2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Argued By: For the complainants : Sh. Anuj Raura, Advocate For the opposite parties: Sh. I.P. Singh, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The complainants, who are husband and wife, have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 Consumer Complaint No.6 of 2020 (in short, the Act), against the opposite parties, seeking following directions to them:

i) to execute and get registered the Sale Deed, by adjusting the amount of 19,60,519/-, which has already been spent by the complainants on the construction and furnishing of the flat, in question; ii) to pay 15,82,508/- and 10,00,000/-, totaling 25,82,508/- as referred in Para-27 and 28 of the complaint, along with interest; iii) to pay 1,00,000/- towards litigation expenses. Facts of the Complaint

2. Brief facts, as set out in the complaint, are that in December, 2008, opposite party No.1 launched a project for developing a residential complex, namely Multitech Towers, situated in Sector-91, Mohali, and made wide advertisement through newspapers, brochure and pamphlets etc., by showing/promising various features about the booking/allotment of flats. The complainants got enticed by their tall claims and signed the Application Form dated 31.12.2009 Ex.C-2 (colly.) for allotment of flat in the said project. The opposite parties agreed to sell flat No.161, Block-G, measuring 2350 sq.ft., with 5 KW of power backup and other facilities/luxuries, as shown in the Brochure, for a total cost of 61 lac i.e. 60 lac as basic sale price of the flat and 1 lac as parking charges. The complainants paid a sum of 1 lac, as earnest money, vide cheque No.182157 dated 31.12.2009, at the time of booking. It was settled between the parties Consumer Complaint No.6 of 2020 that out of aforesaid amount of 61 lac, a sum of 40 lac would be paid by the complainants before 30.03.2010 and balance amount i.e.

21 lac was to be paid at the time of delivery of possession and execution of Sale Deed of the flat, in question.

3. It is further averred that the opposite parties assured to complete the construction and deliver possession of the flat up to 30.04.2010. The complainants paid a sum of 38,99,892/- between 19.01.2010 to 05.03.2010, vide receipts Ex.C-3 to Ex.C-13; with the hope of delivery of possession and execution of the Sale Deed in their favour on or before 30.04.2010. On 27.03.2010, the complainants received the allotment letter, Ex.C-14. On enquiry about the delivery of possession and execution of Sale Deed, the complainants were told that the construction work was in full swing and possession would be delivered soon. They were asked to get ready with balance sale consideration of 21 lac. The complainants got prepared the demand drafts, Ex.C-15 to Ex.C-22, of that amount in the name of the opposite parties in the month of March, 2010, as the date of delivery of possession and execution of Sale Deed was given as 30.04.2010. In the month of April, 2010, the complainants came back from Australia only to take possession of the flat and execution of the Sale Deed, along with balance sale consideration of 21 lac, but they were shocked to see that the construction work at the site was still at its initial stage. The opposite parties told that the construction work and promised facilities would be completed by July, 2010. In July, 2010, the complainants again came from Australia to take possession of the Consumer Complaint No.6 of 2020 flat and execution of Sale Deed and found that the construction was not completed at the site. Thereafter, in August/September/October, 2010, the complainants requested the opposite parties, through e- mails/SMS, Ex.C-23 (colly.) to give possession of the flat.

4. It is further averred that the opposite parties told the complainants to arrange for the interior work in the flat on their own and promised to adjust the expenditure made by them in the final payment of 21 lac. At that time, the opposite parties also promised to provide the basic amenities of water, sewerage, electricity, lift at the time of finishing of the flat, in question. Accordingly, the complainants got cancelled the above said demand drafts of 21 lac in the month of September, 2010. However, the flat, in question, was not worth living and only walls were constructed, as is evident from photographs Ex.C-

24 (colly.). Believing the aforesaid assurances of the opposite parties, the complainants spent a sum of 19,60,519/- on the civil work, tiling, bathroom, kitchen, electrical, plumbing, POP and paint in the flat, in question. The complainants also made an order of 25,76,984/- for purchase of items of furniture, TV, Refrigerator, A.C., carpet, kitchen, bathroom appliances etc. with the hope that they would get the possession of the flat very soon and the aforesaid amount spent by them would be adjusted in the final payment of 21 lac, as assured by the opposite parties. The details of expenditure incurred by the complainants and relevant documents are Ex.C-25 (colly.). The complainants completed the work of the flat in the month of December, 2010 with fitting of partial appliances, fixtures and furnishing and Consumer Complaint No.6 of 2020 requested the opposite parties to fulfill their aforesaid promise. However, till the end of January, 2011, the opposite parties failed to provide the basic amenities of water, sewerage and lift. Rather, they started sending demand notices for making payment of balance amount, which was already spent by the complainants against the pending construction work of the flat, as per promise made by the opposite parties. The complainants sent an e-mail to them, along with summary of terms and conditions, as agreed previously and also visited the office of the opposite parties to know the reason, as to why they had sent such demand notices. The opposite parties replied that the demand notices were wrongly sent only due to fault of the system and the complainants should ignore the same. The opposite parties also told that the format of registered Sale Deed was pending in the office of S.D.M.; which was to be approved only after issuance of the Completion Certificate. The Completion Certificate could not be obtained due to pending construction work. The complainants were not having any other option, but to hold the pending work and went back to Australia. Thereafter, the complainants regularly kept on visiting India for getting the possession and execution of the Sale Deed, but to no effect.

5. It is further averred that on 03.01.2012, the complainants received a letter, Ex.C-26, vide which possession of the flat, in question, was offered, with illegal demand of instalments. However, the flat was not yet completed and basic amenities were also not ready. Even the construction was still going on at that point of time. Consumer Complaint No.6 of 2020 This fact is evident from photographs Ex.C-27 (colly.). The complainants visited the office of the opposite parties for adjustment of the aforesaid amount spent by them on the flat, in question. It was found that the opposite parties had temporarily arranged the water, sewerage and electricity facilities to make the flat livable and assured that the Sale Deed would be executed up to 30.03.2012. On the basis of that commitment of the opposite parties, the complainants paid the balance amount of 1,65,000/-, vide receipts dated 03.02.2012 and 08.02.2012, Ex.C-28 and Ex.C-29, out of the balance amount of 21 lac. The complainants further paid a sum of 36,000/- for extra 3 KW back-up load (5 KW included in the cost of the flat), IFMS and Service Tax after deduction of 19,60,519/- for self executed work. After paying all the dues, complainant No.1 called his family from Australia, so that they could get the Sale Deed executed and perform Pooja, to start living in the flat, in question, with temporary electricity and water connections. The opposite parties failed to execute the Sale Deed of the flat in their favour and the complainants returned back to Australia on 15.04.2012. The mobile connection, Bank Account and Aadhaar Card of the complainants were also issued on the address of the flat, in question; which show the ownership and physical possession of the complainants over it. In the absence of the complainants, their relatives regularly visited the flat, in question, to check the status and cleanliness. Copies of telephone bill, Statement of HDFC Bank Account and Aadhaar Card are Ex.C-30 to Ex.C-32. Consumer Complaint No.6 of 2020

6. It is further averred that in the meanwhile, the construction of the flat, in question, was damaged, as a result of which the furniture and carpet were also damaged, as is evident from photographs Ex.C-

33 (colly.). Details of damage to furniture are Ex.C-34. On 30.08.2012, the complainants received a letter, Ex.C-35, for execution of one sided Apartment Buyers Agreement, just to illegally bind the complainants, so that they dont ask for any compensation for the said damage. The opposite parties adopted blackmailing tactics by raising illegal demands, disconnecting the temporary electric connection and interfering with the possession of the complainants. On 25.05.2013, the complainants applied for release of the electric connection, by depositing the requisite fee of 13,840/-, through demand draft No.939531 drawn on Punjab National Bank, vide receipt Ex.C36; but the opposite parties did not allow the complainants/employees of the electricity department to enter into the building to install the electricity meter. The complainants explained that they had paid the entire amount of 61,25,411/- and nothing is due towards them, but they did not execute the Sale Deed. Besides this, the complainants also spent a sum of 8,61,574/- on air fare for travelling to India from Australia, as per details Ex.C-37. They also suffered loss of 2,43,434/- due to damage to furniture items. The opposite parties did not provide the items, as promised in the Brochure, amounting to 1,37,500/-, as per detail Ex.C-38. Besides, the complainants also spent 3,40,000/- on rented accommodation at the rate of 20,000/- per month. Thus, the complainants are entitled to recover these expenses of 15,82,508/- Consumer Complaint No.6 of 2020 from the opposite parties, besides 10 lac as compensation. It is further averred that the complainants came to know that the Multi-tech Welfare Association was got registered from the competent authority on 17.07.2019 and thereafter, the complainants came from Australia and requested the opposite parties to execute the Sale Deed in their favour, but without any result. The aforesaid act and conduct of the opposite parties amount to deficiency in service and unfair trade practice. Earlier, complainant No.2 filed Consumer Complaint No.137 of 2013 against the opposite parties; which was dismissed as withdrawn due to some typical errors, vide order dated 12.02.2014. Hence, the present complaint. Defence of the Opposite Parties

7. Upon notice, the opposite parties appeared and filed reply to the complaint, raising preliminary objections that the complainants have not approached this Commission with clean hands and are guilty of concealment of material facts. The complaint is abuse of the process of law. The complainants had been approaching this Commission as well as the Civil Court, pertaining to the same cause of action time and again. They have concealed the fact of filing the Civil Suit on the same cause of action and the second complaint i.e. CC No.166 of 2014 before this Commission, which was dismissed vide order dated 16.08.2016. They have only disclosed about CC No.137 of 2013 before this Commission, which was filed on 28.11.2013. The same was dismissed as withdrawn, vide order dated 12.02.2014, Ex.O-1, but no liberty was granted to file a fresh complaint on the Consumer Complaint No.6 of 2020 same cause of action. The present complaint is time barred. No cause of action has accrued to the complainants within a period of two years prior to filing of the present complaint. Even copy of the order dated 12.02.2014 has not been placed on record by the complainants. Thus, the second complaint on the same cause of action was not maintainable.

8. It is further pleaded that complainant No.2 had filed second complaint on 13.10.2014, seeking similar relief, as was sought in the first complaint. Upon appearance in that complaint, the opposite parties filed application dated 10.06.2015 for dismissal of the complaint, pleading that the complainants had filed a Civil Suit on the same cause of action. It was also pleaded that the earlier complaint filed by complainant No.2 was dismissed as withdrawn, with no liberty to file fresh complaint on the same cause of action. The said application was taken up by this Commission on 11.06.2015 and the case was adjourned to 13.08.2015 for filing reply and consideration on the same. On 13.08.2015, adjournment was sought and the case was further adjourned to 10.09.2015. On 10.09.2015, none appeared on behalf of the complainant and the case was adjourned to 15.10.2015. The said case was further adjourned to 19.11.2015 and 17.12.2015. On 17.12.2015, none appeared on behalf of the complainant and the case was adjourned to 21.12.2015 for filing reply and consideration to the aforesaid application, subject to cost of 500/-. However, the complainant did not file any reply, nor argued the matter. Ultimately, after a period of more than one year, the said complaint was dismissed Consumer Complaint No.6 of 2020 in default, vide order dated 16.08.2016, Ex.O-2 (colly.). Copies of Misc. Application dated 16.10.2015, plaint of Civil Suit, written statement and order dated 12.02.2014 are Ex.C-3 (colly.). The present complaint is the third complaint on the same cause of action, which is liable to be dismissed with exemplary costs.

