Mayur Plaza Co - Operative Housing Society Ltd vs Akbarali Ali Mohammad Porbunderwala

THE only question which falls for consideration is, "Whether, the pendency of a civil suit on the same cause of action, puts a crimp in filing a complaint before the District Forum, in view of the provisions of Section 11 of C.P.Act, 1986 or Order II, Rule 2 of CPC -.

THE petitioner/complainant filed a civil suit bearing No.1896/2002 before the City Civil Court, for getting a Conveyance, including a disputed area of 2423.3 sq.mts, against their service provider/ builder, Mr. Akbarali Alimohamed Porbunderwal, Proprietor, Porbunderwala Enterprises. The complainant society also filed Writ Petition No.2850/2004 against Bombay Municipal Corporation in respect of property tax. The civil suit was decided in the year 2010.

IN the meantime, the petitioner/complainant has also filed a complaint before the consumer fora in the year 2004, wherein it made various claims. Its claim was allowed by the District Forum. Both the parties preferred separate appeals before the State Commission which were ultimately decided on 03.06.2014. The State Commission dismissed the complaint case filed by the complainant. It made the following observations : - "Learned counsel for the opponent builder further pointed out that the society had filed a suit in a City Civil court in the year 2002 itself. The society should have included all the causes of action that it had against the opponent in the suit. Learned counsel for the complainant society submitted first that the remedy to file a complaint is in addition to all other remedies and, therefore, filing of suit cannot be a bar for filing a consumer complaint. Such a contention would have been valid, had the complaint also been filed in the year 2002 itself before the suit was filed. It is notorious that if a dispute cannot be resolved before a Consumer Forum, because of its complicity, the parties are asked to avail of the remedy of a suit. Thus, a suit is capable of resolving all the disputes between the parties and is a larger remedy than a consumer complaint. Therefore, when a suit was filed and when all the causes of action which are sought to be espoused in the present complaint had also accrued before the suit was filed, there is no reason why these causes of action were not included in the suit so filed. Therefore, it would have to be inferred that the causes of action which were not raised in the suit though available were given up by the society, since the society had not sought any exemption from the Civil Court to reserve right to file appropriate proceeding in respect of those causes of action".

Although, the order passed by the State Commission cannot be faulted, yet, the counsel for the petitioner/complainant vehemently argued that the cause of action has arisen in the year 2004 and there lies no rub in filing the case before the consumer fora. She explained that had she amended the plaint, pending before the civil court, it would have enhanced the financial jurisdiction of City Civil Court. She contended that the City Civil Court was authorized to dispose of the cases having mere amount of Rs.50,000/ -.

WE are of the considered view that this is a misconception of law. All the arguments canvassed on behalf of the complainant are bereft of merit. The petitioner could have enhanced the value of the suit. If enhanced, the case would have been transferred to another higher court, having jurisdiction to try higher amount. It appears that the complaint has been filed to harass the OP, unnecessarily. They could have raised the points before the civil court where the complaint was pending, in the year 2002. It was rudimentary principle of law that a person cannot be vexed twice, for the same cause of action. The revision petition is without merit and is, therefore, dismissed.