VIVEK KHANNA vs SPAZE TOWER PVT LTD

Due to paucity of time, matter could not be heard.                  Matter adjourned to 13.09.2022  for the purpose already fixed.

In view  of judgment dated 11.11.2021 in title- M/s Newtech Promoters and Developers Pvt Ltd. Vs State of UP & Ors. Etc. passed by the  Apex Court, this forum has no jurisdiction to adjudicate the complaint in hands.                              File be transferred to the Authority. . Reader is directed to send the file immediately.

MATTER IS ADJOURNED TO 31.03.2022.

It is pointed out that proceedings of insolvency are still pending against the respondent and the matter is fixed before NCLT for today itself.                          To come for further proceedings on 21.12.2021.

This is an application filed by the respondent seeking dismissal of complaint in hands. Learned counsel for complainant  is ready for arguments, without filing any reply. Heard.                         It is submitted by learned counsel for applicant/respondent that aCivil Writ Petition titled as Rajeev Chandwani & Ors Vs   Union of India & Ors has been filed before  Hon’ble High Court of Delhi, by some persons including   present complainant, where the petitioners have sought issuing of writ, in the nature of  Mandamus or  Certiorari   or any other writ,  directing respondent No.3 (Spaze Tower Pvt. Ltd) to refund the amount, paid by the petitioners towards sale consideration of units, alongwith reasonable interest. The petitioners have levelled disparaging  remarks about the functioning  of Haryana Real Estate Regulatory Authority, Gurugram(HARERA) including this forum, stating that due to  ineffectiveness of redressal authorities, and also the failure of regulatory/supervisory authorities to perform their functions, has purportedly  coerced  the complainant to knock the doors  of this Hon’ble High Court. According to  learned counsel, this behaviour  is nothing  but audacity and temerity  on the part of complainant,  to condemn  functioning  of Authority. In doing so, the complainant  has categorically shown  lack of his faith in the legal process, invoked by himself(complainant).                 Again, apart from filing above  mentioned Civil Writ Petition, the complainant alongwith some other litigants has instituted a complaint before The National Company Law Tribunal(NCLT) New Delhi titled as Vivek Khanna & Ors Vs Space Towers Pvt Ltd. with prayer  for initiation of Corporate Insolvency  Resolution Process,  against respondent purportedly under Section 7 of The  Insolvency and Bankruptcy Code, 2016.                  Contending that the complainant has indulged in rampant and brazen forum hunting process by filing multifarious   litigations against his client i.e. respondent, to mount unwarranted  and undue pressure  on the same, with an object  that respondent will succumb  to his blackmailing tactics, learned counsel requests  to dismiss this complaint, alleging it is misuse of process of law, to file similar petitions before different authorities/courts. Learned counsel referred a case M/s Imperia Structures Ltd. Vs Anil Patni & others, Civil Appeal No.3581-3590 of 2020 where Apex Court mandated as  that The parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act(Consumer Protection Act) or file an application under the RERA Act.             The fact that aforementioned writ petition as well as complaint have been filed by some persons,  in association with present complainant is not denied  rather admitted by learned counsel for the latter. It is submitted by him that  there was no restriction  in approaching  the High Court by filing writ petition as mentioned above or the NCLT seeking  initiation of Corporate Insolvency  Resolution Process. His client was at liberty to approach different forums/courts, when law permits him to do so. To have ‘alternate’ remedy was no legal bar to exercise legal right. Learned counsel took me through a case Pioneer Urban Land & Infrastructure Ltd & Another Vs Union of India & Others 2019 SCC online SC 1005. One of conclusions/findings given by apex court was that The RERA is to be read harmoniously with the Code, as amended by the amendment Act. It is only in the event of conflict that the Code will prevail over the RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act,  1986, RERA as well as the triggering of the Code             Learned counsel again  relied upon case title as M/s  Magadh Sugar & Energy Ltd Vs  The State of Bihar & Ors Civil Appeal No.5728 of 2021 where following was observed by the Hon’ble Apex Court-                         While a High Court would  normally  not exercise  its writ jurisdiction under Article 226 of the Constitution of India, if an effective  and efficacious  alternate remedy is available, the existence  of an alternate remedy does not by itself bar  the High Court  from exercising its jurisdiction in certain contingencies.                                  The  complainant gave an undertaking  by fling an affidavit affirming that he  will not press for his relief of refund in writ petition before  Hon’ble High Court.                         Guiding principle on legal issue, raised  through this  application  can be found in Section10 of The Code of Civil Procedure-1908, which is reproduced as under:                         S.10.Stay of suit:  No court  shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between  the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit  is pending  in the same or any other Court  in(India) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (India) established  or continued  by the (Central Government) and having like jurisdiction, or before (the Supreme Court)                                              The  Apex Court in case National Institute  of MH&NS; vs C Parameshwara, AIR 2005 SC 242  held that the object  underlying section 10 CPC is to avoid parallel trials on the same issue  by two courts and to avoid recording  of conflicting  findings on issues which are directly  and substantially  in issue in a previously  instituted suit.                         The Rajasthan High Court also observed in case title as  Munnilal Vs Sarvajeet, AIR 1984 Raj 22,  that  basic object of Section 10 to protect  a person, from multiplicity  of proceedings between the same parties.             Polemic  question to be  answered here is, “even if  complainant has filed  aforesaid writ petition and  also initiated proceeding before NCLT u/a 7 of The  Insolvency  and Bankruptcy Code, 2016, can same proceed with this complaint or not.”             In M/s Imperia Structures Case (Supra) the question was whether a complainant could avail remedy under The Consumer’s Protection Act and RERA Act, simultaneously. Both of these forums were competent to grant same relief, as sought by complainant. Problem before this forum is not same. Complainant of this case has filed another complaint before NCLT. Apparently, he has not prayed for refund of amount from respondent ( as in this case). Although one of reliefs sought from Hon’ble High Court is same i.e. refund of amount but firstly, it is not a civil suit but a writ petition. Section 10, bars institution of suit, on same cause of action. Claim in a writ petition is generally not a civil right of petitioner, it depends upon discretion of the High Court or the Supreme Court, to allow writ or not. Similarly, Section 79 of RERA Act, bars ‘Civil Court’ from entertaining suit or proceedings in respect of matter, which Authority or Adjudicating Officer or Appellate Tribunal is empowered  determine, and not the High Court. Thirdly, said writ petition was filed later on, when complaint in hands was still pending. It is for Hon’ble High Court to decide if said petition is maintainable  there or not. Moreover, the complainant has given undertaking that he will not stress for said prayer, rather will withdraw prayer of refund, in said writ petition.                  Simply, to say that present complainant has alleged before the High Court of Delhi in writ petition mentioned above that due to ineffectiveness of redressal authorities and also the failure of regulatory/supervisory authorities to perform their functions, had coerced him (complainant) to knock doors of Hon’ble High Court, does not amount to disparaging remarks about functioning of authority or this forum. Apparently, the complaint in hands is pending for a long time. According to learned counsel for complainant, 21 dates of hearing have already been given in this matter.  If all  this is true  and complainant point out all this to the High Court, the same does not amount that complainant had no faith in legal process. To approach the High Court was also a legal process. In this way, I am not in consonance with learned counsel for applicant/respondent blaming the complainant for audacity, in condemning the functioning of the authority or this forum.                     Considering facts as discussed, I find no reason to dismiss the complaint in hands as prayed by the applicant/respondent.             Application in this regard is thus dismissed.             To come on 10.11.2021 for arguments.

