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I.A. No. 464 of 2021 (dismissal of complaint)

1.       This is an application filed by the opposite party builder co. seeking dismissal of the complaint, essentially on two grounds:

one: abuse of the process of law by the complainant real estate co.; and

two: the complainant real estate co. is not a consumer within the meaning of Section 2(1)(d) of the Act 1986 (corresponding Section 2(7) of the Act 2019) [the CP Act].

2.       In respect of the first question, re abuse of the process of law, learned counsel for the opposite party submits that the complainant filed the instant consumer complaint no. 2359 of 2017 before this Commission on 11.08.2017. Subsequently it also filed complaint no. 1431 of 2018 before the Real Estate Regulatory Authority (RERA) on the same cause of action. The opposite party too filed complaint no. 903 of 2019 before the RERA. The RERA decided both complaints together and made its Order dated 12.12.2019, against which Order the complainant has filed appeal no. 211 of 2020 with the Real Estate Appellate Tribunal (REAT) wherein notice has been issued and the appeal is pending.

3.       Learned counsel for the opposite parties further submits that a perusal of the respective prayers made before this Commission and before the RERA shows that their essence is the same, and they have been filed on the same cause of action.

4.       Here, for reference, the respective prayer clauses in the complaint no. 2359 of 2017 dated 11.08.2017 before this Commission and in the complaint no. 1431 of 2018 dated 12.11.2018 filed before the RERA are reproduced below:

prayer clause in C.C. No. 2359 of 2017 before this Commission:

1.   Direct the Opposite Party to pay a sum of INR 15,94,62,648/- (Rupees Fifteen Crores Ninety Four Lacs Sixty Two Thousand Six Hundred Fourty Eight Only), as total amount to all the complainants along with pendenlite and future interest @24% per annum, till the actual realization of the amount;

2.   Direct the Opposite Party to pay a sum of INR 3,68,85,802/- (Rupees Three Crore Sixty Eight Lacs Eighty Five Thousand Eight Hundred and Two Only) paid by the complainant towards bank charges (including interest) as on 31.07.2017 for the loan availed from PNB Housing Finance Ltd.

3.    Direct the Opposite Party to pay a sum total of Rs. 10,00,000/- (Rs. Ten Lacs Only) as compensation and damages for the mental agony, harassment and opportunity loss and also pay Rs. 2,50,000/- (Rs. Two Lacs Fifty Thousand Only) as a litigation cost to the complainants.

4.   Pass any other such order(s), as this Hon’ble Court deems fit and proper in the facts and circumstances of the case.

prayer clause in complaint no. 1431 of 2018 before the RERA:

(i). Direct the respondents to pay a sum of INR 15,94,62,648/- (Rupees Fifteen Crores Ninety Four Lacs Sixty Two Thousand Six Hundred Forty Eight Only) alongwith pendenlite and future interest as per prescribed rate of interest, till the actual realization of the amount.

(ii)  Direct the respondents to pay a sum of INR 4,65,01,780 (Rupees Four Crore Sixty Five Lacs One Thousand Seven Hundred Eighty Only) paid by the complainant towards bank charges (including interest) as on 31.10.2018 for the loan availed from PNB Housing Finance Ltd.m of est as per prescribed rate of interest, till the actual realization of the amount.

(iii). Pass any other such order(s), as this Hon’ble Authority deems fit and proper in the facts and circumstances of the case.

6.) INTERIM ORDER, IF PRAYED FOR:

(i)   That the Hon’ble Authority may kindly direct to respondents to pay a sum of INR 4,65,01,780/- (Rupees Four Crore Sixty Five Lacs One Thousand Seven Hundred Eighty Only) paid by the complainant towards bank charges (including interest) as on 31.10.2018, because the complainant has to bear the financial burden of paying the monthly instalments of the housing loan availed from PNB Housing Finance Ltd. every month and is facing a great difficulty in regularly paying the EMI’s as the amount paid to the respondents are struck and yielding no result.

5.       Learned counsel for the opposite parties draws our attention to the principle of law contained in Section 10 of the CPC and argues that concomitant proceedings in two different tribunals of competent jurisdiction seeking similar kind of relief with regard to same cause of action are unreasonable, unjustified and legally impermissible.

He also draws our attention to the principle of law contained in Section 11 of the CPC and argues that when the matter in issue has already been heard and finally decided by the RERA, it is still more unreasonable, unjustified and legally impermissible for this Commission to continue with the proceedings before it.

6.       Here, for reference, the substantial and substantive principles of law contained in Section 10 and Section 11 of the CPC are reproduced below:

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.

Section 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 raised, and has been heard and finally decided by such Court.

Explanation I.-- The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

7.       Learned counsel for the opposite parties argues that initiating subsequent proceedings before the RERA without intimating this Commission, much less than seeking its permission, and without withdrawing its complaint before this Commission, and then still continuing with its complaint before this Commission when the matter in issue on the same cause of action between the same parties has been heard and finally decided by the RERA is clear abuse of the process of the law.

