Per Justice Mr.S.B.Mhase, Hon'ble President:

Heard Adv.Smt.Sunita Potdar at the stage of admission itself.

        This appeal takes an exception to an order passed by Additional District Consumer Disputes Redressal Forum, Mumbai Suburban in complaint no. 351/2004 dated 09/07/2010.  The complaint filed by the complainant has been rejected and the complainant has been directed to file proceedings or suit in appropriate court. 

        This appeal was listed for admission on 26/08/2010 and the State Commission heard this appeal thoroughly.  After hearing the appellant for admission, several queries were raised by the State Commission.  Those queries have arisen in the facts and circumstances under which the present appeal is placed before this State Commission and all these facts are admitted facts so far as appellant/org.complainant is concerned.  Since the legal queries in view of the admitted facts were raised.  Ld.Counsel prayed for time to meet out the queries raised by the State Commission and therefore, appeal was adjourned on 26/08/2010 to 30/08/2010 so that Ld.Counsel for the appellant can prepare herself so as to answer the State Commission.  Thus, we keep on record that whatever we have discussed in subsequent part of this order is being discussed and dealt with by the State Commission after initially disclosing the legal points involved in the appeal and giving an opportunity to Ld.Counsel to prepare herself so as to answer the queries.  This will show that Counsel was not taken by any surpirse but the Counsel was well instructed by the State Commission to answer the points which are being considered by the State Commission in the subsequent part of this order.  Suffice it to say that appropriate opportunity which was required by principle of natural justice was offered to the Counsel before passing the order. 

        Factual matrix under which this appeal arises is as under:

        The complaint no.351/2004 was filed by the complainant/ appellant on 30/08/2004 and it has been decided on 09/07/2010.  Appellant in the present case is the original complainant while the opponents are developers and builders.  Aashiyan-18/B building situated on S.N.Road no.2, Vile-Parle has been constructed by the opponents as a developer.  In the said building the flat no.601 was/is available.  The said flat was to be disposed of by the opponent.  It was agreed between the complainant and opponent that initially the said flat is to be given into possession of complainant on tenancy basis and thereafter, it will be transferred on ownership basis.  Ownership was to be transferred after completion of certain compliances.  We do not elaborate those compliances because those are not relevant for the adjudication in the present case.  However, in view of said negotiations the opponent has given letter dated 19/10/1999 accepting tenancy cum transferable ownership basis.  The complainant states that he has deposited an amount of Rs.50,000/- and Rs.4,000/- was agreed as monthly rental.  It further appears that if the society in which the said flat is located if gives permission to transfer said flat in favour of the opponent and complainant, then said flat would to be transferred for consideration of Rs.60 Lakhs.  The area of said flat was taken as 1270 sq.ft.  The dispute thereafter started between the parties, namely, when the complainant verified the flat, complainant found that the flat is having area of 1079 sq.ft. and not 1270 sq.ft. and thereby, the complainant claimed the reduction in price.  Since the dispute started between the parties, it appears that said so called letter was cancelled by the opponent and therefore, the consumer complaint was filed claiming possession of the flat in question, transfer of flat in question and cancellation of letter dated 04/12/1999 by which letter dated 19/10/1999 was cancelled. 

After the appearance of the opponents and after having heard both the sides on merit, Additional District Consumer Disputes Redressal Forum, Mumbai Suburban came to the conclusion that case involves a complicated question of law and facts and therefore, observed that it would be appropriate for the parties to approach City Civil Court than the Consumer Fora where the matter is required to be disposed of in summary manner and therefore, the order as stated above was passed by the District Consumer Disputes Redressal Forum.  Said order is under challenge.

