Today is fixed for hearing argument.

Heard argument in full.

Judgment would be delivered in course of this day.

This order is arising out of the MA being no-12/2022 filed by the OP-1, 2 and 3 in the Consumer complaint being no-82/2020 challenging the maintainability of the complaint.

It is stated in the application that the Complainants have filed the present complaint praying for reliefs i.e. a) an order directing the OPs to make registration of the suit flat to the consumers, b) an order directing the OP-1-3 to pay compensation of Rs.50,000/- for mental agony and harassment to the Complainants, c) cost of the litigation and d) pass such further relief as your Honor may deem fit and proper.The OP-1-3 are contesting the present complaint by filing written version and the Complainant-1 has filed his evidence on affidavit. From the written version of these OPs it will be revealed that these OPs being Plaintiffs have filed a Civil Suit before the 1^st Court of Civil Judge, Senior Division at Barasat being T.S. No-317/2019 against the OP-4 being the Defendant no-1 therein and the Complainants herein, being the Defendants no-2 and 3 therein praying for declaration that the alleged Development Agreement and the Power of Attorney both executed on 03.06.2013 to be declared as void, illegal, in-operative and not bindings on the Plaintiffs and for other reliefs as stated therein. It is further stated that the Complainants and the OP-4 of the present complaint being the defendants in the said Civil Suit has made their appearance on 28.06.2019 and they are completely aware of the Civil Suit but intentionally suppressed the same in the present complaint.

It is an admitted fact that the present Complainants prior to filing of the present complaint case filed a consumer complaint before the Ld. DCDRF, Barasat being no-CC/316/2018 against these OPs praying for reliefs i.e. a) an order directing the OPs to hand over the possession of the suit flat to the consumers, b) an order directing the OP-1-3 to pay compensation of Rs.50,000/- for mental agony and harassment to the Complainants, c) cost of litigation and d) pass further relief as your Honor may deem fit and proper.

The present OP-1-3 have also entered appearance in the said CC/316/2018 and contested the complaint by filing written version. There are some pertinent factors of the said proceeding as follows:-

1. The OP-1-3 appeared on 15.01.2019 and the OP-4 appeared on 07.01.2019 and also filed an application being no-MA-12/2019 for settlement.
2. The MA-12/2019 was taken up for hearing and disposed of on 15.01.2019 allowing the OP-4 to give delivery of possession of the subject flat to the Complainants on receipt of balance consideration money within 15 days from the date of the order and the OP-4 was further given liberty to seek police help from the local police station if the OP-1-3 will create disturbance/obstruction at the time of giving them possession.
3. The CC/316/2018 is still pending before the Ld. DCDRF, Barasat awaiting order from the Hon’ble SCDRC for transfer of the said complaint from the Barasat Commission (as amended) to this Ld. Commission at Rajarhat (New Town) on the ground that the territorial jurisdiction of the said complaint falls under the jurisdiction of this Ld. Commission. The last date of the said complaint was on 15.01.2020.
4. During pendency of the said complaint being no-316/2018 the Complainants have filed the present complaint being no-CC/82/2020 on 18.02.2020 against the same OPs based on the same cause of action relating to the same dispute.

From the both petition of complaint i.e. CC/316/2018 & CC/82/2020 the Ld. Commission will find that the cause of action of both the case arose admittedly on 03.05.2017 and the suit property referred in both the cases are same and identical and the nature of the dispute is also same and identical and the parties are also the same. Therefore it can safely be said that the present suit is barred by the principles of Resjudicata. The Complainants in the present complaint cannot get any relief as the same is strictly barred by the provisions as down in Order II Rule 2 of the CPC. It is general Principle of Law that a suit or proceeding should include the whole claim. It has been categorically stated in Order II Rule 2 (3) of the CPC that if a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. It has also been categorically stated in Order II Rule 2 (2) of the CPC that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Though the aforementioned provision of the CPC is not mentioned in the Consumer Protection Act, but the provision will apply as a Principle of Justice, Equity and good conscience, as also in the interest of Natural Justice. Therefore as the present Complainants did not pray for the whole claim intentionally and deliberately in respect of the same cause of action and omits to pray for registration in the previous complaint being no-316/2018 as the Complainants cannot be allowed to pray such relief as sought for in the present complaint. The Larger Bench of the Hon’ble NCDRC has been pleased to pass an order to the extent that in the same cause of action more than one complaint cannot stand.