Certain case laws have also been referred to including the judgment of Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors (2021) 3 SCC 241 and it has been submitted that in view of the law espoused by the Hon’ble Apex Court the subject matter of the complaint could be pursued only in one forum and not in both at the same time.

8.       In rebuttal learned counsel for the complainant argues that except for the provisions specifically specified in the CP Act itself, the CPC is not applicable in proceedings under the CP Act and as such the principles of law contained in Section 10 and Section 11 of the CPC are not applicable in proceedings under the CP Act.

Learned counsel further argues that the jurisdiction of this Commission under the CP Act and of the RERA under the RERA Act are concurrent and a consumer / complainant is free to invoke both fora simultaneously.

Submission is that the complainant cannot be forced to withdraw the complaint filed under CP Act as it has a right to pursue both proceedings in the forums of concurrent jurisdiction at the same time for the same relief.

In this regard learned counsel refers to the judgment of Hon’ble Supreme Court in Imperia Structures Ltd. vs. Anil Patni & Anr. (2020) 10 SCC 783. She draws specific attention to paras 31 and 32 thereof to support her contention. The said paras read as below: 

31.       Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.

32.       Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under the said Section is “without prejudice to any other remedy available”. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.

9.       We have considered the entire matter in the light of the rival arguments made at the bar.

10.     In our considered view, respectfully, the learned counsel for the complainant is not correct in her interpretation of the judgment of Hon’ble Supreme Court given in Imperia Structures Ltd. vs. Anil Patni & Anr. (2020) 10 SCC 783. To our mind, the sum and substance of judgment is that a choice of discretion is available to the consumer / complainant, whether it wishes to initiate proceedings under the CP Act or under the RERA Act. When two remedies are available for the same relief, the party to whom such remedies are available has the option to elect either of them, but it cannot exercise both options simultaneously. We cannot loose sight of the word “or” used by the Hon’ble Apex Court when it observed in para 32 of Imperia Structures Ltd. case that “- - -  a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.” It straightaway connotes that the choice is to elect ‘either’ and not ‘both’.

Concurrent jurisdiction in no manner implies that the party to whom such remedies are available in two competent fora can, after initiating proceedings on the same matter in issue on the same cause of action between the same parties in one competent forum, then concomitantly also initiate proceedings in a second competent forum. It also in no manner implies that if the matter in issue on the same cause of action between the same parties has been heard and finally decided by one competent forum it can still be proceeded with in a second competent forum just because an appeal against such final decision of the one competent forum has been filed.

Reason and logic dictate that if the matter in issue between the same parties is directly and substantially in issue in one competent forum, similar proceedings in a second forum of competent jurisdiction are unreasonable, illogical and untenable.

Reason and logic further dictate that if the mater in issue has been directly and substantially in issue in proceedings between the same parties and has been heard and decided by one competent forum, proceedings in a second or another competent forum are unreasonable, illogical and untenable.

This also draws strength from the substantive and substantial principles of jurisprudence contained in Section 10 res sub judice and Section 11 res judicata of the CPC,  which are fundamental principles of law.

We agree with the learned counsel for the complainant that the CPC, except for the provisions specifically provided for in the CP Act itself, is not per se applicable in proceedings under the CP Act. This, however, does not prohibit or proscribe drawing rationale or strength from the principles of jurisprudence embedded in the provisions of the CPC if found reasonable and logical in the particular facts and circumstances of a case. There is nothing anywhere which specifically prohibits or proscribes using the reasoning or rationale behind certain provisions if so warranted in the particular facts and circumstances of a case. 

If the proposition furthered by the learned counsel is accepted, it would be tantamount to accepting that multiplicity of proceedings in various fora of competent jurisdiction is permissible and also that even if the matter in issue on the same cause of action between the same parties has been heard and decided by one competent forum it can still be proceeded with and got heard and re-decided by a second or another competent forum. 

Such a proposition, if acceded to, is fraught with an undesirable possibility that different fora of similar competence may decide the same issue or issues differently and return contradictory verdicts. Such kind of inconsistency shall necessarily entail corrosion of the legitimacy of institutional authority, and shall also bring down the authenticity of lawfully created institutions, judicial or quasi judicial as they may be. Such institutions are meant to do and have been created to administer justice. The incompatibility of contradictory verdicts shall not only cause insalubrious embarrassment to such institutions, it may also bring forth unforeseen problems in implementation of mutually irreconcilable verdicts of different forums wielding similar jurisdiction or competence. Just as rights and liabilities of men must not be decided unjustly they can also not afford to be decided inconsistently. In such an eventuality the disconcerting question as to which verdict should be allowed to prevail and which should go under shall always remain unresolved as no such forum can claim precedence over another for the reason of having similar authority of jurisdiction or competence to decide such issue. One of the objects and purpose which Sections 10 and 11 of the  CPC  necessarily go to serve is that they avert the possibility of inconsistency of judicial or lawfully pronounced verdicts upon rights and liabilities of litigating parties. The rationale behind the statute is not entirely without a clue or wholly without substance.       

11.     We have discussed the issue of permissibility to use the two fora having  concurrent jurisdiction and its legal feasibility or implications in perspective of CPC provisions to some extent since this aspect was mooted and considered during the course of the arguments. But actually the legal aspect whether concurrent jurisdiction for getting similar kind of relief may be simultaneously invoked or not is no more res integra in view of various clear pronouncements made by the Hon’ble Apex Court in this regard. The Hon’ble Apex Court’s decision given in Imperia Structures Ltd. vs. Anil Patni & Anr. (2020) 10 SCC 783, itself, instead of supporting the submissions made by learned counsel for the complainant, goes to rebut the same. The relevant observations made by Hon’ble Apex Court in paras 32 and 33 have already been quoted before. The Hon’ble Apex Court’s later pronouncement given in the case of Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors (2021) 3 SCC 241 is conclusive on this issue and it may not be even needed to enter into the question whether the rationale behind Section 10 or 11 of the CPC should be brought into application or not. We do not need to quote in extenso from the Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna’s judgment but it shall aptly suffice just to refer to certain observations made in the case:

“37.5. 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 remedies arises when two concurrent remedies are available, and the aggrieved party chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action.”  

In the said case, various other pronouncements given by Hon’ble Apex Court were discussed and the concept of ‘doctrine of election’ was cogitated upon and affirmed. The case of National Insurance Co. Ltd. vs. Mastan was also referred to in para 40 and relevant extracts from this case were quoted. The relevant portion of para 40 of Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna’s judgment may be quoted herein:

“40. In National Insurance Co.  Ltd. v. Mastan, claims for compensation were filed both under the Workmen’s Compensation Act, 1923 and the Motor Vehicles Act, 1988. This Court held that the doctrine of election was incorporated in Section 167 of the Motor Vehicles Act. The relevant extract from the judgment reads as follows:

“23. The “doctrine of election” is a branch of “rule of estoppel”, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, form asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.””

It may be noteworthy that the case of Imperia Structures Ltd. vs. Anil Patni & Anr. was also considered and relied upon by the Hon’ble Apex Court and specific reference to paras 31 and 32 of the case was also made. The view espoused by Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna is conclusive on the point under consideration and does not admit of any ambiguity or controversy.

12.     Learned counsel however argues that in case two fora of competent jurisdiction decide the same matter in issue on the same cause of action between the same parties, the respective orders, even if differing, will not create any unwelcome anomaly. According to the learned counsel, it will be just a normal consequence of concurrently invoking the legally permissible jurisdictions of two competent fora, and Hon’ble Supreme Court may in such cases espouse the law and resolve the anomaly.

We, but, respectfully, find such proposition to be awkwardly unreasonable and unacceptable. As such we do not agree with the appreciation of law submitted by the learned counsel.  

13.     Succinctly and simply put, the crux of the matter is that the complainant filed the instant consumer complaint before this Commission under the CP Act. Then, without intimating this Commission and without withdrawing its complaint from this Commission it filed a complaint before the RERA under the RERA Act. A mere perusal of the respective prayers made before this Commission and the RERA (reproduced in para 4 above) shows that their essence is the same, and they have been filed on the same cause of action.

With regard to the contention that the complainant should not or could not have been stopped to seek redressal under the RERA Act, it may be said that, in such a situation, the present complaint under the CP Act ought to have been withdrawn and the proceedings going on under the CP Act ought to have been abandoned.

14.     Initiating proceedings before the RERA when the matter in issue was directly and substantially in issue in a previously instituted case between the same parties before this Commission was per se unreasonable, illogical and untenable as well as discountenanced by the spirt and principle of law contained in Section 10 of the CPC. Such a course as has been adopted is in complete violation of the law as has been laid down by Hon’ble Supreme Court in this regard. Notwithstanding the afore, as the things obtain on date, the matter directly and substantially in issue on the same cause of action between the same parties has already been heard and finally decided by the RERA, and appeal thereagainst filed by the complainant is pending before the REAT. As such the continuation of further proceedings in the instant complaint before this Commission appears to be per se unreasonable, unjustifiable and unsustainable as well as proscribed by the law laid down by Hon’ble Supreme Court in this regard. The spirit and principle of law contained in Section 11 of the CPC also does not approve of such duality of proceeding. Accordingly the further proceedings before this Commission are not maintainable, their continuation shall lead to abuse of the process of law.

15.     Since, as already discussed, the further proceedings in this complaint have been held not maintainable, we do not find any necessity to go into the second question i.e. whether or not the complainant real estate co. is a ‘consumer’ under the CP Act. This question is kept open.

16.     The instant complaint no. 2359 of 2017 before this Commission is returned to the complainant un-adjudicated, with the proceedings undertaken till now to be deemed infructuous.

17.     Here we may add that we find nothing unconscionable in the decision taken in the instant case, as, firstly, abuse of the process of law cannot be sustained, secondly, the complainant is not left remediless, it is pursuing remedy under the RERA Act, and, thirdly, the complainant is a real estate co., equally placed with the opposite party, which is a builder co., the fight is amongst equals, having equal wherewithal (as distinct from an individual consumer, without wherewithal, in an unequal fight with a builder co., with wherewithal).

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