Per Mr.B.S.Wasekar, Hon’ble President

1)                The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986. According to the complainants, they are the members and share holders of the O.P.No.1/C.H.S.Ltd. They are the joint owners of Flat No.28/B.  There is leakage in the flat since last seven years from the terrace, overhead water tank and external walls due to non maintenance of the building by the O.Ps.  The rain water drips from the ceiling and the walls, causing severe damages to the interiors, paints and furnitures in the flat.  The complainants repeatedly complained to the Opponents for the repairs but they neglected to carry out the repairs.  Notices were also addressed to the opponents.  The opponents were bound to carry out the repairs under the provision of section 160 of the byelaws and other provisions of the Maharashtra Co-operative Societies Act.  The complainant filed dispute bearing No.CC/III/564 of 2007 in the Co-operative Court No.III, Mumbai directing the opponents to carry out the repairs and maintenance and to stop the leakage in the flat.  The opponents failed to file the written statement in the matter.  The complainant requested for interim relief before the Co-operative Court by filing miscellaneous application. The Co-operative Court partly allowed the application directing opponent society to carry out the necessary repairs in order to stop the leakage within one month from the date of order. The O.P./Society was directed to file compliance report till 5^th June, 2008.  In spite of order of the Co-operative Court, the O.P./Society and its office bearers did not carry out the repairs and did not file compliance report.  Therefore, the complainants filed contempt application bearing No.51 against the O.P./Society and its office bearers.  The opponents filed their reply to the contempt application and the application is pending for cross examination of the parties. The complainant also filed execution proceeding in the said matter and the same is pending.  The complainants contributed towards repair charges till April-2010 and thereafter stopped as opponents failed and neglected to carry out the repairs.  The opponents deliberately avoided to carry out the repairs with malafide intention.  The complainants are facing hardship. 

2)                The complainant received notice dated 24^th July, 2011 signed by the Secretary in which it was mentioned that the defaulters will not be permitted to attend the meeting. The complainant was not permitted to attend the meeting.  The complaint was lodged with Mahim police station.  The O.P./Society and its office bearers illegally resolved that the complainants are the defaulters and their right as member stands suspended.  Therefore, the complainants wrote letter to Deputy Registrar, Co-operative Societies dated 24^th August, 2011.  The Deputy Registrar vide letter dated 5^th March, 2012 informed the opponents that the act and conduct of the O.P. is not legal and proper.  The complainant suffered hardship and mental harassment due to illegal acts of the opponents.  Therefore, the complainants have filed this complaint for compensation of Rs.5 Lakhs with interest towards harassment and mental agony.  They have prayed for direction to the opponents to tender written unconditional apology and also to pay the cost of proceeding Rs.50,000/-.

3)                The opponents appeared and filed application taking objection about the maintainability of this complaint before this Forum.  According to the opponents, dispute is already pending before the Co-operative Court.  Recovery proceeding is also pending under section 101 of Maharashtra Co-operative Societies Act.  Therefore, the present complaint is not maintainable before this Forum as it is on the same cause of action. 

4)                During the course of hearing, it was brought to our notice that the O.P.No.3 has been expired. Hence, on the request of the complainant his name is deleted vide order dated 12^th December, 2013.

5)                As the maintainability of this complaint is challenged on legal aspect, the complainants were directed to file their reply and argument.  Accordingly, they have filed their reply and submitted their written notes of argument.  The opponents remained absent at the time of hearing on the ground of maintainability of the complaint. The complainant is heard on the point of maintainability of the complaint. 

