[PER: INDIRA JAIN, J.] These four appeals under Section 44 of The Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as, "Act" in short), take an exception to the common order dated 11.6.2019 passed by the learned Member and Adjudicating Officer, MahaRERA in Complaint Nos. CC006000000057158, CC006 000000057220, CC006000000057221 and C006000000057223, thereby dismissing complaints being not maintainable.
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2) Since appeals raise identical question of facts and law, they are heard together and are being disposed of by this common judgment. 3l For the sake of convenience we would refer appellants and respondents in their original status as referred before learned A.O. 4l Though the case has a chequered history and the facts are long the matter lies within a narrow compass. The core question is one relating to maintainability of complaints filed by allottees before learned Adjudicating Offl cer. COMPLAINANTS' CASE 5l The factual matrix of the case which can be revealed from the pleadings in complaints may be stated as under:- il Appellants are complainants, respondent No'1 is a company registered under RERA and was appointed as developer vide development agreement dated 31't May, 2002 whereas respondent No'2 [formerly known as M/s Jayesh Buildersl is the developer with whom complainants entered into registered agreements for permanent alternatlve accommodation dated 5th April, 2003. iil Complainants were tenants in a building Sai Chhaya situated at Ville Parle (East) , Mumbai. As respondent No.2 had taken up redevelopment project, said building 8125 AT006000000031694G came to be demolished and respondent No.2 entered into agreements for permanent alternative accommodation with complainants on 5th April, 2003. According to complalnants, developer agreed to provide 1 BHK flats situated preferably on first to sixth floor of the new building free of cost and also agreed to pay compensation of Rs.5,000/- per month if possession of flats could not be delivered within 18 months' iiil Complainants allege that respondent No'2 failed to hand over possession of flats on time and filed RERA complaints seeking possession of flats as agreed and other consequential reliefs including compensation. DEFENCE 6l Respondents appeared and raised objection to maintainability of complaints on the following grounds :- il It is contended that complainants filed clvil suits before Clty Civil Court, Mumbai and obtained decrees agalnst respondents. It is submitted that in pursuance to the decrees, complainants had taken out execution proceedings and the same are pending. According to respondents they are ready to hand over possession of flats as agreed and as directed by Clvil Court but complainants are avoiding to receive possession of flats on some or the other pretext intending to take disadvantage of the provisions of RERA. 9/2s AT006000000031694G iil In view of civil suits filed and decrees obtained respondents contended that complaints before RERA are not maintainable as complainants have sought identical reliefs on the same set of facts before the Adjudicating Officer. 7l On hearing, learned Member and Adjudicating Officer, MahaRERA vide impugned order came to the concluslon that complainants on the same set of facts cannot reopen the issue which has been already adjudicated upon by the Civil Court and the complaints being not maintainable on the principle of res iudicata came to be dismlssed. GROUNDS IN APPEAL 8l Being aggrieved unsuccessful allottees assalled the impugned order in present appeals on the following manifold grounds:- il The cause of action for seeking possession is fresh under RERA and complaints cannot be barred by principle of res judicata. iil Respondent No.1 was never a party to the suits and complaints are maintainable against respondent No.1 as respondent No.2 has transferred development rights to respondent No.1. iiil Under Section 79 of the Act, there is a bar to Civil Courts' 1-012s AToo6ooooooo31694c jurisdiction and complaints being filed under Section 31 of RERA are maintainable, ivl Despite Civil Court's judgments and decrees dated 15th October 2016, respondents have failed to deliver possession of flats as per agreements and in this background allottees have right to seek remedies under the provisions of RERA including compensation and damages. vl As Civil Court has allowed a specific performance of agreements, complaints cannot be held to be not maintainable as principle of res iudicata will not be attracted in such a case. vil Appellants have performed their part of obligations and as respondents failed to deliver possesslon in terms of agreements, allottees are entitled to seek reliefs before MahaRERA in view of the provisions of the Act. viil Learned Member and A.O. never asked parties to produce relevant papers in Civil Suits and without considering relevant material, held that complaints are barred by principle of res iudicata. On the basis of aforesaid grounds, appellants prayed to quash and set aside the impugned order and hold that complaints are maintainable. REPLY AND WRITTEN SUBMISSIONS OF RESPONDENTS. Respondent No.1 submitted that though it was not a 11l2s AT006000000031694G party to the suits, complaints are still not maintainable. In this connection, it is contended that there is no privity of contract between appellants and respondent No.1. There is nothing on record to indicate that appellants at any point of time had entered into any transaction with respondent No.1. It is submitted that agreements were executed by respondent No.2 in favour of respondent No.1 and accordingly respondent No.1 constructed five flats and handed over physical possession of five flats to respondent No.2. It is submitted that respondent No,1 has fulfilled its obligations qua respondent No.2. It is urged to dismiss the appeals with costs as appellants taking disadvantage of the provisions of RERA arrayed respondent No.1 as a party to the complaints though complaints are not maintainable for want of privity of contract between appellants and respondent No.1.