No party/parties can be permitted to harass the OPs twice for the same cause of action and such type of conduct should not be indulged by the Ld. Commission and such type of proceeding should be thrown out at the very threshold.

The OP-1-3 have further contended that there is deep rooted conspiracy going on by and between the Complainants and the OP-4 and in collusion and connivance with each other filed this complaint to deprive the OP-1-3 being the land owners from getting their legitimate claim and right and for this reason Civil Suit for declaration is pending before the 1^st Court of Civil Judge, Senior Division being T.S. no-317/2019 is pending against the Complainants and the OP-4. The said suit cannot be adjudicated upon by the Ld. Consumer Commission as it needs extensive evidence. Therefore considering the aforesaid facts and circumstances the OP-1-3 have prayed for dismissal of the present complaint holding not maintainable in the eye of Law.

The Complainants have contested the MA being no-12/2022 by filing written objection contending that the Complainants booked the flat on the 2^nd floor in the proposed building. The father of the OP-2 and 3 and the husband of the OP-1 suddenly expired leaving behind his wife and two sons as his legal heirs. After his death the OPs-1-3 have inherited the property. The OP-4 requested the OP-1-3 to execute fresh power of attorney in him favour. Though the said OPs have assured him, but to no effect. The OP-1-3 being the greedy persons, want to encroach the entire building and for that reason they are not executing the fresh power of attorney in favour of the OP-4. As and when the OP-1-3 got information that the OP-4 filed the aforesaid Title Suit against them and the Complainants filed the consumer complaint against the OP-1-3 praying for hand over the possession of the flat being CC/316/2018.

On several occasions the OP-4 requested the OP-1 and 2 not to do any illegal activities on any portion of the suit property, the said OPs did not pay any heed to his request. The Complainants have repeatedly requested the OPs to hand over the possession in the flat after completion of construction work in all respect, but the OP-1-3 did not bother to pay any heed to their request and hence being dissatisfied with the action of the OPs the Complainants have approached before the Ld. DCDRF, Barasat by filing the consumer complaint being no-CC/316/2018 praying for handing over the possession in the said flat and the OP-4 has already handed over the possession to the Complainants in the said flat as per the order of the Ld. DCDRF, Barasat and issued possession after receiving the entire consideration amount from the Complainants. As the OP-1-3 have raised obstruction at the time of providing the possession in the flat to the Complainants, the OP-4 had sought for police help as per the direction of the Ld. DCDRF and with the police help possession was given to the Complainants by the OP-4. Inspite of this the OP-1-3 are still harassing the Complainants and raised objection not to execute and register the sale deed in favour of the Complainants in respect of the suit flat.

That the cause of action of the two cases are different as the earlier cause of action arose for not handing over possession of the flat and subsequently the possession was given to the Complainants as per the direction of the Ld. DCDRF, Barasat with the help of police. The OP-4 is ready for execution and registration of the sale deed in favour of the Complainants, but the OP-1-3 are denying for registration of the sale in respect of the flat in favour of the Complainants. The OP-1-3 are under the obligation to register the sale deed on the ground that the agreement for sale was executed by and between the Complainants, OP-4, and the husband of the OP-1 and the father of the OP-2 and 3, since deceased. After the death of the husband of the OP-1 and the father of the OP-2 and the present OP-1-3 are creating disturbances in all respect. In the meantime the territorial jurisdiction of the Ld. DCDRF, Barasat has been changed after establishment of this ld. Commission and the Complainants have filed the instant complaint before this Ld. Commission with new cause of action. The Ops-1-3 have stated in their written version that the Title Suit being no-317/2019 has been filed before the ld. 1^st Civil Judge (Senior Division), Barasat for cancellation of the alleged developer’s agreement dated 03.06.2013, which is an afterthought process, while the OP-1-3 knew that a consumer case being no-316/2018 has been filed against the OP-1-3 along with the OP-4 before the Ld. DCDRF, Barasat for getting possession of the suit flat on the basis of the said development agreement dated 03.06.2013. Moreover the OP-1-3 did not raise any objection in their written version regarding the matter, which has been raised in the MA subsequently, which is not maintainable and liable to be rejected. The Complainants have accordingly prayed for dismissal of the MA-12/2022.

