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Judgment
The genesis and sequence of the instant revision petition is this. Sh. Raju Solanki of M/s. Suraj & Associates, OP, represented to Mr.Satishkumar Omprakash Sethi, the complainant, that the OP was going to develop a Society on a plot of land located at Plot No.193, Bhagwati Niwas, Jawahar Nagar, bearing CTS No.598.29 sq.mtrs., Goregaon (West), Mumbai ? 400 062, situated at Village Taluka - Borevalli. The OP purchased the said plot of land from the legal heirs of the
complainant. The OP did not pay the consideration for the said land/building to the complainant as his share.
Consequently, complainant filed a suit bearing No.1942/2011 against the OP before the City Civil Court, Mumbai. In the said Suit, ad-interim order was passed in favour of the complainant for not creating third-party interest by the OP, in the suit premises. In the year 2012, the said suit was decreed as per the consent terms entered into between the parties. The consent decree dated 04.04.2012 has been placed on record. In the consent decree, it was agreed between the parties that the complainant is a lawful owner of plot No.1 & 4, situated at Bhagwati Niwas, Jawahar Nagar, bearing CTS No.598.29 sq.mtrs., Taluka - Borivali, District Mumbai .
The above said consent terms were drawn on 06.03.2012, where, OP had agreed to enter into agreement for providing new premises bearing Nos. 21 & 24 in lieu of old premises bearing Nos. 1 & 4, located at Bhagwati Niwas, Jawahar Nagar, bearing CTS No.598.29 sq.mtrs., Goregaon Town. On 12.03.2012, agreement for providing alternative accommodation was entered into and executed before the Sub-Registrar of Assurances at Borivali, Mumbai. The complainant submits that as per the Agreement, the OP would provide permanent alternate accommodation on owner-basis and free of cost, namely, flat Nos. 21 & 24 of corporate area covering 400 sq.ft., each, located at 2 floor, as shown in the floor plan. This was in lieu of surrendering the tenancy nd rights with respect to the flat Nos. 1 & 4, located at Bhagwati Niwas, Jawahar Nagar, bearing CTS No.598.29 sq.mtrs., Goregaon (West), Mumbai ? 400 062, in favour of OP.
On 04.04.2012, the OP promised the complainant that it would follow all the norms and fulfill all the promises made with respect to the re-development. It also gave an undertaking in Clause 6 of the consent terms. Accordingly, the complainant was made to vacate the premises bearing flat Nos. 1 & 4, located at Bhagwati Niwas, mentioned above. OP also gave monthly rent amount in advance for 11 months and promised to pay increased rent amount by 10%, till new accommodation was handed over to the complainant. From March, 2012, OP started carrying out redevelopment activity at the said suit premises, firstly, by demolishing the existing structure and re-building the premises with a promise to provide alternate accommodation in the new premises in lieu of the old premises.
In July, 2014, the said suit premises was to be redeveloped and OP1 was liable to handover the possession to the complainant by first week of July, 2014. However, the complainant stopped paying rent amount to the OP since February, 2014 onwards. In April, 2014, the OP informed the complainant that he would not handover the possession of the premises Nos. 21 & 24 unless and until the alleged loss of Rs.70.00 lakhs is paid to him. The alleged said amount was incurred by the OP at the time of re-development of the project. He contended that he would receive the said amount by selling the above said flats or flat Nos. 13 & 14 which were to be handed over to the complainants 3 & 4 who were arrayed in the suit namely, Pradeep Omprakash Sethi & Harish Omprakash Sethi.
The grievance of the complainant is that it OP is not handing over the new premises in lieu of old premises which he had promised as per the consent decree dated 04.04.2012.
It is, however, surprising to note that instead of knocking at the doors of the civil court, the petitioner filed a complaint before the State Commission. He moved an application before the State Commission and prayed for direction against the OP to pay to the complainant arrears of monthly rent, quantified at Rs.36,832/- p.m. from the month of March, 2014, onwards, till date, in pursuance of the agreement dated 12.03.2012. The complainants also sought injunction to restrain the OP from selling, alienating third-party interest/rights in respect of flat Nos. 21 & 24. It is also surprising to note that the State Commission has partly allowed this complaint. It has restrained the OP from creating third-party interest.
Aggrieved by that order, the complainants have filed this revision petition before this Commission, with the following prayers :- " A) This Hon''ble court be graciously pleased to allow the revision application and modify the order of the State Commission, Maharashtra (Mumbai) in the above referred matter.
B) Pending the hearing and final disposal of the consumer complaint, the respondent be directed to handover the possession of the premises bearing No.21 & 24 situated at Suraj Bhagwati Residency, located at Plot No.193, Jawahar Nagar, Goregaon (West), Mumbai - 400 062 to the applicant.
C) Pending the hearing and final disposal of the consumer complaint, the respondent be directed to pay arrears of monthly rent amount of Rs.36,832/- from March, 2014 onwards till date and further rent amount to be paid as per clause No.3 of the agreement dated 12.03.2012.
D) Pending the hearing and final disposal of the consumer complaint, no third-party rights be created by the respondent into the said premises bearing Nos. 21 & 24 situated at Suraj Bhagwati Residency, located at Plot No.193, Jawahar Nagar, Goregaon (West), Mumbai - 400 062.
E) Pending the hearing and final disposal of the consumer complaint, the cost of litigation be paid to the applicant.
F) And any other order and directions as the nature and circumstances of the case be required in the interest of justice and equity".
We have heard the counsel for the petitioners. He vehemently argued that all the terms and conditions detailed in the consent decree, stand complied with. He submits that he has opted for the alternative remedy to this Consumer Court. Again, he contends that he will have to file a case
against the OP, either in the civil court or in this Commission, where the alternative remedy is available.
We are of the considered view that the complainants have made a clumsy attempt in preferring the case before the consumer fora. The complainants are ill-advised to sue the respondents in the Consumer fora. This is an indisputable fact that the consent decree between the parties already stands passed vide order dated 04.04.2012. That order has attained finality. The matter should have been raised before the Executing Court. The consumer fora cannot pass a different or conflicting decree. Even the Executing Court (Civil) cannot go behind the decree. The filing of this case is an abuse of process of the court. The Civil Court has already seized of the matter and filing the case on the same cause of action before this Commission is not permissible. Under these circumstances, it is difficult to fathom, how, a consumer fora can arrogate to itself, the powers which it does not possess. There cannot be two conflicting judgments by different two fora. The State Commission also cannot go behind the decree passed by the Civil Court. Consequently, we hereby dismiss the revision petition, in limine .