9. It is further pleaded that the complainants are seeking registration of the Sale Deed of the flat, in question, without payment of balance sale consideration. Registration of Multitech Welfare Association on 17.07.2019 has no concern with the registration of the Sale Deed. The Sale Deeds, Ex.O-4 and Ex.O-5, have been got registered by the opposite parties in favour of the other purchasers/allottees, who had paid the entire sale consideration and possession of the flats had also been delivered to the allottees, as per the terms and conditions. However, the complainants have not paid the entire sale consideration of the flat. They are seeking adjustment of 19,60,519/- towards the alleged amount spent on construction and furnishing the flat, which is not sustainable. The basic sale price of the flat was 60 lac and 1 lac was payable towards parking site. Apart from this, other charges, as per terms and conditions, were also payable. It is admitted that the complainants had paid a sum of 38,99,892/- and without paying the balance sale price, they entered into the flat, in question. Thereafter, they filed the Civil Suit, seeking injunction restraining the opposite parties from dispossessing them out of the flat, in question. In the Civil Suit also, they sought adjustment of the alleged amount and registration of Sale Deed in their favour. The Consumer Complaint No.6 of 2020 complainants got an ex parte stay order dated 14.06.2013, Ex.O-6, against the opposite parties, by making false averments. However, the Civil Suit was dismissed by the Court of Civil Judge (Jr. Division), S.A.S. Nagar, Mohali, vide order dated 31.08.2015, i.e. during the pendency of the second complaint filed by complainant No.2 (CC No.166 of 2014); which was also dismissed, vide order dated 16.08.2016. Therefore, the present complaint is also barred by the principle of res-judicata.

10. It is further pleaded that the opposite parties had been requesting the complainants to come forward to take possession of the flat, in question, by making payment of balance sale price. However, without paying the balance amount, they took forcible possession of the flat, in question. Copies of demand notices dated 06.12.2010, 11.02.2011, 09.11.2011, 05.01.2012, 03.01.2012, 31.03.2012, 08.05.2012, 22.05.2012, 12.07.2012 and 20.07.2012 are Ex.O-7 (colly.). On account of consistent default of the complainants, they are liable to pay interest at the rate of 15% per annum on the balance amount, with quarterly rests. A sum of 70,76,308/- is due, along with future interest, till the date of final payment as per copy of Statement of Account Ex.O-8. The Sale Deed would be executed after payment of all dues, only in favour of complainant No.2. She was the applicant as per Application dated 31.12.2019, Ex.C-2, and payments receipts etc. were also issued in her name. As such, the complaint on behalf of complainant No.1 is not maintainable, being bad for mis-joinder of party. Consumer Complaint No.6 of 2020

11. It is further pleaded that the flat, in question, was ready in March, 2010 and the finishing works were started by the opposite parties. However, the complainants stalled the work, as they wanted to make material changes in the flat, as per their own choice. Communication dated 22.03.2010 was exchanged between the parties in this regard. Even copies of plans and drawings were supplied to them, on their request. Vide communication dated 19.10.2010, the complainants submitted the details of material, additions and alterations, which were to be made by them in the flat. The complainants were informed that all the expenses shall be borne by them and they shall not cause any damage to the structure and safety of the building. A technical person was also deputed for assisting the complainants. They made material changes in Master Bedroom by converting the balcony into a covered sitting area, glazing of the verandas, balcony of the kids room was also converted into a sitting room. In the servant room also, material changes were carried out. However, the changes made by the complainants were in violation of the sanctioned plan. The correspondence exchanged between the parties is Ex.O-9 (colly.). The opposite parties are not liable to pay the material additions, alterations etc. done by the complainants in the flat. Complicated questions of facts and law are involved in the complaint, which can be adjudicated only by the Civil Court. On merits, similar pleas, as raised in the preliminary objections, were reiterated. It is further pleaded that the complainants cannot claim the alleged amount spent on their visits to India or their stay in rented accommodation, as Consumer Complaint No.6 of 2020 the possession was ready in March, 2010 itself, but the complainants did not take the same, as they wanted to make material additions and alterations in the flat, as discussed above. The project, in question, is a multi tower project and various Towers/Blocks were completed from time to time. The Occupancy Certificate, Ex.O-10, pertaining to Block- G was issued on 16.11.2012 and Completion Certificate for the entire residential complex comprising of Tower/Block A, B, C, E, F & G was issued, vide letter dated 28.03.2016, Ex.O-11. There is no deficiency in service on the part of the opposite parties. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed.

12. Rejoinder to the reply was filed, in which averments of the complaint were reiterated and pleadings of the reply filed by the opposite parties were controverted. Evidence of the Parties

13. To prove their claim, the complainants filed their own affidavits, along with copies of documents i.e. Brochure Ex.C-1, Application Form dated 31.12.2009 Ex.C-2, payment receipts Ex.C-3 to Ex.C-13, Ex.C-28 and Ex.C-29; letter dated 27.03.2010 Ex.C-14, demand drafts Ex.C-15 to Ex.C-22, e-mails Ex.C-23 (colly.), photographs Ex.C-24, details/bills of expenditure and photographs Ex.C-25 (colly.), letter dated 03.01.2012 Ex.C-26, photographs Ex.C-

27 (colly.), mobile connection bill Ex.C-30, Bank Statement Ex.C-31, Aadhaar Card Ex.C-32, photographs Ex.C-33 (colly.), detail of damages Ex.C-34, letter dated 30.08.2012 Ex.C-35, bill receipt issued Consumer Complaint No.6 of 2020 by PSPCL Ex.C-36, list of travel expenses Ex.C-37, list of items not provided Ex.C-38, Registration Certificate dated 17.07.2019 Ex.C-39 and proceedings of CC No.137 of 2013 Ex.C-40 and zimni order, Ex.C-41 along with rejoinder.

