Vikas B.Patharkar vs Aditya

JUSTICE V.B. GUPTA, PRESIDING MEMBER In this appeal, there is challenge to order dated 18.08.2011, passed by State Consumer Disputes Redresdsal Commission, Mumbai ( for short as ? State Commission? ).

BRIEF facts are that appellant/complainant desired to purchase one flat having carpet area of 960 sq. ft. with attached terrace to be constructed by respondent No. 1- opposite party. Total price of the flat was being Rs. 37,000,00/-. Appellant paid Rs. 10,00,000/- as earnest money to respondent no. 1 as part consideration towards booking amount for purchase of flat no. 402, for which respondent no. 1 issued a receipt dated 11.2.2009 in favour of appellant. However, to the shock and surprise of the appellant, on 11.3.2011 he realized that respondent no. 1 has agreed to sell the suit premises to a rank third party. Accordingly, appellant served a notice through his Advocate calling upon respondent no. 1 to hand over possession of the premises in question. Thereafter, on 24.3.2011, appellant filed a Consumer Complaint against respondents for deficiency in service and unfair trade practice before State Commission. 4. In its complaint, appellant sought the following reliefs;- a) That it be declared that Opposite Party Nos. 1 to 5are guilty of deficiency in service and unfair trade practice. b) That the Opposite Party Nos. 1 to 5 be directed to hand over vacant physical possession of the flat no.403 having carpet area of 960 square feet along with an attached open terrace admeasuring 162 sq. feet on the fourth floor of the Building named Suruchi standing on land Bearing C. T. S. Nos. 900 to 903 corresponding to Old Survey No. 5, Hissa No. 1 situate, lying and being at M. C. Road, Opp. Kopri Garden, Village Naupada, Thane, taluka and District Thane, to the Complainant completed in all respects. c) That the Opposite Party No. 1 to 5 be directed to execute and get duly registered an Agreement for sale in respect of flat no. 403 having carpet area of 960 square feet along with an attached open terrace admeasuring 162 sq. feet on the fourth floor of the Building named Suruchi standing on land Bearing C. T. S.Nos. 900 to 903 corresponding to Old Survey No. 5, Hissa No. 1 situate, lying and being at M. C. Road, OPP. Kopri Garden, Village Naupada, Thane, Taluka and District Thane, d) That the Opposite Party No I be ordered and directed to pay to the Complainant an amount of Rs. 30,00,000/- with interest thereon from the date of filing of this Complaint till the date of payment at the rate of 18% per annum by way of damage and compensation for the financial loss and severe mental agony and frustration suffered by the Complainant. e) That pending the hearing and final disposal of this Complaint, any suitable person be appointed as an receiver of flat no. 403 having carpet area of 960 square feet along with an attached open terrace admeasuring 162 sq. feet on the fourth floor of the Building named Suruchi attending on land Bearing C. T. S. Nos. 900 to 903 corresponding to Old Survey Road, OPP. Kopri Garden, Village Naupada, Thane, taluka and District Thane, with all powers under Order XL Rule 2 of Code of Civil Procedure 1908 including power to sell. ???f) That pending the hearing and final disposal of this Complaint, Opposite Parties No. 1 to 5, and their respective agents and servants be restrained by any order of injunction of this Hon?ble Commission from dealing with, transferring disposing off, alienating in any manner, creating third party rights in, including third party into, adding or altering in any manner, and/or parting with possession, partly or fully, in respect of the flat No. 403 having carpet area of 960 square feet along with an attached open terrace admeasuring 162 sq. feet on the fourth floor of the Building named Suruchi standing on land Bearing C. T.S. Nos. 900 to 903 corresponding to Old Survey No. 4, Hissa No. 1 situate, lying and being at M. C. Road, Opp. Kopri Garden, Village Naupada, Thane, taluka and District Thane, in favour of Opposite parties nos. 6 to 7. g) That in the even if this Hon?ble Commission comes to Conclusion that the opposite parties Nos. 1 to 5 have already granted physical possession of the flat no. 403 having carpet area of 960 square fee along with an attached open terrace admeasuring 162 sq. feet on the fourth floor of the Building named Suruchi standing on land Bearing C. T. S. Nos. 900 to 903 corresponding to Old Survey No. 5, Hissa No. 1 situate, lying and being at M. C. Road, Opp. Kopri Garden, Village Naupada, Thane, taluka and District Thane, so the opposite parties Nos. 6 to 7 before filing of this Complaint, then in that event this Hon?ble Commission be pleased to grant to the Complainant, an order directing the opposite parties nos. 6 to 7 to maintain status quo in respect of flat no. 403 having carpet area of 960 square feet along with an attached open terrace admeasuring 162 sq. feet on the fourth floor of the Building named Suruchi standing on land Bearing C. T. S. Nos. 900 to 903 corresponding to Old Survey No. 5, Hissa No. 1 situate, lying and being at M. C. Road, Opp. Kopri Garden, Village Naupada, Thane, taluka and District Thane, pending the hearing and final disposal of the complaint. ?

Respondents put their appearance before the State Commission and filed their affidavit opposing the admission of complaint itself.

