STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Pritish Malik s/o R.S. Malik, r/o House Number 403, Sector 20-A, Chandigarh.
2. Nishi w/o Mr. Pritish Malik, r/o House Number 403, Sector 20-A, Chandigarh.

…Non-Applicants/complainants

V e r s u s

1. Amit Dhiman, Architect-cum-Builder, co-owner of Design Square Studio 11 AM, SCO No.90, Second Floor, Sector 35, Inner Market, Chandigarh.
2. Manjit Kaur, w/o Amit Dhiman, Interior Designer, co-owner of Design Square Studio 11AM, SCO No.90, Second Floor, Sector 35, Inner Market, Chandigarh.

….Applicants/Opposite parties

Present:-     Sh. Rakesh Sobti, Advocate for the non-Applicants/complainants

                   Sh.Pankaj Chandgothia, Advocate for the applicants/opposite parties.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    This application has been filed by the opposite parties under Section 36 of the Consumer Protection Act, 2019 (in short the CPA 2019) for dismissal of main consumer complaint bearing no.52 of 2023 titled as Pritish Malik and another Versus Amit Dhiman and another, at preliminary stage being not maintainable, mainly on two grounds:-

1. Amended consumer complaint has been filed beyond the scope of the order dated 08.06.2023 passed by this Commission in Revision Petition No.21 of 2023 having been filed by the opposite parties.
2. Civil Suit no.CSCJ/556 of 2023 dated 21.03.2023 titled as Amit Dhiman Versus Pritish Malik and Mrs. Nishi Malik is pending between the parties in the court of Komple Dhanjal, CJ (JD), Chandigarh.

Brief scenario of the case:-

2.           Initially, consumer complaint bearing no.275 of 2023 was filed by the present complainants before the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (in short the District Commission),  wherein, on 15.05.2023, notice was issued to the opposite parties for filing written version.
3.           Immediately, thereafter, the opposite parties preferred Revision Petition No.21 of 2023 dated 29.05.2023 before this Commission on the ground that the District Commission lacks pecuniary jurisdiction, which was allowed by this Commission vide order dated 08.06.2023. Relevant part of the said order is reproduced hereunder:-

“……As per office report, service of notice upon the respondents/ complainants has been affected through email on 05.06.2023.

Sh. Rakesh Sobti, Advocate has put in appearance on behalf of the respondents by filing his Vakalatnama, which is taken on record.

After going through the material available on record, we are of the view that since the consideration paid in this case is Rs.70,70,000/-, therefore, this matter exclusively falls within the pecuniary jurisdiction of this Commission instead of District Commission below. As such, the revision petition is allowed. The impugned order dated 15.05.2023 passed by District Commission-II, U.T., Chandigarh is set aside by holding that the District Commission has no pecuniary jurisdiction. Rather the jurisdiction lies with this Commission. As such, Consumer complaint No.275 of 2023 is retained by this Commission. However, we direct the complainant to file amended complaint (through Edaakhil also) with advance copy to the opposite parties and also make good the deficiency of Court Fees within a period of one month from today. List the consumer complaint before this Commission on 10.07.2023, after doing the needful. 

Copy of this order be sent to the parties/Counsel through email/whatsapp.

Copy of this order be sent to the District Commission-II, U.T., Chandigarh for information and necessary action.…….”

