IMPORTANT POINT
Once complainant approach Civil Court for relief of possession of flat, complaint for same relief before District Forum was not maintainable.

DATED: 29.08.2014

K.S. Chaudhari, Presiding Member—Both these revision petitions arise out of the common order passed by learned State Commission; hence, both revision petitions are decided by common order.

2. These revision petitions have been filed by the petitioners/complainants against the order dated 29.11.2007 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal Nos. 1724 & 1725 of 2003 – Smt. Damyanti Kantilal Shah vs. Rashmi Griha Nirman Ltd. & Ors. & Mr. Kantilal G. Shah vs. Rashmi gruha Nirman Ltd. & Ors. by which, while allowing appeal order of District Forum allowing complaint was set aside.

3. Brief facts of the case are that complainants/petitioners booked flat no. 219 & 224 measuring about 850 sq. ft. of built up area on the 2nd floor of C Wing in Rashmi Enclave, Mira Road, District Thane for total consideration of Rs.6,80,000/- respectively with Opposite Party No. 1 and its two directors/Respondents No. 1 to 3. Opposite party executed Agreement of Sale on 24-04-1999. Possession of the flat was to be given on 11-08-2001. Opposite parties failed to hand over possession and returned the amount. Alleging deficiency on the part of the opposite party, complainants filed complaint before District Forum with a prayer to direct opposite parties to hand over possession of flats and further pay interest and compensation. Opposite party no. 3 was proceeded ex-parte. Opposite party No. 1&2 resisted complaint and submitted that District Forum had no territorial jurisdiction and complaint was barred by limitation. It was further submitted that complainants have nowhere pleaded deficiency in service and they had already filed Civil Suit No. 368/2002 & 369/2002 on 24-05-2002 for possession, hence complaints are not maintainable and prayed for dismissal of complaints. Learned District Forum after hearing both the parties allowed complaints and directed opposite parties to hand over possession of respective flats and further allowed interest, compensation and cost. Appeals filed by the opposite parties were allowed by learned State Commission vide impugned order against which these revision petitions have been filed.

4. None appeared for Respondent No. 3 and he was proceeded ex-parte.

5. Heard learned counsel for the parties and perused record.

6. Learned counsel for the petitioners submitted that learned State Commission has committed error in allowing appeal only on the ground of double jeopardy as Civil Suits had already been withdrawn during pendency of complaints before District Forum, hence revision petition be allowed and impugned order be set aside and order of District Forum be restored. On the other hand, learned counsel for the respondents submitted that order passed by the learned State Commission is in accordance with law, hence revision petition be dismissed.

7. It is not disputed that complainants filed Civil Suits on 24-05-2002 before the Civil Court for decree for possession and injunction. Later on, complainants filed complaint before District Forum on 10-06-2003 with the same main prayer regarding possession of flats along with compensation. It is also not disputed that during pendency of complaint Civil Suits were withdrawn on 29-03-2004 and complainants proceed with their complaints which were decided in their favor and appeal filed by opposite party was allowed by learned State Commission and complaints were dismissed.

8. Learned counsel for the petitioners submitted that merely by filing civil suit prior to filing complaint, which was withdrawn during pendency of complaint, complainants cannot be left without remedy and learned State Commission has committed error in allowing appeal and dismissing complaint. In support of its contention, he has placed reliance on judgment of Hon’ble Apex Court reported in Ashish Ranjan vs. Anupma Tandon & Anr. (2010) 14 SCC 274, in which it was observed in para 11 as under:—

“The submission made by Shri Sh