MR. SHYAMAL KUMAR GHOSH, MEMBER
The instant Revision Petition has been filed by the revisionist/complainant challenging the order impugned being no .9 dated 02/09/2022 passed by the ld DCDRC, Rajarhat, New Town in connection with consumer case being no – CC/4/2021 wherein the ld DCDRC has been pleased to hold that there is no need to proceed with the instant case and as such the further proceeding of this case will remain stayed till the disposal of the Title Suit being no. 883/2022. Being aggrieved and dissatisfied with such order, the complainant/revisionist has filed the instant Revision Petition before this Commission praying for setting aside the order being no .9 dated 02/09/2022 passed by the Ld Trial commission.
The ld advocate appearing for the complainant/revisionist has argued that the issues involved in the Money Suit as well as in the Title Suit as agitated by the opposite party herein are totally different and the issues as raised in the petition of complaint are not same and identical with the issues as involved in those civil suits. Ld advocate has also cited a case law ie ARUN KHANNA VS SHASHI SHARMA wherein the Hon’ble National Commission has been pleased to hold that pendency of civil suit is not a bar to file complaint before the Consumer Forum. Ld advocate has also cited a remarkable judgment FAQIR CHAND GULATI VS UPPAL AGENCIES PVT LTD, wherein the Hon’ble Apex Court has been pleased to hold that where the builder/promoter commits any breach of his obligations, the land-owner may be permitted to approach before the civil court or the consumer forum. But in any way the builder/promoter is not permitted to approach before the Consumer Forum. Rather the aforesaid builder/promoter may approach before the Civil Court for getting relief/reliefs against the land-owner. In this regard ld advocate has placed reliance under section 3 of the Consumer Protection Act, 1986 which confers that remedy available under the Act is an addition and not in derogation of the other provisions of law. Accordingly, the Ld advocate appearing for the complainant/revisionist has prayed for setting aside the order impugned being no. 9 dated 02/09/2022 passed by the Ld Trial Commission.
Ld advocate appearing for the opposite party, at the time of final hearing of the instant RP, has submitted that the opposite party/developer has filed a suit for damages for breaches of contracts and for realization of outstanding dues against the petitioner/complainant herein vide Title Suit being no – 119/2021 in the ld 2nd court of civil judge (senior Division) at Howrah. Thereafter the petitioner/complainant has filed a petition under order VII Rule 11 CPC challenging the maintainability of the aforesaid suit and after hearing both sides, ld Court has been pleased to allow the said petition on the ground of territorial jurisdiction but a liberty has been given to opposite party/developer herein to re-file the same before the appropriate court. Thereafter the same has been filed before the Ld. 1st court of civil judge (senior division) at Barasat and the same has been renumbered as Title Suit being no. 853/2022 which is still pending for final adjudication. Ld advocate has further submitted that at this situation and circumstances if the matter is proceeded in the Consumer Commission the opposite party/developer will suffer irreparable loss and injury and it will cause multiplicity of proceeding. Accordingly, the ld advocate has prayed for rejection of the instant Revision Petition with costs.
We have heard the ld advocate for both sides at length and in full.
We have gone through all materials available on the record.
We have considered the submissions of both sides.
The final hearing in respect of aforesaid Revision Petition has been concluded.
Having heard the ld advocates for both sides and upon careful perusal of the record we seem that there is only one moot question as to whether the Consumer Forum is entitled to proceed the consumer case when the Title Suit/Civil Suit between the same parties and self same cause of action is pending before the concerned Civil Court that should be decided by this Commission.
Referring to the above we can safely rely upon the decision SATPAL MOHINDRA VS SURINDERE TIMBER STORES REPORTED IN (1999) 5 SCC 696, wherein the Hon’ble Apex Court has been pleased to hold the views inter alia as under:
‘In the light of the judgments discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar. The remedies are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act.’
In another case, relying upon the decision of the Hon’ble Apex Court in Guru Granth Saheb Meerghat Vanaras vs Ved Prakash & Ors. Reported in (2013)7 SCC 622 the National Consumer Commission by order dated 07/11/2014 in CC/383/2013 and other connected complaints has laid down as follows:
‘We are, therefore, of the view that the trial in criminal cases against the opposite-party, is no ground for stay of proceedings before the consumer fora. As a matter of fact, having regard to the object and intend of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails.’
We must provide respect to the preamble of the Consumer Protection Act as this Act has been exclusively enacted for the benefit of the consumer and to that effect liberal view should be taken in order to meet proper justice to the consumer/complainant. We cannot throw the petition of complaint on the ground of one Civil Suit/Title Suit is pending before the ld Civil Court on the self same cause of action and self same parties. In the foregoing views in Lucknow Development Authority vs M. K. Gupta (1994) 1 SCC 243 it has been observed as under:
‘To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of interests of consumers. Use of the word protection furnishes key to the minds of makers of the Act. It means and indicates that the legislature in its wisdom left the matter for consideration to a consumer to choose the forum for his convenience and in any case, the proceeding before a consumer forum cannot be stayed simply on the reason is that one civil suit is pending. The trend of the decision of the Hon’ble Supreme Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Hon’ble Supreme Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.’
At this juncture, we simply find that the ld trial Commission has expressed its view on another angle which should not be acceptable by this commission in pursuant to the above observations. Accordingly there is no hesitation to hold that there is a wrong, error, mistake or irregularity in passing the order impugned being no – 09 dated 02/09/2022 passed by the ld Trial Commission.
Keeping in view of the above observations and for finality in litigation we allow the instant Revision Petition filed by the complainant/revisionist and we also set aside the order impugned dated 02/09/2022 without any order as to costs.
The ld Trial Commission is directed to proceed the consumer case in accordance with law and to dispose of the matter as soon as possible without granting any unnecessary adjournments to either of the parties.
The instant Revision Petition stands disposed of.
Not accordingly.
Let a copy of this order be transmitted to the ld Trial Commission for compliance and also for necessary action.
