Sher Bahadur Singh vs Paramount Villas Pvt. Ltd. & Anr

This appeal has been filed by the appellant Sher Bahadur Singh against the order dated 08.09.2016 passed by the State Consumer Disputes Redressal Commission, Delhi, (in short 'the State Commission') in CC No.347 of 2015. The State Commission has dismissed the complaint on the ground that the complainant is doing forum shopping and the complaint was not maintainable before the State Commission.

Brief facts of the case are that the appellant had booked a residential unit with the opposite party. However, there was some demand of interest from the opposite party and the appellant filed a consumer complaint bearing No. 90 of 2013 before the District Consumer Forum, Gautam Budh Nagar, U.P ( in short 'the District Forum'). The District Forum vide its order dated 30.04.2015 dismissed the complaint. This complaint was filed prior to the due date of possession, which was in the year 2013. After the order of the District Forum, the opposite party treating it as if the District Forum has upheld the demand of interest and as no interest or further amount was paid by the complainant, cancelled the allotment vide letter dated 19.05.2015. The complainant then filed another complaint against cancellation of allotment by the opposite party before the State Consumer Disputes Redressal Commission, Delhi as the registered office of the opposite party is in Delhi. The State Commission after hearing both the parties has decided that the complainant is involved in forum shopping as the earlier complaint was filed before the District Forum, Gautam Budh Nagar, U.P. and no appeal was preferred by the complainant against that order. He has again filed complaint before the State Commission, Delhi.

Heard the learned counsel for both the parties and perused the record. The appellant in person states that the two complaints were filed on different causes of action. The earlier complaint was filed for cancelling the notice of demand raised by the opposite party because at that time neither the due date had come for possession nor there was any issue relating to possession. The second complaint was filed before State Commission, Delhi on the cause of action arisen by the cancellation of the allotment letter by the opposite party on 19.05.2015. Thus, it is wrong to say that the complainant is involved in forum shopping. The Complainant has every right to file complaint before the State Commission, Delhi provided the jurisdiction is satisfied.

On the other hand, learned counsel for the respondent stated that the District Forum had dismissed the complaint filed by the complainant and therefore, it confirmed the demand of interest by the opposite party. Even after the order of the District Forum, the complainant did not pay interest and therefore, the allotment was cancelled. After cancellation of the allotment, the flat has been sold to a third party. The complainant did not prefer any appeal against the order of the District Forum before the State Commission, U.P. The State Commission, Delhi has dismissed the second complaint filed by the complainant on the ground that the complainant is choosing the forum as he first filed complaint before the District Forum, Gautam Budh Nagar, U.P and then he has filed second complaint against the same opposite party before the State Commission, Delhi. The State Commission's order is totally legal and therefore, the appeal needs to be dismissed.

I have carefully considered the arguments advanced by both the parties and have examined the record. The first complaint which was filed before the District Forum being CC No.90/2013 was filed for cancelling the demand of interest which according to the complainant was illegally made and indicated unfair trade practice. It is seen from the record the following prayers were made in the complaint filed before the State Commission:

"a) To cancel the cancellation letter dated 19/05/2015 and provide the possession of villa.

b) To waive off the interest Rs.2,02,663/- charged in the demands which is illegal.

c) To pay a sum of Rs.1,20,175/- on account of delay from June 2014 on possession till today with interest.

d) To pay Rs.Five Lac to the complainant towards loss of peace and mental agony suffered by the complainant due to negligence and deficiency in service and false commitment to his customer.

e) To pay costs of the complaint.

f) To pass an other such order or orders as this Hon'ble Forum may deem fit and proper under the circumstances of the case and in the interest of justice."

Clearly this complaint was filed prior to the due date of possession and then the question of possession was not there. The only cause of action was the demand of interest by the opposite party. After the District Forum order, the opposite party cancelled the allotment vide their letter dated 19.05.2015 and this created a fresh cause of action for the complainant as would be clear from the prayers made in the second complaint being No.347/2015, which was filed before the State Commission, Delhi.

Just filing a complaint against the same opposite party does not debar the complainant from filing another complaint. The main issue to be seen is whether the second complaint has been filed for same relief or on the same cause of action. It is quite clear that the second complaint has been filed by the complainant on a different cause of action, which has been cancellation of the allotment by the opposite party, whereas the first complaint was filed after being aggrieved by the demand of interest by the opposite party. Clearly, two complaints were maintainable. For each, it is to be seen whether the complaint has been filed with a forum having territorial and pecuniary jurisdiction. Both the parties have agreed that the registered office of the respondent is in Delhi and therefore, Delhi State Commission will have the territorial jurisdiction to consider the complaint filed by the complainant. The cost of the flat being Rs.44,18,070/- clearly justify the pecuniary jurisdiction of the State Commission.

It has been pointed out by the learned counsel for the respondent that even in the prayer in the second complaint the issue of interest has been raised again and therefore, it is not totally an independent complaint totally different from the first one. As the District Forum order dated 30.4.2015 had become final, the same ground cannot be raised in the second complaint. I agree to this objection of the respondent.

Based on the above discussion, the order dated 08.09.2016 passed by the State Commission in Consumer Compliant No.347/2015 is set aside and the State Commission is directed to decide the same complaint No.347/2015 filed by the complainant on merit except that the following prayer in the complaint shall not be considered by the State Commission:-

"b) To waive off the interest Rs.2,02,663/- charged in the demands which is illegal."

Parties to appear before the State Commission, Delhi on 31.10.2019. Till that time, status-quo in respect of the concerned property shall be maintained.