14. The opposite parties, in support of their defence, filed self attested affidavit of Sh. Dhanwant Singh Sidhu, Authorized Officer, along with copies of documents i.e. order dated 12.02.2014 passed in CC No.137 of 2013 Ex.O-1, order dated 16.08.2016 passed in CC No.166 of 2014, along with zimni orders Ex.O-2 (colly.), Application dated 10.06.2015 Ex.O-3 (colly.), Sale Deeds Ex.O-4 and Ex.O-5, stay order dated 14.06.2013 Ex.O-6, demand notices Ex.O-7 (colly.), Statement of Account Ex.O-8, correspondence exchanged between the complainants and the opposite parties Ex.O-9 (colly.), Partial O.C. dated 16.12.2011 Ex.O-10 and Completion Certificate dated 28.03.2016 Ex.O-11. Contentions of the Parties

15. We have heard learned counsel for the parties and have also perused the written arguments submitted on their behalf and the record carefully.

16. The written arguments submitted on behalf of the complainants are on the lines of the averments made in the complaint. The sum and substance of the oral and written arguments is that the opposite parties failed to execute the Sale Deed of the flat, in question, in favour of the complainants, despite receipt of entire sale price. Earlier, the complainants had paid a total sum of 38,99,852/- up to Consumer Complaint No.6 of 2020 05.03.2010. The opposite parties had assured to deliver the possession in March, 2010. The complainants also got prepared the demand drafts of 21 lac for making payment of balance sale price, but the opposite parties delayed the possession on one pretext or the other. The complainants spent huge amount on travelling from Australia to India for the purpose of taking possession of the flat and registration of Sale Deed, but every time, they had to return back empty handed. There was no development at the site and even no basic amenities, such as water, sewerage, electricity, lift etc. were provided. The complainants spent a sum of 19,60,519/- on the internal works done in the flat, in question, as detailed above, only on the assurance of the opposite parties that the same would be adjusted in the final payment at the time of possession. However, instead of adjusting that amount, the opposite parties kept on raising illegal demands. The complainants further paid a sum of 1,65,000/-, vide receipts Ex.C-28 and Ex.C-29 to complete the amount of 21 lac. The Completion Certificate was not obtained up to January, 2011; which was obtained only on 28.03.2016. The opposite parties provided only temporary electric connection in the flat. On 25.03.2016, the complainants applied for release of electric connection by depositing 13,840/- vide demand draft Ex.C-36, but the opposite parties did not allow the complainants/employees of PSPCL to enter the flat, in question, in order to install the electricity meter. It is further contended that the plea of the opposite parties that the Civil Suit No.1555 of 2013, which was dismissed in default on 31.08.2015 and accordingly the Consumer Complaint No.6 of 2020 present complaint is not maintainable, cannot be accepted, in view of Section 3 of the Act and observations made in Letter Patents Appeal No.204 of 2009 (Hindustan Motors Ltd. v. Amardeep Singh Wirk & Ors..) decided by the Honble Delhi High Court, vide order dated 14.05.2019. Moreover, the said Civil Suit and earlier two complaints filed by the complainants were not decided on merits. Therefore, the present complaint is maintainable and the complainants are entitled to all the reliefs, as prayed for. Learned counsel for the complainants has also relied upon following cases:

i) New India Assurance Co. Ltd. v. R. Srinivasan . 2000 AIR (SC) 941; ii) Indian Machinery Company v. M/s Ansal Housing & Construction Ltd. Civil Appeal No.557 of 2016 (Arising out of SLP (C) No.19618 of 2013), decided on 27.01.2016 (SC); iii) ABEE Associates v. Paradise Heights CHS Ltd. Revision No.4850 of 2013 decided on 10.03.20015 (NC); (2015) (2) CLT 325; iv) Sri Narayan Prasad Sharma v. M/s N.K. Enterprises CC No.172 of 2016 decided vide order dated 31.12.2018 (State Commission); and

v) Bishwa Bijay Oke v. M/s Parvati Resources Pvt. Ltd. First Appeal No.A/311/2016 decided on 26.04.2019.

17. Similarly, the written arguments submitted on behalf of their opposite parties are on the lines of the pleadings made in the reply. The sum and substance of the oral and written arguments is that the complainants have not come to this Commission with clean hands and have suppressed the material facts. The present complaint is barred by limitation. Moreover, this is the third complaint, apart from the Civil Suit, on the same cause of action and similar reliefs. The first Consumer Complaint No.6 of 2020 complaint, i.e. CC No.137 of 2013, was dismissed as withdrawn, vide order dated 12.02.2014, without giving any liberty to file fresh complaint on the same cause of action. Thereafter, complainant No.2 filed second complaint i.e. CC No.166 of 2014 on 13.10.2014. In that complaint, the opposite parties had filed an application for dismissal of the complaint, on the ground that a Civil Suit was also filed in the Civil Court on the same cause of action and earlier complaint was dismissed as withdrawn, without giving any liberty to file fresh one. However, neither anybody appeared on behalf of complainant No.1 on various dates nor reply to that application was filed. Ultimately, that complaint was also dismissed in default by this Commission, vide order dated 16.08.2016, Ex.O-2 (colly.). The Civil Suit was also dismissed, vide order dated 31.08.2015 during the pendency of second complaint. Therefore, the present complaint is hit by the principle of res-judicata. It is further contended that the complainants are defaulters, as they have not paid the entire sale price of the flat, in question. They paid only 38,99,892/- and forcibly entered in the flat, in question, without paying the balance sale consideration, despite receipt of various demand notices, Ex.O-7 (colly.). It is further contended that the complaint is bad for mis-joinder of parties, because as per Application Form Ex.C-2, only complainant No.2 had applied for allotment of the flat, in question, whereas in the present complaint, complainant No.1 has also been joined. It is further contended that the complainants carried out changes and alterations in the flat, in question, at their own expenses that too, in violation of the sanctioned Consumer Complaint No.6 of 2020 plan. Complicated questions of facts and law are involved in the complaint, which cannot be decided in summary jurisdiction and only the Civil Court is competent. It is further contended that the rejoinder has been filed by Sh. Kawaljeet Singh, Special Power of Attorney of the complainants, who cannot legally depose on their behalf. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed with costs. In support of his contentions, learned counsel for the opposite parties has relied upon following cases:

i) Proprietor, M/s Jabalpur Tractors v. Sedmal Jainarain CA 9928/1995, decided on 30.10.1995 (SC); ii) Damayanti Kantilal Shah v. Rashmi Gruha Nirman Ltd. & Ors. 2015 (3) CPR 338 (NC); iii) Vinod Kumar Kataria v. Arufa First Appeal No.1201 of 2017, decided on 14.09.2017 (NC); iv) Dr. Dinesh v. Swastic Builders & Ors. Original Petition No.188 of 1995, decided on 14.08.2001 (NC); and

v) Indian Medical Association Housing Society Ltd. v. M/s Rustamji Developments O.P. No.242 of 1993 decided on 03.08.1994 (NC). Consideration of Contentions

18. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties.

19. In view of the arguments raised by the parties, following questions arise for determination: Question (I): Whether the present complaint is not maintainable, in view of the dismissal of earlier complaints and whether the principle of res judicata applies in the consumer complaints? Consumer Complaint No.6 of 2020 Question (II): Whether filing of Civil Suit bars the jurisdiction of this Commission, to file consumer complaint? Question (III): Whether the present complaint is barred by limitation? Question (IV): Whether the complaint is liable to be dismissed on the ground of concealment of material facts? Question (V): Whether the complaint is bad for mis-joinder of party? In Re: Question (I): Whether the principle of res judicata applies in the consumer complaints?

20. Admittedly, complainant No.2 had earlier filed a complaint

i.e. Consumer Complaint No.137 of 2013; which was dismissed as withdrawn, vide order dated 12.02.2014, Ex.O-1, without any liberty to file a fresh complaint. Thereafter, complainant No.2 had filed Consumer Complaint No.166 of 2014 on the same cause of action; which was dismissed in default, for want of prosecution, vide order dated 16.08.2016, Ex.O-2 (colly.). Thereafter, the present complaint has been filed. It is the contention of the learned counsel for the opposite parties that even the Civil Suit was filed by the complainants on the same cause of action; which was also dismissed and, as such, the present complaint is not maintainable. On the other hand, contention of the learned counsel for the complainants is that the provisions of Code of Civil Procedure (C.P.C.) do not apply, except the specific provisions, which are defined in the Act, because Section 3 of the Consumer Protection Act, 1986 (now Section 100 of the Consumer Consumer Complaint No.6 of 2020 Protection Act, 2019) provides that provisions of the Act are in addition and not in derogation of any other law.

21. The contention of the learned counsel for the opposite parties is not tenable. As already discussed above, the earlier two consumer complaints were not decided on merits. One was dismissed as withdrawn, without liberty and the other was dismissed for non- prosecution. Therefore, the principle of res judicata applies is not applicable, as none of the earlier complaints was decided on merits. Furthermore, the principle of res judicata does not apply to the summary proceedings under the Act, as has been held by the Honble Supreme Court in case Inder Singh & Anr. v. The Financial Commissioner, Punjab and Others 1997 (1) PLJ 52. Relevant Para No 3 of the above said judgment reads as under:

3. Shri Ujagar Singh, learned senior counsel for the appellants contended that the view taken by the High Court is not correct in law. Since the proceedings before the authorities are of summary nature, the doctrine of res judicata has no application. The Act does not prescribe any principle of res judicata as such. The proceedings before the authorities are of summary nature. It would not be correct to apply the principle of res judicata. We find force in the contention. It is not in dispute that the order passed by the authorities is without any elaborate trial like in a suit but in a summary manner. It is well settled law that the doctrine of res judicata envisaged in Section 11 of C.P.C. has no application to summary proceedings unless the statute expressly applies to such orders. The authorities are not Civil Court nor the petition is plaint. No issues are framed nor tried as a civil suit. Under these circumstances, the Division Bench of the High Court was clearly in error to conclude that the earlier proceedings operate as res judicata.

22. Honble Punjab & Haryana High Court in case Gram Panchayat, Surewala v. Commissioner, Ferozepur Division . 1998 (1) PLJ 240 also followed the law laid down by the Honble Supreme Court in Inder Singhs case (supra).

23. This Commission also in Consumer Complaint No.929 of 2017 (Rajneesh Kumari v. Pathankot Improvement Trust & Anr.), decided on 21.03.2018, by relying upon the aforesaid authorities, held that the proceedings under the Act are summary in nature and, as such, principal of res judicata does not apply to the same.

