ORDER

Admittedly, the complaint before the RERA Authority is also for possession and consequential reliefs. In this complaint also, relief of possession and consequential reliefs are claimed.  The Doctrine of Estoppel by Election will apply.  The complainants are given one month’s time to choose as to which remedy he wants to prosecute and which remedy he wants to withdraw.  If the complainants want to withdraw the RERA proceedings, then they shall bring the order of withdrawal by the next date of hearing. 

IA/1057/2023 has been filed by the opposite parties for dismissing this complaint as not maintainable inasmuch as the complainants have already filed complaint no. SC10002509 before Maharashtra Real Estate Regulatory Authority, Mumbai.  A copy of the complaint filed by the complainants has been attached along with this application which shows that complaint was filed on 02.03.2022 while this complaint was filed on 05.07.2022. The main relief of possession is made in both the complaints.  Other reliefs are consequential to the main relief. 

Counsel for the complainants however, states that the project has not been registered under Section 8 of The Real Estate (Regulation and Development) Act, 2016 as his complaint has been registered as a source complaint and not a regular complaint.  Registration of the source complaint does not mean that reliefs claimed in the complaint can be granted by the RERA Authority.  Nobody can be allowed to bypass the law of the land merely by non-registration of the project.  Otherwise, jurisdiction of the RERA Authority for grant of reliefs is available. 

Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna (2021) 3 SCC 241 has held as follows:

“37.5. An allottee may elect or opt for one out of the remedies provided by law for redressal of its injury or grievance. An election of remedies arises when two concurrent remedies are available, and the aggrieved party chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action.”

Therefore, this case is fully covered by the judgment of Supreme Court in the above case.  Counsel for the complainants however, relief upon the judgment of Supreme Court in M/s Imperia Structures Ltd. Vs. Anil Patni & Anr., Civil Appeal No. 3581-3590 of 2020 @ Civil Appeal Diary No.9796/2019.  In this case, Supreme Court has held that remedy to a consumer in the Consumer Protection Act, The Real Estate (Regulation and Development) Act, 2016 and Insolvency and Bankruptcy Code, 2016 are concurrent remedies and the doctrine of election has not been considered in this case.  In view of the larger Bench Judgment of Supreme Court in Abhishek Khanna (supra), this complaint is not maintainable.  Accordingly, it is dismissed. 

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RAM SURAT RAM MAURYA

PRESIDING MEMBER

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BHARATKUMAR PANDYA

MEMBER