Complainant                             :    Adv. Shri. Sharma              

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Per :  Hon’ble President, Smt. Pranali Sawant

 

 

[1]                    Initially the present complaint was filed before the Pune District Consumer Disputes Redressal Forum bearing Complaint No. : PDF/184/2005. After the order passed by the Hon’ble Consumer Disputes Redressal Commission, Maharashtra State, Mumbai, this matter was transferred from Pune District Consumer Disputes Redressal Forum to Additional Pune District Consumer Disputes Redressal Forum bearing Complaint No. : APDF/134/08.

 

 

[2]                    This complaint has been filed by the Complainant against Gopi Erectors for not executing the conveyance deed in favour of the Complainant society. The facts in brief which give rise to the present complaint are as follows :-

 

[3]                    The Complainant, Ashoka Mall Premises Co-operative Society is a society registered on 13/2/2002. After its registration the Complainant issued a notice to the Opponent M/s. Gopi Erectors to execute the conveyance in favour of the said society. However the Opponent failed to do so.   The Complainant then requested the Opponent on several occasions to fulfill its legal obligation of executing the conveyance. However the Opponent did not pay any heed to these requests. Hence the Complainant has filed the present complaint requesting the Forum to direct the Opponent for executing conveyance deed in favour of the Complainant society and also compensate them for the cost of litigation.         The Complainant has filed an affidavit of the authorized representative of the society in support of the complaint as well as few other documents in support of its contentions.

 

[4]                    On receipt of the notice the Opponent filed its written version through an Advocate. The Opponent has raised the preliminary objection in respect of the jurisdiction of the Forum. It has been contended by the Opponent that the Complainant has filed consumer complaint No. 100/2003 before the Hon’ble National Commission and as the same is still pending, this Forum has no jurisdiction to try the present complaint. The Opponent has contended that the present application is barred by limitation. The Opponent states in its say that part conveyance is already executed by them and they are ready and willing to execute the deed of apartment. However the Complainant has not fulfilled its part of compliance and hence is not entitled to make any grievance in this respect. The Opponent has denied all the grievances of the Complainant and has contended that since the disputed project is a commercial project the said complaint cannot be filed by the society as consumer. The Opponent has prayed further dismissal of the complaint with cost. The Opponent has filed affidavit of authorized signatory and 18 documents vide exh. 19-A in support of its say. 

 

[5]                    After filing of say by the Opponent, Complainant filed its rejoinder along with few documents. Thereafter the Complainant filed written notes of arguments vide exh.22 and the Opponent filed its arguments vide exh. 23. Thereafter Adv. Mr. Sharma was heard on behalf of the Complainant and Mr. Nerkar on behalf of the Opponent and then the matter was posted for judgment.

 

[6]                    On perusal of the complaint, it can be seen that the present complaint has been filed with a single prayer for execution of conveyance deed in favour of the Complainant society. The Opponent has resisted this complaint on following grounds :-

 

1.      Consumer complaint between the same parties in respect of the same

 

2.      The present complaint is barred by the law of limitation.   

3.      Since the disputed project is a commercial project the Complainant is not a consumer.

 

[7]                    On perusal of the defense of the Opponent in our opinion, the defense mentioned in clause (1) goes to the root of the matter and hence it is discussed first.   The Opponent has come with a specific case that the consumer Complaint No. 100/2003 is pending before the Hon’ble National Commission between the same parties in respect of the same project. The Opponent has filed the copy of petition which is pending before the Hon’ble National Commission. It can be seen from the petition that the complaint was filed by the Complainant against the Opponent before the Hon’ble National Commission way back in 2003. However for the reasons best known to the Complainant this fact is nowhere mentioned in the complaint application filed before this Forum in the year 2005. There is no satisfactory explanation coming from the Complainant as to why this fact was not mentioned in the complaint application. There is also no satisfactory explanation from the Complainant as to why the grievance in respect of the conveyance was not raised before the Hon’ble National Commission. When the original petition is pending before the Hon’ble National Commission and when both the parties have adduced their entire evidence before the Hon’ble National Commission, there is no justification why the Complainant should choose to omit making grievance in respect of conveyance before the Hon’ble National Commission. In our opinion, the Complainant is not justified in making its prayers in piece meal before two different forums. When the Hon’ble National Commission is seized of the matter it was mandatory for the Complainant to raise its grievance in respect of the conveyance before the Hon’ble National Commission. The act of the Complainant of filing separate application before this Forum for getting the conveyance executed is illegal and unjustified. We have been informed by the parties that the matter is still at the hearing stage before the Hon’ble National Commission. In such a situation, in our opinion we cannot entertain the complaint filed by the society in respect of conveyance. The Complainant has to raise one and all the grievances before the Hon’ble National Commission.   Since the matter is subjudiced before the Hon’ble National Commission, we are not inclined to grant any relief to the Complainant. Hence the application is dismissed. In view of the findings and observations of the Forum, we proceed to pass the following order :-

 

(i)                  The complaint stands dismissed.

 

(ii)      No order as to costs.

 

(ii)                Certified copies of this order be