ON 18.08.2011, appellant filed an application for withdrawal of the complaint seeking permission to file a fresh before the appropriate Commission/Forum. Vide impugned order, State Commission permitted simple withdrawal but without any liberty to file a fresh complaint on the same cause of action before the Consumer Fora.

IT is contended by learned counsel for the appellant that impugned order has been passed without any proper application of mind in as much as State Commission has erred in not taking into consideration the facts and circumstances set out in the application for seeking withdrawal of the complaint with liberty to file a fresh before the appropriate Forum. Other contention is that since complaint could not be amended, as in amending the complaint whole structure of the complaint would be changed. Thus, application seeking permission with liberty to file a fresh before the appropriate Fora/Commission was filed. Under these circumstances, impugned order is liable to be set aside. Averments in application for withdrawal of the complaint read as under; "1.The Applicant is the original Complainant who has filed the present complaint against the Opponents for deficiency of service on the part of the Opponents by and giving possession of the agreed flat to the Complainant despite having received part consideration from the Complainant and the same is pending disposal. The Applicant states that till date the said complaint is not admitted by this Hon?ble Commission. 2. The Applicant states that during the hearing for admission of the said complaint it is noticed that some of the averments made in the complaint are out of context as also the prayers sought for are beyond jurisdiction of this Hon?ble Commission. The Applicant states that the said averments mentioned in the complaint were not understood by the Applicant in the context in which they are made. 3. The applicant states that since the averments in the complaint are out of context, the whole structure of the complaint needs to be changed. 4. In the circumstances the applicant humbly prays that the Applicant/Complainant be allowed to withdraw the present complaint with liberty to file a fresh before the appropriate Commission/Forum?.

RELEVANT portion of impugned order reads as under; " Heardboth sides. Today Complainant files pursis for withdrawal of the complaint (marked at Exh- X - 1) with liberty to file fresh one on the same cause of action before the appropriate Forum/ Commission. This application is opposed by the Opponent stating that it had no objection for simple withdrawal but had taken objection to grant the liberty, as prayed. It is not a case of presenting the consumer complaint before the Consumer Fora which has no territorial or pecuniary jurisdiction and therefore, there is no question to withdraw this consumer complaint for being presented it before the appropriate Fora. It is submitted on behalf of the Complainant that the dispute covers complex issues and all concern need to be impleaded. In these circumstances, the complainant wanted liberty to file appropriate proceedings before the Court other than the Consumer For a. Thus we permit simple withdrawal but without any liberty to file fresh complaint on the same cause of action before the Consumer Fora. Hence we pass the flowing order: Complaint stands dismissed as withdrawn. No order as to the costs?.

IN the present appeal grounds no. 14 and 15 as pleaded by appellant are relevant, which reads as under; "14. The appellant states that during the hearing for admission, the appellant came to know that the complaint filed on record was filed on wrong footing and on wrong motion which was because of the statement of the Respondent No. 1 to 5 made by them in their reply to the legal notice of the Appellant. Accordingly, on 18-08-2011, filed an application seeking withdrawal of the complaint with liberty to file a fresh before the appropriate Forum /Commission. The Appellant states that the said application seeking withdrawal of the complaint was filed by the Appellant before the Hon?ble Commission admitted the said complaint. Thus the said application for withdrawal was filed by the Appellant on preliminary stage when the complaint was not admitted. 15. The Appellant states that when the said application came up for hearing, the Respondents 1 to 5 had given their no objection for withdrawal of the complaint, but strongly opposed for giving liberty to file a fresh complaint. The Appellant argued before the Hon?ble Commission that the complaint filed by the Appellant was filed for the claims in respect of flat no. 403 instead of flat no. 402 which was agreed to be sold to the Appellant. The Appellant states that the said claim was made in the complaint because of the statement made by the respondent 1 to 5 in reply to the notice that they have adjusted the payment made by the Appellant in the transaction of flat no. 403. Also the area of the flat no. 403 is the same area as was agreed of flat no. 402. Now if the complaint is to be amended, the whole structure of the complaint will change and the Appellant have to amend the whole complaint. Moreover since the complaint is at preliminary stage and is yet to be admitted the Appellant be permitted to withdraw the complaint and file the same before the appropriate Commission?.

Interestingly, for reasons best known to the appellant, he has not placed on record reply to his legal notice, sent by the respondents (as mentioned in para no. 14 of the grounds of the appeal)

?All the issues which have taken up in the present appeal, were nowhere mentioned in the application for withdrawal of the complaint. By way of present appeal, appellant wants to introduce an altogether a new case, which cannot be permitted under the law. A valuable right has already accrued to the respondents due to the withdrawal of the complaint.

SINCE, there was no technical defect in the complaint filed before the State Commission, it rightly refused to give liberty to file a fresh complaint on the same cause of action. Accordingly, we find that there is no infirmity or ambiguity in the impugned order passed by the State Commission. Present appeal is devoid of any merits and same is hereby dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand only).

APPELLANT is directed to deposit the costs of Rs. 10,000/- (Rupees Ten Thousand Only) by way of a cross cheque in the name of "Consumer Legal Aid Account? within four weeks from today. In case, costs are not deposited within the prescribed period, then appellant shall be liable to pay interest @ 9% p.a., till realization. List on 2nd March, 2012, for compliance.