession would be given. When the opposite party did not give information regarding possession, then the complainant again inquired about possession, vide email dated 11.10.2019, then they vide email dated 14.10.2019 informed that possession would be given in financial year 2020-2021. The complainant, then terminated the agreements, vide letter dated 17.01.2020 and asked for refund of its money. The opposite party, vide email dated 29.01.2020, informed that they had obtained “occupation certificate” and in process of offering possession from the lower floor. The complainant, then, gave a legal notice dated 14.02.2020, calling upon the opposite party to refund its money with interest within 30 days. In spite of service of the notice, the opposite party did not respond then the complainant filed Complaint Nos.CC006000000193791 and CC006000000193793 on 21.08.2020. before Maharashtra Real Estate Regulatory Authority. The opposite party issued letters relating to offer of possession on 30.12.2020 with demand of balance amount. Maharashtra Real Estate Regulatory Authority dismissed above complaints vide order dated 27.06.2022. Then the complainant filed this complaint on 14.09.2022, for deficiency in service on the part of the opposite party.

 5.     The opposite party filed IA/1233/2023 for dismissing this complaint as barred by res-judicata and doctrine of estoppel by election on 03.02.2023. The opposite party stated that the complainant had filed Complaint Nos.CC006000000193791 and CC006000000193793 on 21.08.2020, before Maharashtra Real Estate Regulatory Authority, seeking the relief of refund and voluntarily elected remedy under Real Estate (Regulation and Development) Act, 2016 (for short the RERA). Maharashtra Real Estate Regulatory Authority dismissed above complaints vide order dated 27.06.2022, holding that as the opposite party offered possession on 30.12.2020, after obtaining “occupation certificate”, there was no unreasonable delay in offer of possession. These judgments operate as res-judicata between the parties. The complainant has filed appeals before appellate authority from the order of Maharashtra Real Estate Regulatory Authority dated 27.06.2022, which are pending. The complainant has also filed applications before National Company Law Tribunal, Delhi and National Company Law Tribunal, Mumbai, under the provisions of Insolvency and Bankruptcy Code, 2016, against the opposite party, which are pending. The complainant has already availed alternative remedies available under the law as such this complaint be dismissed on the doctrine of estoppel by election.

6.      The counsel for the complainant did not dispute above facts but relying upon Section 18 of the RERA submitted that remedy under the RERA is ‘without prejudice to any other remedy’, therefore the present complaint is maintainable. He relied upon judgment of Supreme Court in A.P. State Financial Corporation Vs. M/s. Gar Re-Rolling Mills, (1994) 2 SCC 647, holding that the expression “without prejudice to the provisions of section 29 of the Act” used in Section 31 of State Financial Corporation Act, 1951, indicates that recourse of provisions under Section 29 of the Act, is not prohibited, where an order or decree under Section 31 was obtained by the Corporation. Pioneer Urban Land Infrastructure Limited Vs. Union of India, (2019) 8 SCC 416, holding that the remedies that available to an allottee of the flat under the Consumer Protection Act, 1986, Real Estate (Regulation and Development) Act, 2016 and Insolvency and Bankruptcy Code, 2016 are concurrent. Imperia Structures Ltd.  Vs. Anil Patni, (2020) 10 SCC 783, holding that a choice or discretion is given to an allottee to initiate proceeding either under the Consumer Protection Act, 1986 or under Real Estate (Regulation and Development) Act, 2016. Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, holding that an allottee may elect or opt for one out of the remedies provided by law for redressal of its injury or grievance. An election of remedy arises when two concurrent remedies are available and the aggrieved person chooses to exercise one, in which event he loses his right to simultaneously exercise the other for the same cause of action. Experion Developers Pvt. Ltd. Versus Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, holding that when statutes provides more than one remedial fora for effectuating a right or to enforce a duty/obligation, it is feature of remedial choice offered by the State for an affective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for the courts to harmonize the provisions in a constructive manner.

7.      We have considered the arguments of the counsel for the parties and examined the record. Intentional exercise of a choice between the alternatives bars the persons making the choice from the benefit of the one not selected on the principle of ‘estoppel by election’. The doctrine of ‘estoppel by election’ has been dealt with in Halsbury’s Law of England as ‘estoppel by record’ and ‘estoppel in pais’ as a party, cannot, after taking advantage under an order be heard to say that it is invalid and ask to set it aside. The doctrine of ‘estoppel by election’ in matter of remedies has been recognized where there are two or more concurrent remedies are available to the litigant at the time of election of remedy, in A.P. State Financial Corporation Vs. M/s. Gar Re-Rolling Mills, (1994) 2 SCC 647, Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (paragraph-37.5) and Vodafone Idea Cellular Ltd. Vs. Ajay Kumar, (2022) 6 SCC 496 (paragraph-25), holding that an allottee may elect or opt for one out of the remedies provided by law for redressal of its injury or grievance. An election of remedy arises when two concurrent remedies are available and the aggrieved party chooses to exercise one, in which event he loses his right to simultaneously exercise the other for the same cause of action.

8.      The complainant himself relied upon judgment of Supreme Court in Pioneer Urban Land Infrastructure Limited Vs. Union of India, (2019) 8 SCC 416, holding that the remedies that available to an allottee of the flat under the Consumer Protection Act, 1986, Real Estate (Regulation and Development) Act, 2016 and Insolvency and Bankruptcy Code, 2016 are concurrent. This judgment has been followed in Imperia Structures Ltd.  Vs. Anil Patni, (2020) 10 SCC 783 and Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241.

9.      However, there can be no estoppel against statute. The question arises as to whether the expression “without prejudice to any other remedy available” as used in Section 18 of the RERA, permits the complainant to avail remedy under the Consumer Protection Act, 2019, which is in addition and not in derogation of any other law, in spite of the fact that he is pursuing his remedy on same issue under the RERA. Section 18 is a substantive provision of law, which protects ‘any other remedy available’ to an allottee of the flat/house, apart from the seeking refund with interest. For enforcement of such remedy, a complaint has to file complaint under Section 31 of the RERA. Section 31 of the RERA does not contain any such expression as contained under Section 31 of State Financial Corporation Act, 1951. The counsel for the complainant relied upon Experion Developers Pvt. Ltd. Versus Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, holding that when statutes provides more than one remedial fora for effectuating a right or to enforce a duty/obligation, it is feature of remedial choice offered by the State for an affective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for the courts to harmonize the provisions in a constructive manner.

10.    In this case ‘estoppel by election’ was not in issue nor any precedent has been laid down in this respect. In order to avoid multiplicity of proceedings and contradictory judgments on same issue between the same parties, estoppel by election of remedy has to be applied. Admittedly the complainant filed Complaint Nos.CC006000000193791 and CC006000000193793 on 21.08.2020, before Maharashtra Real Estate Regulatory Authority, seeking the relief of refund, which were dismissed on 27.06.2022. The complainant has filed appeals before appellate authority from the order of Maharashtra Real Estate Regulatory Authority dated 27.06.2022, which are pending. Therefore, the present complaint is barred on estoppel by election of remedy and is liable to be dismissed as not maintainable.

ORDER

In view of the aforesaid discussions, the complaint is dismissed as barred on principles of ‘estoppel by election’ of remedy and not maintainable.