The OP-4 has contested the MA being no-12/2022 by filing written objection contending that the Complainants booked the flat on the 2^nd floor in the proposed building. The father of the OP-2 and 3 and the husband of the OP-1 suddenly expired leaving behind his wife and two sons as his legal heirs. After his death the OPs-1-3 have inherited the property. The OP-4 requested the OP-1-3 to execute fresh power of attorney in him favour. Though the said OPs have assured him, but to no effect. The OP-4 filed a Title Suit being no-TS/432/2018 before the Ld. 1st Civil Judge (Junior Division), Barasat against the OP-1-3 for getting order for executing fresh power of attorney by the said OPs.The OP-1-3 being the greedy persons want to encroach the entire building and for that reason they are not executing the fresh power of attorney in favour of the OP-4. As and when the OP-1-3 got information that the OP-4 filed the aforesaid Title Suit against them and the Complainants filed the consumer complaint against the OP-1-3 praying for hand over the possession of the flat being CC/316/2018, the OP-1-3 filed another Title Suit being no-TS/317/2019 against the OP-4 and also filed an application praying for an ad-interim injunction. In the said TS case the Ld. Court was pleased to pass an order stating therein that-

“The Suit for declaration, cancellation and permanent injunction is filed. It appears that the cause of action of this suit arose on 13.09.2018 for the first time but the instant suit was filed on 28.05.2019 after lapse of almost eight months. There has been considerable delay in filing the instant suit which shows that there is no grave urgency in the instant case............. that the prayer for ad-interim injunction is refused at this stage.”

It is crystal clear that the OP-1-3 knew that the OP-4 filed a Title Suit against them and the OP-1-3 filed the Title Suit against the OP-4 only with a view to drag the consumer complaint and it is the afterthought of the OP-1-3. On several occasions the OP-4 requested the OP-1 and 2 not to do any illegal activities on any portion of the suit property, the said OPs did not pay any heed to his request. The Complainants have repeatedly requested the OPs to hand over the possession in the flat after completion of construction work in all respect, but the OP-1-3 did not bother to pay any heed to their request and hence being dissatisfied with the action of the OPs the Complainants have approached before the Ld. DCDRF, Barasat by filing the consumer complaint being no-CC/316/2018 praying for hand over the possession in the said flat and the OP-4 has already handed over the possession to the Complainants in the said flat as per the order of the Ld. DCDRF, Barasat and issued possession after receiving the entire consideration amount from the Complainants. As the OP-1-3 have raised obstruction at the time of providing the possession in the flat to the Complainants, the OP-4 had sought for police help as per the direction of the Ld. DCDRF and with the police help possession was given to the Complainants by the OP-4. Inspite of this the OP-1-3 are still harassing the Complainants and raised objection not to execute and register the sale deed in favour of the Complainants in respect of the suit flat.

That the cause of action of the two cases are different as the earlier cause of action arose for not handing over possession of the flat and subsequently the possession was given to the Complainants as per the direction of the Ld. DCDRF, Barasat with the help of police. The OP-4 is ready for execution and registration of the sale deed in favour of the Complainants, but the OP-1-3 are denying for registration of the sale in respect of the flat in favour of the Complainants. The OP-4 is praying before the Ld. Commission so that he can register the deed of conveyance in favour of the Complainants in respect of the suit flat. The OP-1-3 are under the obligation to register the sale deed on the ground that the agreement for sale was executed by and between the Complainants, OP-4, and the husband of the OP-1 and the father of the OP-2 and 3, since deceased. After the death of the husband of the OP-1 and the father of the OP-2 and the present OP-1-3 are creating disturbances in all respect. Accordingly prayer is made by the OP-4 for dismissal of the instant MA being no-12/2022 with cost and to give him liberty for execution and registration of the sale deed in favour of the Complainant in respect the suit flat.

We have carefully perused the content of the application being no-MA-12/2022 filed by the OP-1-3 and written objection thereto filed by the Complainant and the OP-4 and heard argument at length advanced by the Ld. Counsel for the parties. We have also gone through the papers and documents filed by the OP-1-3 being the Applicant of this application.