24. It also needs to be mentioned that at the most, some of the provisions of Rules 7, 8 and 9 of Order 9 of CPC can apply, where the complaint/suit has been dismissed in default or dismissed as withdrawn, but there is no provision in the Consumer Protection Act, 1986 or Consumer Protection Act, 2019 with regard to applicability of entire Order 9 of CPC. Honble Supreme Court in Civil Appeal No.557 of 2016 Indian Machinery Company Versus M/s Ansal Housing & Construction Ltd., decided on 27.01.2016 has specifically held that prohibition contained in Order 9 Rule 9 (1) CPC cannot be extended to proceedings under the Act, where the earlier complaint was dismissed in default and was not decided on merits and, as such, the second complaint would lie. It was held as under: The only question that has arisen in this appeal is whether a second complaint to the District Forum under the Consumer Protection Act, 1986 is maintainable when the first complaint was dismissed for default or non prosecution. The National Commission has taken the view in the impugned order that the second complaint would not be maintainable. Our attention has been drawn to a decision of this Court in New India Assurance Co. Ltd. Vs. R. Srinivasan [(2000) 3 SCC 242] wherein this precise question had arisen as mentioned in paragraph 5 of this decision. It is mentioned in that paragraph that Consumer Complaint No.6 of 2020 the only question is that in view of the dismissal of the first complaint filed by the respondent therein, a second complaint on the same facts and cause of action would not lie and it ought to have been dismissed as not maintainable. While dealing with this issue, this Court held in paragraph

16 as follows: This Rule [Rule 9(6) of the Tamil Nadu Consumer Protection Rules, 1988] is in identical terms with sub-rule (8) of Rule 4 and sub-rule (8) of Rule 8. Under this sub-rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose of it on merits. Similar power has been given to the National Commission under Rule 15(6) of the Rules made by the Central Government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under Rule 4(8) or by the State Commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default. We have also not been shown any rule similar to Order IX, Rule 9(1) of the Code of Civil Procedure, 1908. That being so, and in view of the decision rendered by this Court, with which we have no reason to disagree, we are of the opinion that the second complaint filed by the appellant was maintainable on the facts of this case. Under the circumstances, we set aside the order passed by the National Commission and remit the matter back to the National Commission for adjudicating the disputes on merits. The appeal is disposed of in view of the above.

25. This issue was also raised before the Honble National Commission M/s. ABBE Associates Vs. Paradise Heights CHS Ltd. & Others (2015) (2) CLT 325, in which both the judgments of the Honble Supreme Court rendered in cases New India Assurance Company Limited Vs. R. Srinivasan [AIR 2000 (SC) 941] and Consumer Complaint No.6 of 2020 Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Others 2011 (9) SCC-541 were discussed. It was held as under:- Restoration of complaint and filing of second complaint are two different concepts. In the case of restoration of a complaint, date of filing of complaint for computing limitation shall relate back to date on which the complaint was filed and it would not be date of restoration of complaint. However, in the case of second complaint, for the purpose of limitation, the date of filing of earlier complaint is not relevant. Thus, in our view, when there is no bar provided in the Act or the rules framed thereunder for filing the second complaint after dismissal of complaint in default, there is no reason to deny the complainant to file the fresh complaint provided it is within limitation and is not barred by the principle of resjudicata.

26. In view of the law laid down in the above noted authorities, it is clear that neither the principle of res judicata is applicable to the summary proceedings under the Act, nor the present complaint is barred, as the earlier complaints have not been decided on merits. Furthermore, the law also requires that the consumer disputes should be decided on merits and the dismissal of the complaints in default should be avoided. Therefore, Question (I) is answered in negative. In Re: Question (II): Whether filing of Civil Suit bars the jurisdiction of this Commission, to file consumer complaint?

27. In the present case, the complainants had also filed Civil Suit, Ex.O-3 (colly.) on the same cause of action; which was dismissed by the Court of Civil Judge (Jr. Division), S.A.S. Nagar, Mohali, vide order dated 31.08.2015, i.e. during the pendency of the second complaint filed by complainant No.2 (CC No.166 of 2014). However, the fact remains that the same was also not decided on merits, as emerged from the arguments raised by the parties. Even if the Civil Consumer Complaint No.6 of 2020 Suit has been filed, even then the consumer complaint can be filed. Honble Delhi High Court in Hindustan Motors Ltd. v. Amardeep Singh Wirk & Ors.. No.204 of 2009 and CM No.6638 of 2009, decided on 14.05.2009 held as under:

2. As per the appellant, the issues which concern the respondent No. 1 are common to the suit pending in this Court which was at an advanced stage. As per the appellant, continuation of both the proceedings, would have a deritorious effect and could result in conflicting orders. As per the appellant, despite this being pointed out, the State Commission had proceeded with the complaint and he contended that the impugned order of the State Commission recorded that merely because a plea had been raised before the High Court alleging manufacturing defect, there would be no bar against the owner of the car to seek release as prescribed under Section 14 (1) of The Consumer Protection Act, 1986 (hereinafter referred to as the Act). As per the appellant, identical issues with regard to alleged manufacturing defect of some parts of the said vehicle have been raised which require a trial and in these circumstances, it would be appropriate that the authority under the Consumer Protection Act should have stayed its proceedings in the interest of justice and awaited the order and decree of the High Court as that would have been binding on the appellant.

4. The learned Single Judge has rightly held that Section 3 of the Act cannot imply that the rights created under the Act could be curtailed on the ground of pendency of other proceedings. It was also correctly held relying on judgments of the Supreme Court, by the learned Single Judge that existence of parallel or other adjudicatory Forums cannot take away or exclude jurisdiction created under the Consumer Protection Act.

5. At this stage, it would be relevant to refer to some decisions of the Supreme Court. In the case of Satpal Mohindra vs. Surindra Timber Stores, (1999) 5 SCC 696, the Honble Supreme Court in para-5 has held as under:- "5. After perusing the record, we find that whereas the appellant had filed the complaint on 21-5-1994 seeking damages, the suit was filed by the respondent much later in the civil court claiming the price of the material supplied by it. Under these circumstances, the State Forum was not justified in dismissing the appeal filed by the appellant without recording any finding on the merits of the appeal because the filing of the suit by the Consumer Complaint No.6 of 2020 respondent during the pendency of the proceedings before the Consumer Forum for a different type of relief could not oust the jurisdiction of the Consumer Forum. The order of the State Forum dated 14-10-1996 is completely erroneous. It cannot be sustained. We, accordingly, accept this appeal and set aside the order of the State Forum dated 14-10-1996 as well as that of the National Forum dated 21- 7-1998. We remand the appeal to the State Forum for its disposal on merits in accordance with law. The State Forum shall dispose of the appeal expeditiously. No costs."

