Petitioners/Complainants have filed this petition under Section 21(b) of Consumer Protection Act, 1986 (for short, Act) against impugned order dated 1.7.2013, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, State Commission) in First Appeal No.127 of 2012.
2. Brief facts are that Petitioner No.1/Complainant No.1 is father of Petitioner No.2/Complainant No.2 and they are owners of house bearing Nos.1-68 and 1-67 in plot nos.38 and 37 admeasuring 319 sq. yards respectively. One Vimala Devi is owner of plot No.36 admeasuring 319 sq. yds.
3. Father of Vimala Devi introduced respondent as a reputed builder who suggested that if the plots were developed jointly, they will get large share instead of developing individually. Therefore, petitioners nos.1 and 2, Vimala Devi and respondent entered into a development agreement and agreed to share 40% to petitioners no.1 and 2 in their site and 40% to Vimala Devi for her site and remaining 60% to the developer. The project has to be completed within 18 months and respondent agreed to allot flats No.1 to 4 on 4 floor and flats No. 3 to 5 on the 2 th nd floor falling to the share of both petitioners. In respect of clause 18 and 26 of the agreement, respondent agreed to pay damages @ 4/- per sq. ft. per month for total built up area including common areas. During the course of construction, the petitioners requested the respondent to do certain extra works and respondent demanded Rs.1,00,000/- and they paid the said amount. The respondent failed to complete the construction of the flats and was constructing flats falling to the share of petitioners, at a snail pace. Hence, petitioners refused to register the flats unless respondent complete the flats falling to their share and handover the possession. The respondent got issued a legal notice on 04/06/2009 calling upon the petitioners to pay Rs.9,72,264/- with interest @ 24% p.a. and Rs.2,00,000/- towards damages to which a suitable reply was got issued by the petitioners. The respondent list out the flats fallen to the share of the petitioners and started collecting rents. On verification by petitioners, it was found that 10 feet from North to South on the Western side in the land of Vimala Devi was taken over by HUDA for the purpose of road widening and there by the actual assessment was reduced to 273 sq. yds. instead of 319 sq. yds. Therefore, proportionate sharing as agreed under the agreement is incorrect. Hence, the petitioners filed consumer complaint to direct respondent to pay Rs.4,10,000/- as rent which petitioners ought to get and Rs.10,24,860/- as damages for delay in construction and completion of the residential building and Rs.2,00,000/- as damages for mental and physical agony faced by the petitioners.
4. The respondent remained ex parte before the District Forum.
5. District Consumer Disputes Redressal Forum, Ranga Reddy (for short, District Forum) vide order dated 29.11.2011 allowed the complaint and passed following order; We direct the Opposite Party to pay Rs.1,57,000/- towards rents illegally collected by the Opposite Party and Rs.10,24,860/- for not completing the project in time and we also award a sum of Rs.50,000/- towards mental agony caused in not completing the project in time. A sum of Rs.2,000/- is awarded as costs.
6. Aggrieved by the order of District Forum, Respondent filed appeal before the State Commission which vide its impugned order, set aside the order of District Forum and allowed the appeal by passing following order;
13. In the result, the appeal is disposed of setting aside the order of the District Forum. The respondents are at liberty to approach appropriate and competent court/Forum. In the event the respondents approach the court/forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
7. We have heard learned counsel for petitioners and gone through the record.
8. It is submitted by learned counsel, that petition u/s 9 of the Arbitration Act was filed to secure the amount in dispute and to stop the respondent from collecting rent. However, petitioner never filed any application for appointment of Arbitrator. Moreover, it is the right of consumer to approach Consumer Forum to seek the relief, even if any Arbitration proceedings has been initiated. In support, learned counsel has relied upon a decision of Honble Supreme Court in and decision National Seed Corporation Vs. Madhusudhan Reddy and Anr., 2012 (2) SCC 506 of this Commission in DLF Ltd. Vs. Mridul Estate (Pvt) Ltd, (Revision Petition No.412 of 2011 etc.).
9. The State Commission in its impugned order observed;
. As seen from the grounds of appeal, the respondents filed O.P.No. 828 of 2010 on11 the file of Special Judge for SC/ST cases cum-Addl .District Judge, Ranga Reddy seeking for injunction under Section 9 of Arbitration Act. Honble Supreme Court considered maintainability of complaint in the circumstances where arbitration proceedings are not initiated prior to filing of complaint in National Seed Corporation vs Madusudan Reddy 2012 (2) SCC 506. It was held : The remedy of arbitration is not the only remedy available to a grower.Rather, it is an option remedy.He can either seek reference to an arbitrator or file a complaint under the Consumer Protection Act.If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking section 8 of the Arbitration and conciliation Act, 1996 Act.Moreover, the plain language of section 3 of the Consumer Protection Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.
12 . In the case on hand, the respondents have already invoked proceedings under Arbitration Act by filing O.P.No. 828 of 2010 on the file of the Court of Special Judge for SC/ST-cum-Additional District Judge, Ranga Reddy. Thereafter, the respondents had chosen to file complaint before the District Forum. As the appellant did not participate in the proceedings, the District Forum has no opportunity to know about the pendency of the OP filed under Section 9 of the Arbitration Act. Had the respondents filed complaint before initiating arbitration proceedings, in view of law laid in National Seed Corporation (supra) they could file the complaint which, however, they had not done. As such the complaint is not maintainable and is liable to be returned.
10. It is not in dispute that petitioner themselves have filed a petition u/s 9 of the Arbitration Act in the year 2010, whereas consumer complaint was filed in February, 2011. Thus, Arbitration Petition was filed by the petitioners prior to filing of the consumer complaint. Therefore, two parallel proceedings cannot go on simultaneously. This Commission in Beverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd., (Revision Petition No.2064 of has observed; 2012 decided on 13.3.2014)
Now the core question is, whether two parallel proceedings for similar relief can be7. persuaded before two different forums. Learned counsel for the respondent submitted that section 3, Consumer Protection Act enables complaint to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned counsel for the respondent because two proceedings for similar relief cannot run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad vs. The New India Assurance Co. Ltd. held that when a case is pending in a court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action. 8 . Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both proceedings may go simultaneously. The words appearing in S.3 C.P. Act enables complainant toin addition file complaint before Consumer Fora also if not filed before other forum.
11. Therefore, we do not find any infirmity or ambiguity in the impugned order. Thus, present petition is nothing but gross abuse of process of law and same is required to be dismissed with cost. Accordingly, present revision petition stand dismissed with cost of Rs.5,000/- (Rupees five thousand only).
12 Petitioners are directed to deposit the cost by way of demand draft in the name of. Consumer Legal Aid Account of this Commission within four weeks from today.
13. In case, petitioners fail to deposit the aforesaid amount within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.
14. List for compliance on 11.12.2015 at 2 p.m. ......................J
V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER