ORDER NO. 9 DT. 11.07.2012

MR. S.COARI, LD. MEMBER

MA-85/2012

          The record is placed today for passing necessary orders in respect of a Misc. Application filed by the OP wherein the OP has prayed for rejection of the petition of complaint being C.C.No. 97/2011 along with a further prayer for staying all further proceedings of the present complaint case and in the alternative, a direction upon the complainant to deposit a sum of Rs. 37,78,242/- along with accrued interest @ 18% per annum from 22.3.11 till deposit of the aforesaid sum.

          The main contention of the Misc. Applicant, in brief, is that previously the complainant filed a complaint case being SC/CC/50 of 2010 against the present Misc. Applicant with a prayer for an order to direct the OP to refund a sum of Rs. 47,33,849/- along with interest @ 18% per annum accrued thereon together with compensation to the tune of Rs. 2,00,000/- and penal damages of Rs. 50,000/-.  According to the Misc. Applicant, subsequently the said complaint case entered into an amicable compromise in terms of a compromise petition entered into by and between the parties, wherein the OP(Misc. Applicant) agreed to refund the consideration paid by the complainant in respect of the flat in question after deducting a sum of Rs. 2,90,000/- to the complainant thereby arriving at a sum of Rs. 37,78,242/- to be refunded by the OP/Misc. Applicant to the complainant.  According to the Misc. Applicant, the amicable compromise was recorded by this Commission as per this Commission’s order dt. 22.3.11 and the complaint case was accordingly disposed of.  It is the further averment of the Misc. Applicant that the Misc. Applicant paid Rs. 37,78,242/- to the complainant on proper receipt.  Subsequently, to the utter surprise of the present Misc. Applicant, the complainant has come up with the present petition of complaint filed against the OP/Misc. Applicant thereby praying for a direction upon the Misc. Applicant to refund Rs. 2,90,000/- out of Rs. 40,68,242/- and interest @ 18% per annum compounded quarterly amounting to Rs. 30,26,944/- as on 22.3.11 and compensation to the tune of Rs. 30,00,000/-.  It is the further case of the Misc. Applicant that the present complaint has been filed after suppression of the material facts.  The Misc. Application is not maintainable under the law and hence, the Misc. Application.

          The Complainant/OP is contesting the present Misc. Application by filing a written objection thereby denying all the material averments mentioned in the Misc. Application contending inter alia that the complainant had to compromise the previous petition of complaint under threat and coercion and as such, there is no legal bar in instituting the subsequent/present petition of complaint for proper redressal.  It is the further contention of the complainant that police authority was duly informed as regards the coercion and threat applied upon the complainant at the instance of the OP for the purpose of obtaining a compromise and that the effect for such compromise obtained under threat and coercion has got no bearing in the present petition of complaint.  The Misc. Application having been filed by the OP on all false and fictitious grounds the same is liable to be dismissed.

          Case laws referred on behalf of the Misc. Applicant :-

1.                 2011 CPJ 42 (NC)

2.                 III (2006) CPJ 67 (NC)

3.                 IV (2006) CPJ 369

4.                 III (2006) CPJ 73 (NC)

5.                 II 2012 CPJ 210 (NC)

Case law referred by the Complainant/OP :-

     6 SCC 400/[1999]

DECISION WITH REASONS

     At the time of hearing it has been submitted on behalf of the Complainant/OP that the Misc. Application having been filed after suppression of material facts the same is not at all maintainable under the law.  According to the Ld. Advocate for the complainant, when the complainant has placed all the cards before this Commission in support of the subsequent petition of complaint, inasmuch as, when the complainant has submitted that a complaint was lodged with local police in respect of threatening meted out to the complainant at the instance of the OP/Misc. Applicant, there should not be any iota of evidence how the complainant had to cow down to the threatening at the instance of the OP/Misc. Applicant and enter into the compromise deal.  While elaborating on this point the Ld. Advocate for the Complainant has submitted before us that the previous compromise is the result of coercive bargaining at the instance of the OP/Misc. Applicant.  While citing the decision reported in 6 SCC 400/[1999] the Ld. Advocate for the complainant has also submitted before us that the complainant should be given a chance to establish the case of coercion through regular trial and on this ground the Misc. Application should be rejected.

          We have duly considered the submissions so put forward on behalf of the complainant and also have gone through the materials on record including the different citations relied upon by the Misc. Applicant and find that in this case the Misc. Applicant has come up with a case to the effect that even after entering into an amicable compromise the complainant has once again instituted a petition of complaint thereby seeking further relief from the Misc. Applicant without any rhyme and reason.  According to the Ld. Advocate for the Misc. Applicant, the subsequent petition of complaint (the present complaint) has got no legal basis and is not maintainable on the ground of constructive res judicata.  Besides that, according to the Ld. Advocate for the Misc. Applicant, once an amicable settlement was arrived at by the parties thereby disposing of the previous petition of complaint, the self-same cause of action is not permissible to be reopened and the complainant having done so by filing a subsequent petition of complaint, the subsequent petition of complaint is not maintainable under the law.  We find much substance in the submission so put forward on behalf of the Misc. Applicant and after going through the decisions relied upon by the Misc. Applicant we are of the considered opinion that there is merit in the present Misc. Application and the same should be allowed.  In the result, the Misc. Application succeeds.

     Hence, it is ORDERED that the Misc. Application stands allowed on contest but without any order as to cost.  The petition of complaint stands dismissed being not maintainable.