        Though the facts stated above so far consumer complaint appears to be very simplicitor, those are not so straight because while filing the consumer complaint the earlier litigation which has taken place was disclosed in the complaint.  However, that litigation itself is death knell to the consumer complaint.  Said litigation as stated in complaint  is as follows:

        “ After the dispute started between the parties, the complainant has filed a Civil suit no.1534/2000 before City Civil Court at Bombay.  Said suit was filed on 07/03/2000.  In the said suit the reliefs which were claimed in the complaint were claimed.  In the said suit the complainant/plaintiff had also filed a notice of motion bearing no.1475/2000 claiming certain interim reliefs.  However, after the opponent have appeared in the said suit, the opponent/defendant have raised the objection under Section 9(A) of the Civil Procedure Code and raised issue in respect of jurisdiction and therefore, in the said motion, the City Civil Court framed a issue, “ Whether this court has got pecuniary jurisdiction to entertain and try the present suit?” and motion along with objection was disposed of by order dated 02/04/2001.  City Civil Court has passed an order that, “ Preliminary issue answered  in the negative and plaint in present Suit No.1534/2000 stands returned to the plaintiff to be presented to the Court in which suit should have been instituted, under order 7 rule 10(1) of CPC”.  It is also observed that by the Court even the intimation was given to Adv. Mr.D.T.Gandhi, Advocate for the plaintiff, but he did not file any application to intimate the court where he desire to file the plaint and therefore, notice of motion was ultimately disposed of.  As against this order the complainant/plaintiff filed Appeal from Order  no.793/2001 before Hon’ble High Court, Bombay.  Said Appeal from Order was disposed of by Bench consisting justice Mr.S.J.Vazifdar on 22/04/2004 by passing the following order, “ In that circumstances, the impugned order is upheld.  The Appeal from Order is dismissed.  The Appellants are at liberty to make an application for return of the plaint as per law to the learned Bombay City Civil Court.  All the contentions of both the parties in this regard are kept open. 

        It is further interesting to note that while the first suit was pending, another suit, namely, Long Cause suit no.3060/2000 was filed by the complainant/plaintiff as against the B.M.C. (Bombay Municipal Corporation) making a prayer that completion certification shall not be granted in favour of the opponent.  Further the opponents were not made party to the said suit.  In said suit the notice of motion no.2117/2000 was filed for a direction to the Corporation to not to issue Occupation Certificate (O.C.) for flat no.601.  Said notice of motion is dismissed by order dated 01/02/2003 and said suit is pending.  Under these circumstances, the complaint as stated above was filed before the Additional District Consumer Disputes Redressal Forum, Mumbai Suburban.  The questions which requires consideration are ,namely,

1)   Suits which are pending in the City Civil Court have not been finally disposed of.

2)    Suit in which relief as claimed in the complaint are being prayed is first in point of time and in the said suit, the court has came to the conclusion that the City Civil Court has no jurisdiction to entertain the suit but only finding which has been recorded that City Civil Court has no pecuniary jurisdiction and plaint be returned and presented to the appropriate City Civil Court. 

Since the case is from Bombay island area, the suit will have to be filed to the original side of High Court.  It is to be noted that at this stage that jurisdiction of the City Civil Court is up to only  Rs.50,000/- and since the suit involves claim of specific performance of Rs.60 Lakhs,  the pecuniary jurisdiction of the City Civil suit lies with the High Court and accordingly, order has been passed by the City Civil Court which has been confirmed by single  Judge of High Court as stated in above paragraph.

        After this order has been passed by High Court, the advocate for the complainant/plaintiff- Mrs.S.Poddar filed an application before City Civil Court  for return of plaint with a liberty to present it before appropriate court.  On such application the Judge of City Civil Court has passed an order directing the registry to return the plaint to the plaintiff with a liberty to present the same before appropriate court within period of three weeks from today i.e. 13/06/2004.  The plaintiff to intimate the order within 48 hours of lodging of claim the application of the plaintiff dated 25/06/2004 stands disposed of.  This order was passed on 09/06/2004 and therefore Registrar of the City Civil court returned the plaint to the plaintiff on 14/06/2004.  Thus, above fact shows that the plaint was returned for want of pecuniary jurisdiction of City Civil Court and it was directed that it shall be presented to a court having pecuniary jurisdiction in the matter.  Since we find that the case is from Bombay island area and claim is of specific performance of contract of Rs.60 Lakhs, the original side of High Court, Bombay is the Court where the suit ought to have been filed but it was not so filed.  In stead the consumer complaint has been filed.

