IMPORTANT POINT
Consumer Complaint – Election of a remedy arises when two concurrent remedies are available and aggrieved party chooses to exercise one and, in that event, he loses right to simultaneously exercise other for same cause of action.

ORDER :

1. The maintainability of Consumer Complaint No. 122/2022 on the file of the National Consumer Disputes Redressal Commission (for short ‘the NCDRC’), New Delhi, is in issue. By order dated 23.08.2023, the NCDRC held that the said complaint was maintainable and rejected the preliminary objection raised by M/s Kabra and Associates and some other respondents in the said complaint case. Aggrieved thereby, M/s Kabra and Associates and its partners are before this Court by way of this appeal.

2. The admitted fact is that the complainants in the aforestated complaint case, viz., Rekha and Raj Kumar Hemadev, respondent Nos.1 and 2 in this appeal, approached the Maharashtra Real Estate Regulatory Authority (for short, ‘the Authority’) in the first instance, voicing their complaint against the developer, M/s Kabra and Associates. Their initial complaint, being Source Complaint Case No. SC10001434, was that M/s Kabra and Associates had failed to register the building erected by it, wherein they had purchased flats, as an ongoing project under the provisions of Section 3 of the Real Estate (Regulation and Development) Act, 2016 (for short ‘the Act of 2016’).

3. Thereafter, they filed another complaint in CC No. 006000000057380 before the Authority under Section 18 of the Act of 2016 seeking refund of the amounts paid by them to M/s Kabra and Associates for their flats, viz., Flat Nos. 2101 and 2102.

4. Their earlier Source Complaint Case No. SC10001434 was disposed of by the Authority, vide order dated 14.05.2019, holding that it was not mandatorily required for M/s Kabra and Associates to register the project under Section 3 of the Act of 2016. Irrespective of whether the aforestated order was correct in the eye of law, the irrefutable fact remains that it attained finality and is, therefore, binding between the parties.

5. The subsequent complaint case was, however, sought to be withdrawn by the complainants, viz., respondent Nos. 1 and 2 herein. They filed letter dated 15.02.2019 before the Authority stating to the effect that they had mentioned, by error, a different project. They specifically stated as follows:

“........Sir, I will file again in RERA not registered project as “Vihang” and where actually the property was purchased and we have been cheated”. Acting upon the aforestated withdrawal letter, the Authority passed an order on 15.05.2019 as follows:

“1. The complainants had filed this complaint under Section 18 of the Real Estate (Regulation and Development) Act 2016 (herein after referred to as RERA) seeking refund of the amounts paid by them to the respondent 6 her flat Nos.2101 & 2102 in the respondent’s project known as ‘KABRA AURUM’.

2. The complaint was heard in presence of the concerned parties. During the hearing, the complainant submitted that he had already given an application to file a fresh complaint with Maha-RERA since the project in question was not unregistered and that the complainant could not seek any reliefs under the Act.

3. The respondent brought to the notice of Maha-RERA that the complainant had already filed a source complaint for unregistered project with Maha-RERA and the same was disposed of stating that the project need not be registered. Hence, he requested the complaint to be disposed off in view of the said order.

4. In view of the fact stated above, it can rightly be said that since the complainant has already given an application to withdraw the complaint and file it afresh, there is no remedy that is available to be granted to the complainant in this particular complaint. The complainant, may, therefore, approach an appropriate forum to get the relief is sought by him during this complaint.

5. The complaint consequently stands disposed of.”

6. We may note that in paragraph 2 of the order extracted above, the authority recorded that the complainant had submitted during the hearing that he had already given an application to file a fresh complaint with the authority since the project in questio