7. The Supreme Court in the case of Secretary, Thirumurugan Co- operative Agricultural Credit Society vs. M. Lalitha & Ors. (2004) 1 SCC 305, held that having due regard to the scheme of the Consumer Protection Act and the purpose sought to be achieved to protect the interest of the consumers better, its provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar. Some of the relevant findings of the Supreme Court in that matter are reproduced hereinbelow:- "11. From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non- compliance of their orders.

12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar. Consumer Complaint No.6 of 2020

13. The view we are taking is supported by the earlier decisions of this Court. In Lucknow Development Authority v. M.K Gupta .. Gupta, (1994) 1 SCC 243, this Court observed, thus: - "We therefore come straight away to the legal issue involved in these appeals. But before doing so and examining the question of jurisdiction of the District Forum or State or National Commission to entertain a complaint under the Act, it, appears, appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act effectively. 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 which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act Ties in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, 'a network of rackets' or a society in which, 'producers have secured power' to 'rop the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot."

14. In Fair Air Engineers Pvt. Ltd. And Anr. v. N.K. Modi, (1996)

6 SCC 385, this Court, after referring to Lucknow Development Authority case (supra), held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It went on to say that "It is seen that Section

3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as Consumer Complaint No.6 of 2020 rightly contended by Shri Suri, that the words "in derogation of the provisions, of any other, law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the, provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy." Further, dealing with the jurisdiction of the forums under the 1986 Act in paragraph 16 this Court has stated, thus: - "16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the - Act does hot confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section

34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would he appropriate that, these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act." (emphasis supplied) XXX XXX XXX

16. A Bench of three learned Judges of this Court in a recent decision in State of Karnataka v. Vishwabharathi House Building Coop Society and Ors. MANU/SC/0033/2003, expressed the view that the 1986 Act was brought into force in view of the long-felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory and that in terms of the said Act, a consumer (sic) entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful Consumer Complaint No.6 of 2020 business house may be taken care of. Referring to the Fair Air Engineers (P) Ltd. Case (aforementioned), the Court stated that the provisions of the said Act are required to be interpreted as broadly as possible. On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis. It is also noticed that the Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty to approach the civil court for appropriate relief."

8. In Secretary, Thirumurugan Co-operative Agricultural Credit Society vs. M. Lalitha & Ors. (supra) case, the respondents being members of the appellant-society, had pledged paddy bags for obtaining loan. The appellant-society had issued notices to the respondents demanding payment of loan amount with interest thereon. The respondents filed petitions in the District Consumer Forum, seeking direction to the appellant to release the paddy bags pledged on receipt of the loan amount or in the alternative to direct the appellant to pay the market values of the paddy bags with interest thereon. The appellant contested the claims of the respondents before the District Forum raising a preliminary objection that Consumer Forum had no jurisdiction to decide the dispute between the members and cooperative society in view of Section 90 of the Tamil Nadu Cooperative Societies Act, 1983. One of the issues framed by the District Forum was whether it had jurisdiction to entertain the complaints of this nature? The District Forum decided in favour of the respondents. The appellant took the matter in appeal to the State Consumer Commission. The State Commission allowed the appeal filed by the appellant and dismissed the appeal filed by the respondents. The State Commission held that the complaints filed by the respondents were themselves not maintainable having regard to Section 90 of the Act. The respondents approached the National Consumer Disputes Redressal Commission by way of a revision petition. The National Commission allowed the revision petition and set aside the order of the State Commission.

28. Honble National Commission in case Yashwant Rama Jadhav v. Shaukat Hussain Shaikh. First Appeal No.1229 of 2017 decided, along with three other appeals, vide order dated 10.11.2017 held as under: Consumer Complaint No.6 of 2020 That the jurisdiction of the consumer forum is not ousted on account of a Civil suit having been instituted by the respondents, even if the subject matter of the said suits is the same agreement which is the foundation of the consumer complaint.

29. In view of the ratio of law laid down in above noted authorities, it is clear that Section 3 of the Consumer Protection Act, 1986 (now Section 100 of the Consumer Protection Act, 2019) provides that provisions of the Act are in addition and not in derogation of any other law. Therefore, the filing of Civil Suit on the same subject matter, which has not been decided on merits, is no bar to the filing of the present complaint. Therefore, Question (II) is also answered in negative. In R: Question (III): Whether the present complaint is barred by limitation?

30. It needs to be mentioned that in this case, the cause of action initially arose to complainant No.2 on 28.11.2013, when the first complaint (CC No.137 of 2013) was filed before this Commission and thereafter on 13.10.2014, when the second complaint (CC No.166 of 2014) was filed. Even thereafter, when the Civil Suit was filed, which is stated to have been dismissed, vide order dated 31.08.2015. The present complaint has been filed on 08.01.2020, i.e. after a gap of many years of passing of orders in earlier complaints/civil suit. No application has been filed, along with the complaint, for condonation of delay in filing the complaint. Section 24-A of the Act lays down that the Consumer Forum shall not entertain a complaint, unless it is filed within two years from the date on which the cause of action has arisen. Consumer Complaint No.6 of 2020 The Honble Supreme Court in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC

121 observed in Para No.8 as under:-

8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

31. This view of law was further reiterated by the Honble Supreme Court in its judgment reported as V.N. Shrikhande (Dr.) v. Anita Sena Fernandes 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Honble Supreme Court as under:- Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after

2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the Consumer Complaint No.6 of 2020 complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768. In another case Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd. and another 2009 CTJ 951 (Supreme Court) (CP), the Honble Supreme Court held as under:- By no stretch of imagination, it can be said that Insurance Companys reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.