        Since we have touched the point of pecuniary jurisdiction, we want to clarify at this stage itself, assuming for sake of argument but without admitting it that consumer Fora have a pecuniary jurisdiction since it involves a subject matter of Rs.60 Lakhs which is observed by City Civil Court and more specifically by the High Court, the complainant should have been filed by the complaint before the State Commission instead the complaint was filed before the District Consumer Disputes Redressal Forum and therefore, basically taking into consideration the pecuniary aspect of the matter, the District Consumer Disputes Redressal Forum had no jurisdiction to entertain the complaint.  Keeping aside this issue for a moment, we will revert back to the main issue, namely, after having accepted the order of return of plaint to be presented to the appropriate court, whether it will be appropriate for the complainant to file the consumer complaint before the Consumer Fora.

        We make reference to Section 3 of Consumer Protection Act, 1986.  Section 3 of Consumer Protection Act, 1986 specifically lays down that, “ 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”.   The short analysis will show that as a result of provision of Consumer Protection Act, 1986 the existing law is not modified and/or is affected by provision of Consumer Protection Act, 1986.  The remedies which are available under the existing law are available to the parties since the Act is not in derogation of the existing law.  However, this Consumer Protection Act, 1986 provides additional remedy to the class of litigants, namely, Consumers.  Therefore, litigants which fall in the category of “Consumer” can avail of all the additional remedies which are provided under Consumer Protection Act, 1986.  Therefore, at a point of moment the consumer has to take decision as to whether he shall select a remedy under the existing law and/or an additional remedy as provided under Consumer Protection Act, 1986.  The consumer has a right of selection, namely, he can select the remedies provided under the Consumer Protection Act, 1986 and it will not be open for other parties to contend that regular remedies of the existing law are available and remedy of Consumer Protection Act, 1986 cannot be followed.  It will be equally the freedom of consumer not to select the remedies under the Consumer Protection Act, 1986 and select a remedy as provided by existing traditional law.  However, this point of selection is available to the consumers at the time of inception, namely, institutions of the lis.  But once having made selection of remedies, he can not go on selecting the multiple remedies as per his sweet will.  If he is allowed to follow multiple remedies, it will create multiplicity in litigation and decision which is not contemplated under any law. 

