Novous Abasan Private Ltd. vs Dakshineswar Saptarshi Welfare Society

THE respondent Kamarhati Municipality entered into an agreement with the petitioner before us namely M/s. Novous Abasan Private Ltd for raising multi -storey building in Kolkata. After getting the building plan sanctioned from the municipality, a multi -storey building complex namely Saptarshi Building Apartment was developed by the petitioner. The flats constructed by the petitioner in the aforesaid complex were sold to the members of the complainant Society. The case of the complainant is that after taking possession of the flats, it came to their knowledge that the petitioner company had violated the sanctioned plan dated 24.10.2000 and had raised some additional construction in violation of the said plan. As a result, the common areas and services, which were to be provided to the members of the complainant Society, were seriously compromised. It was alleged that the petitioner company had sold parking space to outsiders, who were not the flat owners, in violation of the Municipal Act and building bye -laws, as a result of which, the flat owners were not left with adequate space for parking their cars. It was further alleged that the lifts installed in the building had not been handed over to the flat owners, the instalment of electric meter and wires were faulty being in dangerous conditions, proper space for standby water pump was not provided and there were several incomplete works in the building. Several other allegations were made in the complaint before the petitioner before this Commission. The complainant Society sought the following directions in the complaint filed before the State Commission: - ''''a) An order for directing the all opposite parties jointly and severally to prove all sorts of common services and areas as the opposite parties have deliberately neglected and failed to perform their part of duties and performance as per terms of the Agreement for Sale, Deed of conveyance and Sanctioned building plan more fully and specifically described in schedule below in favour of the petitioners; and

b) An order for directing the all opposite party no. 1 to 2 jointly or severally to pay Rs. 99,90,000/ - (Ninety Nine lacs Ninety Thousand only) as compensation for harassment, mental agony and also for negligent act and conducting the deficiency in service; and

c) An order for directing the all opposite parties jointly or severely to take the completion certificate with regard to said multi -storeyed building including all flats as per sanctioned plan from the local Municipality and to hand over the same to the petitioners ''''

BEFORE filing the aforesaid complaint, the complainant Society had filed a suit for permanent injunction making several allegations against the petitioner company. The allegations were more or less in line with the allegations made in the complaint. The prayer made in the Civil Suit were to restrain municipality and the petitioner company from delivering the property shown in schedule ''b '' and ''c '' to the plaint to a third party and from curtailing the amenities of the apartment owners. Another relief sought in the Civil Suit was to restrain the petitioner company from collecting the maintenance charges and doing any mischievous act or acts in running of the Society. The property described in schedule ''b '' was the ceremonial house in the middle of the apartments and swimming pool, whereas the property described in schedule ''c '' was parking space on the ground floor of the apartments.

THE petitioner company filed an application before the State Commission, seeking dismissal of the complaint on the ground that in view of the pendency of the Civil Suit, the said complaint was not maintainable. The application was opposed by the complainant Society primarily on the ground that the cause of action as well as the reliefs claimed in the complaint were different from the cause of action and the reliefs claimed in the said Suit. The State Commission, vide impugned order dated 21.05.2014, dismissed the application. Being aggrieved from dismissal of its application, the petitioner company is before us, by way of this revision petition.

A careful comparison of the averments made in the Civil Suit with the averments led in the complaint leave no doubt that the grievances made by the complainant Society in the Civil Suit as well as in the complaint are almost identical. The primary grievance made by the Society are that: - 1) The petitioner company made constructions in violation of the sanctioned building plan and the applicable Municipal Act and bye -laws.

2) The petitioner company was trying to transfer or alienate swimming pool and other amenities, which were meant for the flat owners.

3) The petitioner company was collecting maintenance charges from the flat owners and interfering with collection of such charges by the complainant Society. Another grievance made by the Society was with respect to the curtailment of the parking space meant for them by selling the said space to the outsiders, who were not the flat owners in the aforesaid building.

IN our view, it would be necessary, for the Civil Court, where the above referred Civil Suit is pending as well as for the State Commission, where the complaint filed by the Society is pending to go into the above referred disputed question of fact, before a final view is taken by the Civil Court/the State Commission, as the case may be on the prayers made in the Civil Suit/Complaint under the provisions of consumer Protection Act. Though, the reliefs claimed in the Civil Suit are not identical to the reliefs claimed in the complaint, the cause of action i.e. the facts which the complainant will have to prove in order to succeed in the complaint are more or less identical to the facts which it will have to establish in the Civil Suit. If, the Civil Suit as well as the complaint, filed before the State Commission are allowed to proceed simultaneously, there is a likelihood of conflicting finding of facts being rendered by the aforesaid two Forums. Therefore, it would be necessary, in order to avoid conflicting finding of facts being rendered by the two Forums, that either the Civil Suit or the complaint filed before the State Commission is stayed. Considering that the findings of the Civil Court rendered in the Civil Suit between the parties would be binding on the State Commission, we are of the view that the complaint pending before the State Commission should remain stayed, during the pendency of the Civil Suit, which the complainants Society has filed before the learned Civil Judge, Senior Division at Barasat, District Parganas, North, West Bengal. We accordingly, dispose of the revision petition by directing that the proceedings in the complaint before the State Commission shall remain stayed during the pendency of the above referred Civil Suit. It shall be open to the State Commission to proceed with the hearing of the complaint, after the Civil Court renders its final decision in the Civil Suit.