It is seen by us that in the application the OP-1-3 have stated that the Complainants have filed the present complaint praying for reliefs i.e.

A) An order directing the OPs to make registration of the suit flat to the Complainants,

 B) An order directing the OP-1-3 to pay compensation of Rs.50,000/- for mental agony and harassment to the Complainants, 

C) To pay cost of the litigation and

D) To pass such further relief as your Honor may deem fit and proper.

The OP-1-3 are contesting the present complaint by filing written version and the Complainant-1 has filed his evidence on affidavit. From the written version of these OPs it will be revealed that these OPs being Plaintiffs have filed a Civil Suit before the 1^st Court of Civil Judge, Senior Division at Barasat being T.S. No-317/2019 against the OP-4 being the Defendant no-1 therein and the Complainants herein, being the Defendants no-2 and 3 therein praying for declaration that the alleged Development Agreement and the Power of Attorney both executed on 03.06.2013 to be declared as void, illegal, in-operative and not bindings on the Plaintiffs and for other reliefs as stated therein. It is further stated that the Complainants and the OP-4 of the present complaint being the defendants in the said Civil Suit has made their appearance on 28.06.2019 and they are completely aware of the Civil Suit but intentionally suppressed the same in the present complaint.

In support of the above contention the OP-1-3 have submitted the copy of the order sheets of the said Civil Suit being no-T.S.317/2019, from where it is evident that the said suit is still pending before the 1^st Court, Civil Judge, Senior Division, Barasat. Admittedly in the said Civil Suit the present OP-4 has been made party as defendant-1 and the Complainants as the Defendants-2 and 3. Therefore it is clear to us that during pendency of the said Civil Suit the present complaint has been filed by the Complainants before this Ld. Commission, but within the four corners of the petition of complaint there is no whisper of pendency of the said Civil Suit. So suppressing the material fact the Complainants have filed this complaint, which is not ethical, legal and proper in the eye of Law. In our considered opinion as the said Civil suit has been filed by the OP-1-3 prior to filing this complaint claiming to declare the Development Agreement as well as the Power of Attorney as void, illegal and in-operative, until and unless the said Civil Suit is disposed of by the Ld. Civil Court, the instant complaint cannot run, in fact the Complainants are under the obligation not to proceed with this complaint further till disposal of the Civil Suit. Moreover as the Civil Suit has been filed earlier to this complaint, we are not also in a position to proceed with this complaint further till the disposal of the said Civil Suit. It is pertinent to mention that if the Ld. Civil Court will be pleased to declare the Development Agreement and the power of attorney as void and illegal, then the order/s passed in this complaint will be infractuous.

The OP-1-3 have further mentioned in the application that the present Complainants prior to filing this complaint case filed another consumer complaint before the Ld. DCDRF, Barasat being no-CC/316/2018 against these OPs praying for reliefs i.e.

A) An order directing the OPs to hand over the possession of the suit flat to the consumers, B) An order directing the OP-1-3 to pay compensation of Rs.50,000/- for mental agony and harassment to the Complainants,

C) To pay cost of litigation and

D) To pass further relief as your Honor may deem fit and proper.

The present OP-1-3 have also entered appearance in the said CC/316/2018 and contested the complaint by filing written version. There are some pertinent factors of the said proceeding as follows:-

1. The OP-1-3 appeared on 15.01.2019 and the OP-4 appeared on 07.01.2019 the OP-4 filed an application being no-MA-12/2019 for settlement.
2. The MA-12/2019 was allowed on 15.01.2019 giving liberty to the OP-4 to provide delivery of possession of the subject flat to the Complainants on receipt of balance consideration money within 15 days from the date of the order and the OP-4 was further given liberty to seek police help from the local police station if the OP-1-3 will create disturbance/obstruction at the time of giving them possession.
3. The CC/316/2018 is still pending before the Ld. DCDRF, Barasat awaiting order from the Hon’ble SCDRC for transfer of the said complaint from the Barasat Commission (as amended) to this Ld. Commission at Rajarhat (New Town) on the ground that the territorial jurisdiction of the said complaint falls under the jurisdiction of this Ld. Commission.
4. During pendency of the said complaint being no-316/2018 the Complainants have filed the present complaint being no-CC/82/2020 on 18.02.2020 against the same OPs based on the same cause of action relating to the same dispute.