101 Respondent Nos. 2 to 5 strongly resisted the grounds in appeals vide their reply and written submissions. il It is contended that by virtue of development agreement dated 31st May 2002, respondent No.1 was appointed as developer for redevelopment of Sai Chhaya Bullding. Pursuant to development agreement, appellants entered into reglstered agreements for permanent alternative accommodation on 5th April, 2003 with respondent No.2. lil It is submitted that appellants filed civil suits before City t2/2s AT006000000031694G Civil Court for specific performance of contract against respondent No.2 and the suits came to be decreed vide judgment and decree dated 15th October, 2016 thereby directlng respondent No.2 to hand over possession offlats. iiil Appellants preferred First Appeals inter alia challenging the judgments and decrees and First Appeals are pending. ivl Appellants also filed Execution Applications before City Civil Court, Mumbai and pending hearing in Execution Applications, filed RERA complaints seeking identical reliefs on similar facts, In this background as principle of res judicata is attracted, complaints have been rightly held as not maintainable. These respondents too prayed to dlsmiss the appeals with costs.
111 Heard learned counsel for parties at length. Perused record. L2) Learned counsel for appellants reiterated the facts in complaints and subsequent developments mentioned in Appeal Memos. It is vehemently contended that causes of action for filing RERA complaints and Civil Suits are independent and considering object and scope of the Act, complaints ought to have been held maintainable by the learned Adjudicating Officer.
131 Learned counsel for appellants submitted that respondents failed to deliver possession and keep their promise to pay 1-3/2s AToo6ooooooo31694c compensation in case of failure to hand over possession on time and on such failure where would the appellants go. According to learned counsel principle of res judicata does not debar complainants from getting grievances redressed under the provisions of RERA and keeping in view object of the Act, doors of justice may not be shut for appellants in the given facts and circumstances of the case. l4l Per contra, learned counsel for respondents referring to the provisions of Section 11 of the Code of Civil Procedure, strenuously submitted that complaints on similar set of facts involving identical issues between the same parties are not maintainable and urged to dismiss the appeals with costs.
151 From the rival pleadings, submissions and documents placed on record, following points would arise for our consideration in these appeals and we have recorded our findings against each of them for the reasons to follow :- POINTS FINDINGS.
1 Whether complaints are In the negative' maintainable under Section 31 of the Act of 2016?
2 Whether impugned order is In the affirmative sustainable in law?
3 Whether order under challenge calls t4/2s for interference in these appeals? AT006000000031694G In the negative "53. Powers of Tribunal (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. (2) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure. (3) The Appellate Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Ad., 1872. (4) The Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of the following matters, namely - ts/2s REASONS
161 The principal controversy between the partles revolves round the principle of res judicata. There is no express provision in the Act on doctrine of res iudicata. In the absence of such provision core question that arises is whether provisions of Section 11 of the Code of Clvil Procedure can be made applicable to a complaint under RERA. Before adverting to the facts let us have a qulck glance at the relevant provisions of the Act in this regard. 17) Section 53 of the Act deals with powers of Tribunal. For ready referencef same is reproduced here as under ;- AT006000000031694G (e) Any other matter which may be prescribed".
181 Further Section 88 clarifies that provisions of the Act shall be in addition to, and not in derogation of provisions of any other law for the time being in force.
