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I.A. No. 464 of 2021 (dismissal of complaint)

1.       This is an application filed by the opposite party builder co. seeking dismissal of the complaint, essentially on two grounds:

one: abuse of the process of law by the complainant real estate co.; and

two: the complainant real estate co. is not a consumer within the meaning of Section 2(1)(d) of the Act 1986 (corresponding Section 2(7) of the Act 2019) [the CP Act].

2.       In respect of the first question, re abuse of the process of law, learned counsel for the opposite party submits that the complainant filed the instant consumer complaint no. 2359 of 2017 before this Commission on 11.08.2017. Subsequently it also filed complaint no. 1431 of 2018 before the Real Estate Regulatory Authority (RERA) on the same cause of action. The opposite party too filed complaint no. 903 of 2019 before the RERA. The RERA decided both complaints together and made its Order dated 12.12.2019, against which Order the complainant has filed appeal no. 211 of 2020 with the Real Estate Appellate Tribunal (REAT) wherein notice has been issued and the appeal is pending.

3.       Learned counsel for the opposite parties further submits that a perusal of the respective prayers made before this Commission and before the RERA shows that their essence is the same, and they have been filed on the same cause of action.

4.       Here, for reference, the respective prayer clauses in the complaint no. 2359 of 2017 dated 11.08.2017 before this Commission and in the complaint no. 1431 of 2018 dated 12.11.2018 filed before the RERA are reproduced below:

prayer clause in C.C. No. 2359 of 2017 before this Commission:

1.   Direct the Opposite Party to pay a sum of INR 15,94,62,648/- (Rupees Fifteen Crores Ninety Four Lacs Sixty Two Thousand Six Hundred Fourty Eight Only), as total amount to all the complainants along with pendenlite and future interest @24% per annum, till the actual realization of the amount;

2.   Direct the Opposite Party to pay a sum of INR 3,68,85,802/- (Rupees Three Crore Sixty Eight Lacs Eighty Five Thousand Eight Hundred and Two Only) paid by the complainant towards bank charges (including interest) as on 31.07.2017 for the loan availed from PNB Housing Finance Ltd.

3.    Direct the Opposite Party to pay a sum total of Rs. 10,00,000/- (Rs. Ten Lacs Only) as compensation and damages for the mental agony, harassment and opportunity loss and also pay Rs. 2,50,000/- (Rs. Two Lacs Fifty Thousand Only) as a litigation cost to the complainants.

4.   Pass any other such order(s), as this Hon’ble Court deems fit and proper in the facts and circumstances of the case.

prayer clause in complaint no. 1431 of 2018 before the RERA:

(i). Direct the respondents to pay a sum of INR 15,94,62,648/- (Rupees Fifteen Crores Ninety Four Lacs Sixty Two Thousand Six Hundred Forty Eight Only) alongwith pendenlite and future interest as per prescribed rate of interest, till the actual realization of the amount.

(ii)  Direct the respondents to pay a sum of INR 4,65,01,780 (Rupees Four Crore Sixty Five Lacs One Thousand Seven Hundred Eighty Only) paid by the complainant towards bank charges (including inter