What is important in the present matter is that when the dispute started between the complainant and opponent sometime in the year 2000, the complainant selected the remedy of filing suit in the City Civil Court.  When it was pointed out to him, City Civil Court though have jurisdiction to entertain the civil matter but has no jurisdiction to entertain the suit of plaintiff being in excess of pecuniary jurisdiction of City Civil Court, the plaint was directed to be returned.  Said order has been confirmed by the High Court, Bombay. Therefore, the only option left out for the complainant/plaintiff is to accept the return of plaint from City Civil Court and to present it to a court which has pecuniary jurisdiction because the remedy of a City Civil Court has been already selected by him and the option being exercised in traditional remedy of the City Civil Court, the second option to select a Consumer Protection Act, 1986 is/was not open to the complainant.  What is interesting to note that in accordance with those order of City Civil Court & High Court the advocate for the complainant made an application to the City Civil Court for returning of plaint so as to file it in appropriate court and said application was granted by judge and the City Civil Court with a direction to the Registrar that the plaint be returned to the plaintiff with a liberty so as to present  it before appropriate court and therefore, after the plaint is returned to the complainant/plaintiff.  Therefore complainant ought to have presented suit before appropriate City Civil Court.  What we emphasis for our purpose is that having once selected City Civil Court and having found that City Civil Court has jurisdiction in the matter, it is not open for the complainant/plaintiff to have a resort to provisions of Consumer Protection Act, 1986 and thereby, approach to the consumer Fora.  What is important to be noted is that if the complainant was desirous of approaching the consumer Fora then he should have made specific application to the City Civil Court seeking specific liberty to approach consumer  be granted by Fora.   Then City Civil Court would be required to consider whether said permission is to be granted or not.  Though it appears to be very technical one, yet it has revenue repercussions so far as transfer of jurisdiction is concerned because if the complainant/plaintiff to present the suit before the original side of High Court, he is required to pay the Court fee upon Rs.60 Lakhs and in order to avoid payment of court fee probably he has opted for consumer For a.  If the return of the plaint is without getting permission of the Civil Court to approach consumer Fora then he cannot file consumer complaint. Whether such permission is to be granted or not is a question which Civil Court could have considered and probably looking to the loss of revenue to the Government having followed the remedies under civil law such permission would not have granted.  Therefore, even an application which has been made by the Ld.Counsel for the complainant, it was made with a liberty to present it appropriate court and not especially to the consumer Fora because under consumer Fora maximum fee which is required to be paid is Rs.4,000/- as against the court fee required for Rs.60Lakhs.  The court fee in City Civil Court would have been more than for Rs.1,15,000/- approximately.  What we emphasize at this stage is that those repercussions were involved for grant of permission to approach consumer Fora when the plaint is to be returned and therefore, the application though made for return of plaint, it was not an application for return of plaint to present it to the Consumer Fora.  In fact, presentation of the plaint to the City Civil Court of a pecuniary jurisdiction and presentation of the complaint with a consumer Fora is a different area, namely, City Civil Court had jurisdiction and on payment of Court fee further proceeding can go on.  But when you want to withdraw the said suit to present it to the consumer Fora though consumer Fora may have jurisdiction, it is an alternate remedy provided by the law and it is not the remedy which parties are following.  Therefore, when a particular traditional remedy is invoked, the normal rule contemplates that most exhaustive remedy once having being followed, should be continued by the parties.  Then question arises whether such party can have liberty to follow the summary remedy by way of alternate remedy and rule is that once the party has followed particular exhaustive remedy, then the party cannot go for summary remedy.  On the contrary, law set out is whenever it is noticed in the consumer complaint that the more complicated issues are involved, the Consumer For a shall restrain itself from deciding such issues and directs the party to go for regular remedies. Therefore, the permission if asked by the present plaintiff to the City Civil Court in view of settled decision of law could not have been granted in his favour so as to approach to the Consumer Fora and therefore, very shrewdly and diplomatically the plaint was accepted as returned and fresh complaint has been presented too in a Consumer Fora and that to a Forum which has no jurisdiction to entertain the complaint.  All these aspects will show that the complainant is not desirous of prosecuting the remedies in accordance with the law but he is simplicitor interested in keeping the suit pending as against the opponent and that too by not by making appropriate payment of court fee etc. to the appropriate courts. 

One more aspect also reflected is that the other suit which was filed by the complainant as against the B.M.C. claiming  that the O.C. should not be issued in favour of the opponent.  In the said suit, in fact, the O.C. is claimed by the builder/developer, who is not opponent in the said suit equally in the present consumer complaint and therefore, unless he gets the O.C., he cannot put somebody in possession of the property.  What is important in the said suit also is that though the reliefs are claimed prima facie against B.M.C., it is really a substantial relief against the opponent, but he has not been made party to the suit again.  The difficulty in  order II rule 2 of Civil Procedure Code will arise because first suit is pending and all the reliefs which are claimed as against the party shall be claimed in one & same, is settled civil law and in order to give go bye to the legal rule the opponent was not made party to the second suit even though this relief is a substantial relief against him. 