4.           In pursuance of the said order dated 08.06.2023, the complainants filed amended consumer complaint bearing no.52 of 2023 before this Commission, which was heard for the first time on 10.07.2023. Copy of said consumer complaint alongwith the documents annexed therewith was supplied to counsel for the opposite parties and he was directed to file reply and evidence/affidavit, if any, on or before 09.08.2023. However, instead of filing reply and evidence/affidavit, to the amended consumer complaint, the opposite parties filed the present application.
5.           We have heard counsel for the contesting parties at length and gone through the material available on the record.
6.           First of all coming to the objection taken by the opposite parties regarding filing of amended consumer complaint and certain documents alongwith the same, it may be stated here that the Consumer Protection Act is a social benefit oriented legislation, which encourages adoption of liberal construction in favour of the consumer. Proceedings before the Consumer Commission are summary in nature and only the limited provisions of Code of Civil Procedure are applicable to it. Furthermore, it is also a settled law that whenever there is a conflict between substantial justice and hyper-technicality then substantial justice should be preferred to avoid defeat for the ends of justice, especially, when no prejudice is caused to the party opposite.
7.           As stated above, the opposite parties had challenged the order dated 15.05.2023 passed by the District Commission in consumer complaint bearing no.275 of 2023 by way of filing Revision Petition  bearing no.21 of 2023, on the ground that the District Commission lacks pecuniary jurisdiction, which was  allowed by this Commission, vide order dated 08.06.2023, in the manner referred to above and, as such, the consumer complaint was retained by this Commission. At the same time, the complainants were directed to file amended consumer complaint, which was filed by them on 20.06.2023.
8.           We have gone through the amended consumer complaint wherein certain documents have been placed in addition to the earlier ones. We are of the considered view that the parties have right to adduce evidence during pendency of the consumer complaint. If certain documents have been added alongwith the amended consumer complaint it will not cause any prejudice to the opposite parties. In this view of the matter, the objection taken by the opposite parties that the amended consumer complaint has been filed beyond the scope of order dated 08.06.2023 is rejected.
9.           Now coming to the pendency of civil suit aforesaid. During the course of arguments, counsel for the opposite parties placed on record copy of Civil Suit no.CSCJ/556 of 2023 dated 21.03.2023, pending before CJ (JD), Chandigarh, wherein, the opposite parties have  sought following reliefs:-

1. “……A decree for specific performance of the construction agreement Annexure P-1 be passed in favour of the Plaintiff and against the defendant alongwith a decree of permanent injunction thereby directing the defendants to allow the plaintiff to carry out the construction work as per annexure C-1 and to make payments accordingly, and do all other acts, deeds and things as may be necessary in this regard;
2. A decree for permanent injunction restraining the defendants from engaging any other person or party apart from the plaintiff his agents for carrying on the construction and incidental work at the demised premises;
3. If the Hon'ble court finds that the plaintiff is not entitled to the relief of specific performance of agreement Annexure P-1, then the suit be decreed for the alternative relief by way of decree for recovery of the amounts found due upon rendition of accounts based upon the valuations by a certified Bill Maker after inspection of the works done and material/items/equipments used/supplied in the ordinary course of business under the construction contract and token damages of Rupees One lakh against the defendants with interest @ 18% till realization of the decree amount, with future interest @ 18% till realization.
4. A decree of declaration against the defendants declaring that the plaintiff is entitled to Lien on the Constructed Property at Plot no. 403, Sector 20 A, Chandigarh and the consumable items/materials lying therein and made and bought for use therein, till the defendants clear all the dues of the plaintiff calculated as per Construction Agreement Annexure P-1;
5. A decree of declaration and injunction directing the defendants to render all the accounts regarding the construction and construction agreement; f. costs be awarded in favour of the plaintiff and against the defendants;
6. Any other relief, which the Hon'ble court deems fit, may please be granted to the plaintiff and against the defendants in the interest of justice.………”

10.           Counsel for the opposite parties placed reliance on the judgment titled as Special Machines, Karnal Vs. Punjab National Bank and Ors. 1 (1991) CPJ 78 (NC) decided by the Hon’ble National Commission, wherein, in para no.29 it was held as under:-

“…..…29. Since a suit instituted by the respondent Bank is already pending before the learned Senior Sub-Judge, Karnal, it is perfectly open to the complainant if so advised to file a counter-claim in which he can agitate all the matters in respect of which he has made the claim for compensation against the Bank in the present complaint-petition. With due-respect, we are not impressed by the argument advanced by the learned Counsel for the complainant that since fairly heavy court fee will have to be paid for such a counter-claim the complainant should be given me opportunity to have recourse to the cheap remedy under the Act and seek an adjudication of the matter from this Commission.…”

11.           On the other hand, counsel for the complainants have placed reliance on following judgments:-

1. M/s Emaar MGF Land Limited Vs Aftab Singh, Law Finder Doc ID#1303589 (Supreme Court)
2. Vodafone Idea Cellular Ltd. Vs Ajay Kumar Agarwal, Civil Appeal No.923 of 2017 decided on 16.02.2022.
3. Yashwant Ram Jadhav Vs Shaukat Hussain Shaikh and anr. FA No.1229 of 2017, decided on 10.11.2017 decided by the Hon’ble National Commission and
4. Arun Khanna Vs Shashi Sharma and Ors. IV (2012) CPJ 38 (NC).