6)                On perusal of complaint, the relief as per prayer clause is for compensation of Rs.5 Lakhs with interest towards the harassment, mental agony suffered by the complainants.  They have also prayed for written unconditional apology from the opponents and cost of the proceedings.  In the complaint itself, the complainants have stated that the O.P./Society was not carrying out repairs and maintaining the building.  Therefore, there was leakage in their flat.  In spite of notices, there was no response.  Therefore, they have filed dispute before Co-operative Court bearing CC/III/564 of 2007.  Copy of the dispute is produced on record by the complainants.  The dispute was filed before the Co-operative Court in December-2007.  The present complaint is filed 7^th August, 2012 i.e. after five years from the complaint pending before the Co-operative Court.  Before the Co-operative Court, the complainants have prayed for mandatory injunction directing the opponents to carry out the repairs.  The said dispute is still pending.  The complainants prayed for interim relief in the said dispute before the Co-operative Court and the Co-operative Court passed the order dated 5^th May, 2008 and allowed the interim relief directing O.P./Society to carry out repairs in order to stop the leakage of water to the flat of the complainant.  Direction was given to comply with the order within one month and to file compliance report on 5^th June, 2008.  According to the complainants, there was no compliance therefore, contempt application was filed and the same is pending before the Co-operative Court.  The opponents are alleging that there was compliance of the order but report was not submitted.  It is for the Co-operative Court to decide whether there was compliance or not.  This Forum can not entertain the submissions on that ground.  The relief claimed by the complainant is already granted by the competent authority i.e. Co-operative Court.  The complainants have made similar allegations in this complaint also.  Once the relief is granted and the matter is subjudiced before the competent court, this Forum can not entertain the same complaint. In the written notes of argument, the complainant have cited the judgment of Hon’ble Supreme Court in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Socity –Versus- M. Lalitha reported in (2004) I Supreme Court Cases 305. In para 19 of the judgment, the Hon’ble Supreme Court has held as under

The question of conflict of decisions may not arise. If the parties approach both the forums created under the Act and the 1986 Act, as indicated in the case of Fair Air Engineers (P) Limited, it is for the forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other forums, depending on the facts and circumstances of the case.

In this judgment, the Hon’ble Supreme Court has specifically laid down that if the parties approached two forums then it is for the parties to avail either remedy depending upon the facts and circumstances of the case.  In the instant complaint before us, the complainants have already filed dispute before the competent Co-operative Court in the year-2007 and the Co-operative Court has granted relief and still the matter is subjudiced before the Co-operative Court.  Five years thereafter, the complainants have filed this complaint. The complainants have already opted to approach the Co-operative Court and got the relief.  Therefore, the complainants are not entitled to approach this Forum again on the same cause of action.  At this juncture, we would like to rely upon the judgment of Hon’ble National Commission in the case of U.Rajendran –Versus- Tamil Nadu Merchantile Bank Limited reported in I (1992) CPJ 220 (NC). In para 6 of the judgment, the Hon’ble National Commission has laid down as under :

The claimant vehemendy argued that Order 2, Rule 2, Civil Procedure Code has not been made applicable to the proceedings before the various forums constituted under the Consumer Protection Act, 1986 and therefore, the State Commission was not right in relying upon that provision. We do not think it necessary to go into that argument in detail. Section 3 of the said Act lays down that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Thus there were two remedies open to the claimant. He could have filed a civil suit for the recovery of the amount or he could have instituted proceedings under the Act of 1986. The complainant chose the first referred remedy and filed a civil suit for the recovery of the Muthukuvial Deposit which was decreed. For delayed payment by the Bank he has been allowed interest. He can not be now permitted to institute proceedings under the Act of 1986 about that deposit and for compensation about non-payment on maturity. If he is allowed to do so, it will amount to abuse the process of law. A party can not be permitted to harass the opponent twice for the same cause of action.

Similar view is taken by the Hon’ble National Commission in other judgment in the case of M/s.Oswal Fine Arts –Versus- M/s. H.M.T. Madras, reported in I (1991) CPJ 330 (NC). In para 2 (ii) it is held as under :

Another formidable objection to the maintainability of this claim is that the matter is sub-judice before the Madras High Court on its original side where the complainant has instituted a suit for damages against the respondent based on the identical cause of action. There is also a cross suit filed by the respondent company in the city Civil Court at Bangalore claiming certain reliefs against the Complainant in respect of the same transaction. When the matter is, thus, sub-judice before the ordinary Civil Courts of the land, this Commission cannot and will not entertain any claim for compensation in respect of the identical subject-matter.

7)                In view of the abovecited judgments, even though the remedy is available to file complaint before this Forum still the complainants have already sought relief from the Co-operative Court and the matter is still subjudiced before the Co-operative Court therefore the present complaint is not maintainable. 

8)                The relief prayed by the complainants is for compensation towards mental agony and harassment by not carrying out repairs and stopping leakage.  The main grievance of the complainants is about the maintenance and repairs and stopping leakage. The relief of compensation is ancillary relief which can be granted if the complainants are entitled for the relief of repairs and stopping leakage.  As the dispute is pending before the Co-operative Court and the complainants got relief from the Co-operative Court and as the matter is subjudiced before the Co-operative Court, the present complaint is not maintainable before this Forum.  Hence, we proceed to pass the following order.

O R D E R

1. Complaint stands dismissed as not maintainable.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced

Dated 24^th March, 2014