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Arun Khanna vs. Smt. Shashi Sharma & Ors dated 2012-09-04

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 2321 OF 2012
 (Against the order dated 28.02.2012  in Complaint No. C-09/284 of the
Delhi State Consumer Disputes Redressal Commission, Delhi)
WITH
I.A. No. 1 OF 2012
(Stay)
 
Arun Khanna
S/o Late Hira Lal Khanna
H.No.5/3, Punjabi Bagh Extn.
New Delhi                                                                                 ..... Petitioner    
Vs.
1.  Smt. Shashi Sharma
W/o Vijay Kumar Sharma
H.No. 3469, Raja Park
Rani Bagh, Shakur Basti
Delhi
 
2.  Smt. Madhu Sharda
W/o Late Sh. Inder Mohan Sharda
H.No. 52, Sector-19A, Chandigarh
Presently at :
5/3, Punjabi Bagh Extn
New Delhi
 
3.  Smt. Renu Sharma
W/o Sh. Kamlesh Kumar
H.No. 5/3, Punjabi Bagh Extn
New Delhi
 
4.  Ms. Ritu Sharma
D/o Late Sh. Om Parkash Sharma
H.No. 5/3, Punjabi Bagh Extn
New Delhi
 
5.  Vinu Kumar Sharma
S/o Late Om Parkash Sharma
H.No. 5/3, Punjabi Bagh Extn
New Delhi                                                                       ….  Respondents
 
BEFORE:
      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
      HON’BLE MR. VINAY KUMAR, MEMBER
 
 
For the Petitioner       :     Mr. N. Prabhakar, Advocate     
 
For the Respondents :     Mr. Jagdish Vatsa, Advocate with
                                           Mr. Sudhir Sharma, Advocate
                                           
                                                      
Pronounced on_4th  September, 2012
 
ORDER
 
 
JUSTICE J.M. MALIK
 
1.      The principal question in this case, which pivots round the controversy  is, “Whether  the pendency of a civil suit  is  a  bar  to the filing of a complaint, under Section 12/15 of the Consumer Protection Act, 1986?”
 
2.      The parties entered into an Agreement wherein it was agreed that petitioner/Builder  would  construct  first and second floors  and  renovate the  ground floor of the premises, bearing No. 5/3, Punjabi Bagh Extn, New Delhi,  belonging to the  complainants who are five in number and are siblings.  The complainants sent notice dated 13.03.2009 to the petitioner.   In lieu of that, the OP was to have with him the First Floor and he was to supply ‘C’ and ‘D’ Forms and the Completion Certificates to the complainants after obtaining them from the concerned authorities.  The petitioner constructed and occupied the First Floor but left the Second Floor unfurnished and he did not  renovate the Ground Floor.  Thereafter, the complaint was filed where a sum of Rs.43,10,000/- along with interest @ 18% p.a. from the date of filing of this complaint till its realization was claimed.
 
3.      The petitioner contested this case and  pleaded that the State Commission should  dismiss their case on two grounds.  Firstly, that there was pendency of the civil suit on same allegation/cause of action and relief and secondly,  the present proceedings are summary in nature, which involve complex questions of facts and can therefore be decided after  recording  elaborate evidence of the witnesses, which may be led only before the Civil Court.  The learned State Commission dismissed these  objections vide order passed on 28.02.2012.
 
4.      We have heard learned counsel for the parties at length.  The learned counsel for the petitioner vehemently argued that the respondents cannot file the case under the Consumer Protection Act, 1986 on the same cause of action and they have borrowed the paras  from the civil case and inserted the same in this complaint.  He pointed out that their main purpose is to save court fee and harass the petitioner unnecessarily.  He further argued that their purpose is to rob off the petitioner with his hard-earned money.  He pointed out that the learned Trial Court has placed reliance on the Delhi High Court authority reported in Hindustan Motors Ltd. Vs. Amardeep Singh Virk & Ors, 161 (2009) Delhi LT 88 (DB),  where the facts are altogether different.  The same is not applicable to this case.  He contended that in other authorities, a contrary view  was taken.  In support of his case, he had cited few authorities before us.
 
5.      In M/s. Guru Nanak Plastic Industries Vs. Chairman, Rajasthan State Electricity Board, Jaipur, the National Consumer Disputes Redresssal Commission vide its order dated 21.03.2003 in FA No. 28/1996 in complaint case No. 69/93 of the State  Commission, Rajasthan, it was held  that
“9. Before we conclude, we may add that it has become a practice for many complainants in the complaints to claim damages which has no co-relation with the loss suffered and these inflated amounts are stated with a hope that some amount would become payable.  This a practice which must be discouraged”.                                               
 
6.    Learned  counsel  also cited another case of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad, reported  in Niranjanbhai Choksi Vs. Kanaknidhi Corporation & Ors., I (2004) CPJ  4. 
7.      Lastly he cited  two  authorities,  reported  in  Bihar School Examination Board Vs. Suresh Prasad Sinha, AIR 2010 SC 93 and Bharat Petroleum Corporation Ltd. & Anr. Vs. N.R. Vairamani & Anr, AIR 2004 SC 4778(1).
 
