The Consumer Complaint is inadmissible post-settlement in NCLT, as the dispute surrounding non-delivery of property is concluded under different jurisdiction.

ORDER

PER A.P. SAHI, J., PRESIDENT

This appeal has been heard at the admission stage as notices had been issued earlier on 01.05.2024.

Learned counsel for the opposite party/respondent has appeared and has contested the appeal urging that the impugned order dated 09.02.2024 passed by the SCDRC Rajasthan (hereinafter referred to as the State Commission) does not require any interference for entertaining of this appeal in the background of the case.

Learned counsel for the complainant/appellant has advanced his submissions contending that the State Commission has committed an error by nonsuiting the complainant/appellant on the ground that she is not a ‘consumer’ and secondly has erroneously applied the principles of res judicata that are not applicable on the facts of the present case.

On merits, learned counsel contends that as agreed, the refund in respect of the property booked by the complainant/appellant was made as per the terms of the settlement before the National Company Law Tribunal (NCLT) but it was not honoured timely, and on account of such delay, a sum of Rs.80,48,425/- is liable to be paid as interest. The complaint has therefore been filed for realization of this interest part as claimed in the complaint as there was a deficiency in service by the opposite party/respondent in not handing over the premises and causing consequential loss to the complainant/appellant. The claim of interest therefore arises out of the aforesaid deficiency in service by not refunding the amount timely, hence, any intervention at the level of NCLT does not take away the right of the complainant/appellant to file a consumer complaint under the Consumer Protection Act, 2019 (hereinafter referred to as the 2019 Act). The contention therefore is that the impugned order is manifestly erroneous as it is based on an incorrect appreciation of law and facts and hence the appeal deserves to be entertained and allowed and the impugned order deserves to be set aside. It is further submitted that the claim should be allowed and the interest on the amount as claimed should be directed to be paid to the complainant/appellant.

Learned counsel for the complainant/appellant has read Clause-5 of the Agreement for Sale in respect of the property that had been booked by the complainant/appellant which was a flat, against which a sum of Rs.2,33,42,700/- was the consideration for the flat measuring built-up area 2506 sq. ft.

The premises had to be handed over on or before 31.03.2018 but the Builder defaulted and consequently a Petition being IB No. 274/7/JPR/2019 was instituted before the NCLT at Jaipur by the complainant/appellant as a financial creditor/applicant, where orders were passed on 21.11.2019 noting the fact that the complainant/appellant and the opposite party/respondent were interested to settle the matter.

It seems that the matter was settled and the terms of settlement were drawn up in a Cancellation Agreement dated 18.12.2019 which is on record. Learned counsel for the complainant/appellant has invited the attention of the Bench to the different clauses of the said Cancellation Agreement which is extracted hereunder:

The said Cancellation Agreement was also simultaneously followed by the presentation of the terms of a settlement before the NCLT and the same is extracted hereunder:

On the filing of the same, the NCLT passed an order on 19.12.2019 which is extracted hereunder:

“Heard the submissions made by the counsel for both the parties. The petition filed under Section 7 of the IBC by the Financial Creditor is now sought to be withdrawn in terms of Rule 8 of IBC (Application to Adjudicating Authority) Rules, 2016. The Application filed in this regard by the Financial Creditor is taken on record. The said application contains a settlement agreement which in the relevant Annexure shows the quantum of principal and interest to be paid in six instalments. The counsels have also made a mention that the last instalment is due on 20^th May, 2020. In case