Jury’s Verdict

“Consumer complaint filed by complainants before district forum are not maintainable when civil suit for same relief has already been filed before civil court prior to filing of consumer complaint,” Justice VB Gupta, presiding member, had said while pronouncing his verdict in the matter of Damayanti Kantilal Shah, Kantilal Ghelabhai Shah versus Rashmi Grihnirman Ltd and Others.

In 2008, a revision petition was filed before the National Consumer Disputes Redressal Commission (NCDRC) against the 2007 order of Maharashtra State Consumer Disputes Redressal Commission, Mumbai. In this matter, a judgement was dictated by Justice KS Chaudhari, the then presiding member, and the same had been sent for approval of Dr BC Gupta, who was the member of the same forum and sent a dissenting judgement. Thereafter, the matter was placed before the president, NCDRC, under Section 20 (i) (iii) of the Consumer Protection Act for appropriate directions. The president referred the matter to Justice VB Gupta, member (3rd bench). Justice Gupta agreed with the statement of the presiding member Justice KS Chaudhari.

Case Background

The complainants had booked two flats in Thane with builder Rashmi Grihnirman Ltd. The builder executed an agreement of sale in 1999 and was supposed to give possession of the flats in 2001. However, the builder failed to keep his commitment as per the agreement and did not provide possession to the complainants and returned the paid amount instead. Alleging deficiency on the part of the builder, the complainants reached the district forum, demanding possession of the flats as well as interest on the paid amount along with compensation for delay. The builder, on the other hand, submitted that the district forum had no territorial jurisdiction because the complainants had already filed a civil suit.

The forum heard both parties, admitted the complaint, and directed the builder to hand over possession of the respective flats along with the applicable interest, compensation and legal costs.

The builder did not oblige and filed an appeal before the State Commission of Maharashtra. The latter set aside the order of the district forum. Hence, a revision appeal reached the NCDRC, where it was thoroughly deliberated upon by the two-member bench. Justice BC Gupta maintained that although the State Commission had set aside the order of the district forum on the right grounds that the matter was already being heard in the civil court, they in the process have been left remediless by virtue of the impugned order. Consequently, the alleged act of omission or commission on the part of builder has been left without judicial scrutiny.

Justice Gupta also made a reference to Section 3 of Consumer Protection Act which provides an alternative remedy to consumers to get their rights enforced through the mechanism of consumer fora. The Supreme Court, in their judgement in Secretary, Thirumurugan Co-operative Agricultural Credit Society versus M Lalith in 2004, had taken the view that the better provisions need to be interpreted broadly, positively and purposefully to give a meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act, in addition to other remedies provided under other Acts.