In respect of the aforementioned contention of the application filed by the OP-1-3 it is seen by us that two complaints i.e. CC/316/2018 & CC/82/2020 were filed by the Complainants one before the Ld. Commission, Barasat and another before this Ld. Commission the cause of action of both the cases arose admittedly on 03.05.2017 and the suit property referred in both the cases are same and identical and the nature of the dispute is also same and identical and the parties are also the same. Therefore we are also of the same view of the OP-1-3 that the present suit is barred by the principles of Resjudicata and hence the Complainants in the present complaint cannot get any relief as the same is strictly barred by the provisions as laid down in Order II Rule 2 of the CPC. It is general Principle of Law that a suit or proceeding should include the whole claim. It has been categorically stated in Order II Rule 2 (3) of the CPC that if a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. It has also been mentioned in the Order II Rule 2 (2) of the CPC that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.This Provision of the CPC can be applied as a Principle of Natural Justice and Equity of Justice. Therefore as the present Complainants did not pray for the whole claim intentionally and deliberately in respect of the same cause of action and omits to pray for registration in the previous complaint being no-316/2018 as the Complainants cannot be allowed to pray such relief as sought for in the present complaint. It is true that when the Complainants have entered into an agreement for sale with the OP-4, then as per the terms and the conditions of the said agreement the Complainants are entitled to get physical possession in the questioned flat, registration in their favour, completion certificate and etc. So what prompted the Complainants not to claim the entire reliefs in the earlier complaint being no-316/2018 filed before the Ld. Commission, Barasat. We have noticed that in the complaint-316/2018 the Complainants have only prayed for delivery of the possession along with compensation and litigation cost and by filing the present complaint the Complainants have sought for execution and registration of the flat along with compensation and litigation cost. Therefore it is clear that in the two complaints the Complainants have prayed for compensation and litigation cost twice. If the both complaint will be allowed then the Complainants will get double compensation and litigation cost ina case arose out of the same cause of action. As per settled law one person cannot be benefitted or penalised twice in the complaint arose out of same cause of action. Surprisingly it is also not disclosed by the Complainants that the CC/316/2018 is still pending before the Ld. Commission, Barasat.In this respect the Ld. Counsel for the OP-1-3 have placed reliance on the judgment passed by the Hon’ble SCDRC, Delhi, passed in the First appeal being no-175/2013 in the case of Mange Ram Sangwan vs. BSES Rajdhani Power Limited & Others, wherein Their Lordships have held that ‘Even if the Order 2, Rule 2, CPC has not been mentioned in the Section 13 of the Consumer Protection Act as being applicable to the proceedings thereunder, the provision will apply as a Principle of Justice, Equity and Good Conscience, as also a Principle of Natural Justice.’ The Ld. Counsel for the OP-1-3 has also placed reliance on the judgments passed by the Larger Bench of the Hon’ble NCDRC passed in the First appeal no-122/1991 in the case of U.Rajendran vs. Tamilnadu Mercantile Bank Limited and another in the Revision Petition no-229/1991 in the case of LIC of India vs. Shyam Dulari Devi Agarwal, we have carefully gone through the said judgments and it is seen by us that Their Lordships have been pleased to pass an order to the extent that in the same cause of action more than one complaint cannot stand. It is stated by the OP-4 in the written objection that as this complaint is filed before this Ld. Commission, hence the cause of action of the complaint will be different. Such contention of the OP-4 is a dangerous proposition on the ground that shifting or transfer of any complaint from one Commission to other Commission on the ground of its territorial jurisdiction, the cause of action of the complaint will not differ or change in accordance with law. It is pertinent to mention that before filing of this complaint the Complainant did not seek any permission from this Ld. Commission as enumerated in the CPC mentioned above.

In view of the aforementioned discussion we are of the view that the MA being no-12/2022 filed by the OP-1-3 challenging the maintainability of the present complaint is thus allowed. Considering the facts and circumstances of the complaint and the application there is no order as to cost.

As the maintainability application is allowed, hence the petition of complaint being no-CC/82/2020 does not stand at all and hence the complaint is also dismissed.

Let plain copy of this order be given to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER