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Judgment
M/s Moran Plantation Pvt. Ltd. has filed the instant complaint against the opposite party M/s Ambience Pvt. Ltd. on the allegation of deficiency in service on the part of the opposite party in relation to an apartment booked by the complainant being apartment No.702, I-Block, Caitriona relating to Island project undertaken by the opposite party.
It may be noted that earlier also the complainant filed a consumer complaint against the opposite party on the allegations of deficiency in service in respect of builder-buyer agreement executed between the parties in relation to the allotment/purchase of the above-noted apartment. The said complaint being consumer complaint No.307/2012 was dismissed by the Co-ordinate Bench of this Commission vide order dated 2 nd September, 2013 on the ground that the complainant is not a consumer and as such it could not raise the consumer dispute. The Co-ordinate Bench, however, gave liberty to the complainant to approach the Civil Court to seek its remedy.
Being aggrieved of the order of the Co-ordinate Bench dated 2 nd September, 2013, the complainant filed SLP in the Supreme Court which was admitted and listed as an appeal. During the pendency of the appeal before the Supreme Court after some discussions between the parties it was agreed that in the event of the complainant making payment of Rs.2,37,37 ,617/- the allotment of the complainant would be restored and the conveyance deed shall be executed in favour of the complainant. A supplementary agreement to the above effect was executed between the parties. Pursuant to the supplementary agreement, the complainant made the entire agreed payment and the opposite party executed the conveyance deed of the subject flat in favour of the complainant and delivered the possession to the complainant.
It is the case of the complainant that it has been provided with a flat having super area less than what was promised and, therefore, the complainant is entitled to pro-rata refund of the amount; there is a delay in delivery of possession as per the terms stipulated in supplementary agreement; and illegal demand of PLC over the flat in question is not payable.
We have heard the arguments on maintainability of the consumer complaint. From the above-narrated history of this case it is clear that this complaint has originated from the original builder-buyer agreement between the parties which was subject matter of the dispute between the parties in consumer complaint No.307/2012. In the said matter the Co-ordinate Bench of this Commission vide order dated 2 nd September, 2012 has held that the complainant had booked the subject flat for commercial purpose and, therefore, the complainant is not a consumer. Accordingly, the complaint was dismissed. SLP against the said order was admittedly filed in the Supreme Court and the SLP which was admitted and the appeal was later on withdrawn by the complainant. The relevant order of Hon''ble Supreme Court is reproduced as under: -
"M/s Moran Plantation Pvt. Ltd. ... Appellant(s)
Versus
M/s Ambiance Pvt. Ltd. ... Respondent(s)
WITH
CIVIL APPEAL NO(s).9006 2013
CIVIL APPEAL NO(s).9157 OF 2013
ORDER
Learned counsel appearing for the appellant seeks permission to withdraw the appeal. Permission is granted. The civil appeals are accordingly dismissed as withdrawn."
On reading of the above order, it is clear that the appeal preferred against the finding of the Co-ordinate Bench of this Commission was withdrawn by the appellant, meaning thereby that the aforesaid finding has become final qua the parties to this complaint and it operates as res judicata . This Commission, only because a supplementary agreement in furtherance of the earlier builder-buyer agreement was executed, cannot sit in appeal over the order of the Co-ordinate Bench or review the same. The said judgment which has become final operates as res judicata . Therefore, we have no hesitation in holding that the complainant is not a consumer and as such it has no locus standi to file the consumer complaint.
Learned counsel for the complainant has contended that the Co-ordinate Bench was wrong in holding that the complainant is not a consumer and in support of this contention, he has referred to the judgments of Hon''ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute AIR (1995) SC 1428, Punjab University vs. Unit Trust of India & Ors. AIR (2014) SC 3670 and Karnataka Power Transmission Corporation & Anr. vs. Ashok Iron Works Pvt. Ltd. (2009) 3 SCC 240. The aforesaid judgments in our considered view are of no avail to the complainant in view of the fact that the order passed by the Co-ordinate Bench has already become final on the dismissal of appeal as withdrawn by the complainant and operates as res judicata.
In view of the discussion above, the complainant is not a consumer and has no locus standi to file the consumer complaint. Consumer complaint is accordingly rejected.