12.           In Yashwant Ram Jadhav’s case (supra), the complainants had entered into agreements for purchase of residential flats, which the opposite parties were to construct. Thereafter, the opposite parties filed civil suit for cancellation of the agreements executed between the parties. It was under those circumstances, held by the Hon’ble National Commission in para no.6 as under:-

13.           Similarly, in Arun Khanna’s case (supra)  the Hon’ble National Commission discussed similar matter and observed in para no.11 to 13 as under:-
    1. Again, in another authority of the Honble Apex Court, reported in E.I.C.M. Exports Ltd. Vs. South Indian Corporation (Agencies) Ltd. & Anr., AIR 2009 SC 3127, para No.9, further supports the case of the respondent, which is reproduced below :-

The word suit has a technical meaning which denotes proceedings instituted under section 9 of the Civil Procedure Code, 1908. All legal proceedings in the country are not suits. There are petitions/ complaints/ applications before various Tribunals or authorities but they are not suits as per Section 9 of the CPC. In our opinion, a complaint before Consumer Forum is not a suit, and hence, the Indian Carriage of Goods by Sea Act, 1925, is not applicable to the facts of the present case and the Consumer Protection Act, 1986, will only be applicable.

Another authority relied upon by the Delhi High Court is Faqir Chand Gulati Vs. Uppal Agencies Private Limited & Anr., (2008) 10 SCC 345. Para 34, of the said judgment is as follows:-

“We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under the Consumer Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant”

Consequently, we find that the revisionist has in vain attempted to kick again the pricks. The revision petition is, therefore, dismissed with costs which are quantified at Rs.10,000/- which be deposited with Consumer Legal Aid Account of this Commission. Its proof be produced before the State Commission on 18.09.2012, when the case will proceed further as per law on merits. Copies be sent to both the parties as well as to the State Commission.….”

14.           We have gone through the said citations at length. In the civil suit aforesaid filed by the opposite parties, cause of action is solely different. In that civil suit, the main relief sought is for decree of permanent injunction thereby directing the complainants to allow the opposite parties to carry out the construction work; restraining the complainants from engaging any other person or party for carrying on the construction and incidental work at the demised premises; and declaration against the complainants declaring that the opposite parties are entitled to Lien on the constructed property at plot no. 403, Sector 20 A, Chandigarh. Whereas, in the instant amended consumer complaint relief has been sought by the complainants  directing the opposite parties to refund the amount of Rs.17,24,895/- received in excess from them alongwith interest @12% p.a. from the date of payment till its realization alongwith compensation for mental agony and harassment etc. 
15.           Even otherwise, as per Section 100 of the CPA 2019, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, keeping in view the facts and circumstances of this case, we are of the considered opinion that the complainants can continue with the consumer complaint bearing no.52 of 2023 independently, inspite of the fact that civil suit aforesaid is pending between the parties. The ratio of law laid down by the Hon’ble National Commission in Arun Kumar (Supra) is fully applicable to the facts of the present case, wherein it was held that the jurisdiction of the consumer forum is not ousted on account of a civil suit having been instituted, even if the subject matter of the said suit is the same agreement which is the foundation of the consumer complaint.
16.           The facts in the case of Special Machines, Karnal’s (supra) reliance whereupon has been placed by counsel for the opposite parties are distinguishable from the facts of the present case and as such no help can be drawn by the opposite parties therefrom.
17.           Resultantly, this application filed by the opposite parties being devoid of merit is dismissed with no order as to cost.  The opposite parties, through their counsel,  have already received notice of the amended consumer complaint on 10.07.2023 and they have been asked to file reply and evidence on or before 09.08.2023 but have failed to do so. However, in the interest of justice, the opposite parties are again directed to file reply and evidence on or before 23.08.2023.
18.           Now to come upon 23.08.2023 for further proceedings in the consumer complaint no.52 of 2023.
19.           Certified copies of this order be sent to the parties, free-of-cost.
20.           Parties be informed about this order passed and the date fixed through their counsel on whatsapp/email/mobile numbers.

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