32. Keeping in view the law laid down in the above noted cases, the present complaint is barred by limitation. The plea of the complainant with regard to time spent in wrong Fora is also not tenable. Once the limitation starts running, it never stops. Therefore, it is held that the present complaint is liable to be dismissed on the ground of limitation. Accordingly, Question (III) is answered in affirmative. Question (IV): Whether the complaint is liable to be dismissed on the ground of concealment of material facts?

33. It is also an admitted fact that the complainants in Para-41 of the complaint averred that no similar complaint has been filed by them in this Commission or any other authority, except Consumer Consumer Complaint No.6 of 2020 Complaint No.137 of 2013. They have intentionally not disclosed about filing of second complaint, i.e. Consumer Complaint No.166 of 2014, and the Civil Suit, as discussed above. This amounts to concealment of material facts from the knowledge of this Commission. The complainants were required to disclose all the relevant facts and circumstances in the complaint, but it has not been done so, for the reasons best known them. Concealment of material facts itself is a ground for not entertaining such complaints. It is settled law that a person, concealing material facts, cannot seek assistance of the Court, as has been held by the Honble Supreme Court in Civil Appeal No.7231 of 2001 (Kishan Chand v. Jagdish Parshad & Ors.) decided on 16.10.2001: JT 2001 (10) SC 426. In another case in Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9 SCC 401, Honble Supreme Court held as under: "In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice".

34. In view of the law laid down in the above noted authorities, the complaint is liable to be dismissed on account of concealment of Consumer Complaint No.6 of 2020 material facts by the complainants. Therefore, Question No.(IV) is also answered in affirmative. In Re: Question (V): Whether the complaint is bad for mis-joinder of party?

35. It is an admitted fact that the Application Form, Ex.C-2, for booking the unit, in question, was submitted by Smt. Ramandeep Kaur, complainant No.2, who is wife of complainant No.1. However, it needs to be mentioned that complainant No.1 has been corresponding with the opposite parties, on behalf complainant No.2, being her husband. This fact is evident from e-mails Ex.C-23 (colly.). Various payments for furnishing work done in the flat, in question, etc. were also made from the account of complainant No.1, as per Transaction Report, Ex.C-25 (colly.). Be that as it may, the fact remains that the contract for allotment of the flat, in question, is mainly between complainant No.2 and the opposite parties and it will go to the roots of the case. At the most, the relief, if any, can be granted in favour of complainant No.2 only, if the complaint succeeds. Complainant No.1 has been impleaded in the complaint only for the purpose of proving aforesaid e-mails and payments mentioned above. Otherwise, it will not affect the merits of the case, so far as the rights of complainant No.1 are concerned; which will survive with regard to the contract executed between complainant No.2 and the opposite parties. The rights of complainant No.1 are to be decided only on merits. Therefore, complaint cannot be dismissed, merely on the ground that the Consumer Complaint No.6 of 2020 complaint is bad for mis-joinder of party i.e. complainant No.1. Therefore, this issue is decided accordingly. Merits

36. Now, coming to merits of the case, admittedly, a sum of 40,64,892/- was paid by the complainants towards the price of the flat, in question, vide receipts Ex.C-3 to Ex.C-13, Ex.C-28 and Ex.C- 29; against the total sale price of 61 lac, including parking charges. The complainants have alleged that the opposite parties asked them to complete the interior work on their expenses; which would be adjusted in the final payment of 21 lac at the time of possession. Accordingly, the complainants spent a sum of 19,60,519/- on the civil work, bathroom, kitchen, electrical works etc. in the unit, in question. The complainants also placed an order for 25,76,984/- for purchase of furniture articles, TV, Refrigerator etc. During the process of work, the construction work of the flat, in question, was damaged, causing loss to the furniture and carpet etc. The complainants are seeking registration of Sale Deed of the flat, in question, in their favour, subject to adjustment of 19,60,519/- allegedly spent by them on construction and furnishing of the flat. The complainants had also filed a Civil Suit, seeking execution of Sale Deed etc. in their favour. However, it will not affect the merits of the case. On the other hand, the opposite parties are alleging that the complainants are seeking execution of Sale Deed of the flat, in question, without payment of balance sale consideration. A sum of 70,76,308/- is due against the complainants, along with future interest etc. It is also the case of the opposite parties that the Consumer Complaint No.6 of 2020 complainants themselves wanted to make material changes in the flat, in question, as per their own choice and expenses. The opposite parties have even disputed the expenditure details/bills, Ex.C-25, produced by the complainants. They are also denying that the interior works in the flat were got done by the complainants with their permission.

37. From perusal of pleadings of the parties, it is clear that there is dispute regarding reconciliation of accounts between the parties, which cannot be decided in summary proceedings. This Commission cannot determine, as to how much amount has been spent by the complainants on the interior work etc. of the flat, in question; in addition to the amount already paid by them to the opposite parties i.e. 40,64,892/- towards the price of the flat, in question. The issues relating to interior works done by the complainants in the flat, in question, damage to construction etc. while performance of interior works, are disputed facts. The same can be decided, only by way of leading detailed and in-depth evidence, cross examination of witnesses. This practice can be done only by the Civil Court of competent jurisdiction and not by this Commission under the summary proceedings. Although, the complainants have made substantial amount towards the price of the flat etc., yet keeping in view the nitty-gritties of law and legal position as well as above discussion, no relief can be granted to the complainants in the present complaint. Consumer Complaint No.6 of 2020

38. Accordingly, the complaint is dismissed. However, the complainants would be at liberty to avail any other legal remedy available to them, in accordance with law.

39. The complaint could not be decided within the statutory period due to heavy pendency of court cases and non-sitting of the Commission due to pandemic of COVID-19. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER December 04, 2020. (Gurmeet S)