Today the matter was fixed for arguments on an application filed by the respondent. As per learned counsel for complainant he is ready for arguments without filing any reply.                            Arguments heard on that application.                            To come on 28.10.2021 for order.

Learned  counsel for respondent has filed an application seeking dismissal  of complaint. Copy supplied to learned counsel for complainant. Learned counsel for complainant seeks some time to file reply as well as arguments. Let reply  be filed within three weeks(as requested) with copy to the respondent. 2.                       To come  on 27.10.2021 on consideration of this application.

Due to increase in the Covid-19 cases in and around the area of the Authority and lockdown in the State, the case is not being taken up for hearing. Hence, as per directions of the Hon’ble Authority, it is being adjourned to 26.08.2021 for the proceedings already fixed. 2.         Both the parties be informed accordingly through e-mail.

Though the matter was fixed for arguments with no further opportunity but a request for adjournment in all the cases pending against the respondent-builder has been received on the ground that its authorized representative Shri Chander Shekhar Sharma is suffering from fever and is unable to assist Shri J.K. Dang, Adv. Adjournment though opposed but is granted in the interest of justice. 2.        Let the matter be put up on 18.05.2021 for arguments. 3.         It is made clear that no further opportunity for arguments would be given. However, complainant is free to file written submissions prior to the date fixed with a copy to the other side.

Efforts for settlement made but without any positive result. So, let the matter be put up on the date fixed i.e. 02.04.2021 for further proceedings.

Both the parties put in appearance through their respective counsel. 2.            A perusal of the case file shows that  arguments were heard and the matter was adjourned for orders. In between the proceeding could not be proceeded due to one reason or the other. 3.          Now, an application for referring the matter in dispute to mediation forum has been filed. Though the application is being opposed but the parties should be given a chance to sit across the table and to make  an effort to settle the matter amicably. So for that purpose the matter be put up on 30.03.2021 at 2:00 PM for settlement and failing which the matter be put up on 02.04.2021 for arguments. 4.        No further opportunity shall be given.

THE MATTER IS ADJOURNED TO 10.03.2021

DUE TO PREVAILING COVID-19 PANDEMIC, THE MATTER IS ADJOURNED TO 16.11.2020

DUE TO PANDEMIC, THE MATTER IS ADJOURNED TO 24.09.2020

Due to lockdown, the matter is adjourned to 29.07.2020

BY ORDER DATED 17.03.2020 OF THE AUTHORITY, MATTER IS ADJOURNED TO 08.05.2020 FOR THE PROCEEDING ALREADY FIXED.

Case is adjourned to 18.03.2020.

CASE IS ADJOURNED TO 29.01.2020 THE ORDER OF THE AUTHORITY.

THE CASE IS ADJOURNED TO 29.11.2019

THE CASE IS ADJOURNED TO 23.10.2019

THE CASE IS ADJOURNED TO 15.10.2019

THE CASE IS ADJOURNED TO 04.10.2019

THE CASE IS ADJOURNED TO 20.09.2019

THE CASE IS ADJOURNED TO 16.08.2019

THE CASE IS ADJOURNED TO 29.07.2019

CASE IS ADJOURNED TO 03.07.2019

CASE IS ADJOURNED TO 18.04.2019.