8.      In the  last authority, it was held that :
“9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in which the fact situation of the decision on which reliance is placed.  Observations of courts are neither to be read as Euclid’ theorems  nor as provisions of the statute and that too taken out of their context.  These observations must be read in the context in which they appear to have been stated.  Judgments of Courts are not to be construed  as statutes.  To interpret words, phrases and provisions of a statute, it may become  necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define.  Judges interpret statutes, they do not interest judgments. They interpret words of statutes; their words are not to be interpreted as statutes.  In London Graying Dock Co. Ltd. Vs. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed:
     “The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J, as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge”.
 
9.      All these arguments  have left no impression upon us. The authority reported  in Hindustan Motors Ltd. Vs. Amardeep Singh Wirk & Ors, 161 (2009) Delhi LT 88 (DB),  is based on several authorities of the Supreme Court of India. Para No.1  of the said judgment is reproduced below:
          “The issue which arises for our consideration in the present appeal is whether the proceedings before the Consumer Forum should remain stayed  and await the decision of the outcome of the proceedings involving similar issues pending before this High Court.  The present appeal arises out of the order dated 05.03.2009 passed by the learned Single Judge.  The appellant (original petitioner in the writ petition) claimed a direction to set aside an order dated 06.11.2007 passed by the State Consumer Disputes Redressal Commission, in a complaint preferred by the respondent No.1 (original respondent in the writ petition).  The basis of the writ petition was that substantially similar, if not identical issues are pending trial in this Court in Civil Suit No. 1700 of 2005 (Jatinder Kaur Wirk Vs. Mitsubishi Motor Corporation & Ors.).  The respondent No.1 claimed to have purchased a Mitsubishi Pajero, manufactured by the appellant.  The vehicle met with an accident while being driven by respondent No.1’s brother who sustained fatal injuries and died.  As per the respondent No.1, the vehicle had manufacturing defects and on the ground of those and other allegations, he claimed compensation.  The wife of respondent No.1’s  brother, Mrs. Jatinder Wirk filed a suit before this Court, claiming inter alia, damages for negligence against the appellant. 
            Para No.13 of the said judgment quoted in another authority reported in  Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243, its relevant portion is reproduced here as under:
            “To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative  intention, it was enacted, to provide for the protection of the interest of consumers.  Use of the word ‘protection’  furnishes key to the minds of makers of the Act. Various definitions and provisions…..”.
 
10.    Another authority relied upon by the Delhi High Court, is Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996) 6 SCC 385.
 
11.    Again, in another authority of the Hon’ble Apex Court, reported in           E.I.C.M. Exports Ltd. Vs. South Indian Corporation (Agencies) Ltd. & Anr., AIR 2009 SC 3127, para No.9, further supports the case of the respondent, which is reproduced below :-
“9. The word “suit” has a technical meaning which denotes proceedings instituted under section 9 of the Civil Procedure Code, 1908.  All legal proceedings in the country are not suits.  There are petitions/ complaints/ applications before various Tribunals or authorities but they are not suits as per Section 9 of the CPC.  In our opinion, a complaint before Consumer Forum is not a suit, and hence, the Indian Carriage of Goods by Sea Act, 1925, is not applicable to the facts of the present case and the Consumer Protection Act, 1986, will only be applicable”.
 
12.    Another authority relied upon by the Delhi High Court is Faqir Chand Gulati Vs. Uppal Agencies Private Limited & Anr., (2008) 10 SCC 345.  Para 34, of the said judgment is as follows:-
          “We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages.  On the other  hand, where the builder commits breach of his obligations, the owner has two options.  He has the right to enforce specific performance and/or claim damages by approaching the civil court.  Or he can approach the Forum under the Consumer Protection Act, for relief as consumer, against the builder as a service provider.  Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or  other remedy that may be available to the complainant”.
 
14.    Consequently,  we  find  that  the  revisionist  has  in vain attempted to kick  again  the pricks.  The  revision  petition is, therefore, dismissed with costs which are quantified at Rs.10,000/- which be deposited  with Consumer Legal Aid Account of  this Commission.  Its proof be produced before the State Commission on 18.09.2012, when the case will proceed further as  per law on merits.  Copies be sent to both the parties as well as to the State Commission.
 
 
..…………………..………J
    (J.M. MALIK)
      PRESIDING MEMBER
 
                                                               
  ……………….……………
                                                        (VINAY KUMAR)
                                                                           MEMBER
 
 
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