At this juncture our dictation is intervened by the Ld.Counsel for the appellant making a statement that second suit was filed because in the first suit the original defendant made a statement that he has already transferred the flat in question. Assuming for a moment that the statement made by the Ld.Counsel is a correct statement, the fact so far as opponent is concerned in that circumstances leads to inference that the proper remedy for the complainant/plaintiff was to add the third party along with BM.C. as defendants in the suit and thereafter, claim relief as against them because it is well settled rule that all the releifs arising from same cause of action shall be clubbed together and shall be included in the same suit.  But as we have demonstrated earlier, the purpose of filing second suit was to get the order of injunction as against the opponent no.2 without joining them as a party in the said suit and therefore, such second suit is filed and pursued and we are told that till today the suit is not withdrawn.

        Let all the facts be as it is.  For the discussion which we made above, we find that there was no liberty granted by the City Civil Court to follow alternate remedy of filing complaint before Consumer Fora  in favour of the complainant/plaintiff and therefore, the complaint itself is not tenable.

        One more aspect is required to be considered that the time which was granted at the time of return of plaint by the City Civil Court was three weeks after the plaint was returned.  The plaint actually was returned on 14/06/2004 and so called complaint has been filed on 30/08/2004.  So, the complaint was not filed after withdrawal of suit within period of three weeks, namely, the time within which the complaint should have been presented.  Assuming for sake of argument that the complainant could have filed the said complaint in view of the liberties granted, it should have been filed within period of three weeks.  Said direction of City Civil Court is not got followed and therefore, complaint is not tenable.

        Ld.Counsel relied upon the judgment reported in 2002 in the matter of Smt.Sisir Kana Guha and others V/s. Ayakar Grihanirman Samabaya Samity Ltd. and another (AIR 2002 CALCUTTA 247) in order to impress upon us that consumer Fora is not a court and therefore, complaint can be filed and the orders passed by City Civil Court cannot be hurdle in entertaining complaint.  What is important to be noted that provisions which have been considered by Hon’ble High Court, Calcultta were the provisions of West Bengal Cooperative Society.  The power to settle the dispute between the members of the society is given to the Registrar and in that light that the Registrar is an arbitrator and not a court.  What we find that ratio reflected from note-D is not applicable in the matters of consumer Fora because Section 13 Sub Section 4 specifically makes it clear that proceedings before the Consumer Fora shall be deemed to be judicial proceedings within meaning of Section 193 of Indian Penal Code for that purpose the chapter 26 of Criminal procedure Code.  

We only observe at this stage that though the District Consumer Redressal Forum are independent quasi judicial authorities, yet it has all the trapping of the court and it is not necessary in this case as to how the consumer Fora has dealt with the matter.  It is suffice to observe that it has trapping of the court and therefore, that judgement is not applicable in the facts and circumstances of the case.

We find that this complainant is making several efforts to circumvent the provisions of law, namely, provisions of Court Fee Act and provisions of Consumer Protection Act, 1986 in order to pay lesser court fee.  If the claim is of Rs.60 Lakhs, he would not have preferred to go to District Consumer Redressal Forum.  Thereby what we find that the remedies which are being followed are followed in vexatious manner as provided under Section 26 of Consumer Protection Act, 1986.  The above discussion will show that the manner in which the vexatious proceeding has been carried out and we do not desire to repeat it again.  We find that appeal is without any substance in view of the complexities of the points which we have decided and also of the view that the points decided by the District Consumer Redressal Forum requires no interference and hence, we dismiss the appeal in limine by imposing cost of Rs.10,000/- to be paid by the appellant.  Hence, we pass the following order:-

                                :-ORDER:-  

1.           Appeal stands dismissed in limine with cost of Rs.10,000/-.

2.           The amount of cost be deposited by the appellant within period of two weeks.  On deposit of this amount, the Registrar is directed to credit this amount in State Consumer Welfare Fund of State of Maharashtra.  If the amount is not paid within period of two weeks as stated, the Registrar shall issue a recovery certificate under Section 25 (3) to the Collector for the recovery of the said amount as against the arrears of land revenue from the complainant/appellant.

3.           Dictated on dais.

4.           Copies of the order herein be furnished to the parties as per rule.