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.