191 A conjoint reading of the provisions of RERA makes it clear that the Appellate Tribunal though not be bound by the procedure laid down in the Code of Civil Procedure, shall be guided by the principles of natural justice and have the powers to regulate its own procedure. It is a settled principle of law that party cannot invoke two remedies against same person for one cause of action. If this is so, aid to principle of res-judicata can be safely taken in present case.
201 Needless to state that in civil suit, it is a full-fledged trial whereas in complaints though remedy available is speedy the same is based on summary procedure. It ls undisputed that appellants filed civil suits before City Civil Court for specific peformance of agreements against respondent No.2. It is also not in dispute that the suits came to be decreed vide judgments and orders dated 15th October, 2016 and First Appeals are pending. Appellants have 16/2s AT006000000031694G categorially admitted that they filed Execution Proceedings before City Civil Court and in execution proceedings, respondents offered possession of flats to appellants, in pursuance to agreements for permanent alternative accommodation and directlons issued in civil suits. 2tl In view of the above unequivocal admissions it is now necessary to look into the reliefs sought by appellants in civil suits. Copies of plaints in suits have been placed on record. Prayer clause therein reads as follows :- "The plaintiffs therefore prays
a) For a judgment and decree against the defendants ordering them to specifically perform the agreement of permanent alternative accommodatlon dated 5th April, 2003 and to handover and put the plaintiffs ln possession of their respective allotted flat, completed in all respect, in the new building to be constructed in place and site of Sai Chhaya building at C-fS No.72417, at Hanuman Cross Road No.2, Ville Parle (East), lvlumbai 400 057.
b) For appointment of Court Receiver, High Court, Bombay as Receiver, in respect of the suit property place and site of Sai Chhaya building at CTS No.72417, at Hanuman Cross Road No.2, Ville Parle (East), lvlumbai 400 057, with specific powers under Order 40 Rule -1 to complete the construction of the suit building and put the plaintiffs and other tenants in possession of their respective premises on ownership basis as per the terms of the agreement dated 5th April, 2003.
c) For permanent injunction restraining the defendants through themselves their associates, partners, employees and assigns
11 /2s AT006000000031594G from dealing with, disposing off, alienating, assigning and/or creating third party rights or interest in respect of the suit property and/or the suit project i.e. the new buildlng project in place and site of Sai Chhaya Building at CfS No.72417, at Hanuman Cross Road No.2, Vile Parle (East) Mumbai 400 057 in any manner whatsoever. For mandatory injunction ordering and directing the defendants through themselves, their partners, servants, agents and assigns
(i) to take steps to get the dispute with the said Vasant S. Shinde, either settled, compromised and/or adjudicated, as expeditiously as possible by moving the Hon'ble High Court and obtaining suitable directions in the pending Contempt Petition No.162 of 2005 and getting the said restraint order dated 21't March 2006, suitably modified and/or vacated (ii) to immediately start the construction work of the bulldlng and complete the same in a time bound schedule and put the plaintiffs in possession of their respective flat (iii) to pay to the plaintiffs the arrears of compensation from April, 2007 to December, 2008 with interest at the rate of L2o/o per annum and to continue to pay Rs,10,000/- per month by 10th of each month from January 2009 till handing over the possession ofthe allotted flat with the additional allotted area, to the plaintiffs in the new building.
i) That any further and other reliefs be granted to the plaintiffs as may be found necessary in the circumstances of the case. That costs of the suit be provided for." Referring to prayer clause in suit, learned counsel for 78/2s AT006000000031694G appellants submitted that reliefs sought are based on independent causes of action as respondents have failed to deliver possession of flats despite agreements and judgments and orders in Civil Suits. 23) On perusal of RERA complaints, it appears that complainants' rights to file complaints flow from agreements for permanent alternative accommodation dated 5th 2003 and letters of allotment for additional area dated 1.5.2005. 24) On meticulous examination of plaints flled in Civil Suits it can be gathered that grievances of complainants in civil suits are also based on permanent alternative accommodation agreements dated 5.4.2003. Even reliefs sought in RERA complaints are identical to the reliefs sought in clvil suits. For the sake of convenience, reliefs in complaints sought are reproduced here as under :- "al That the respondents be ordered and directed to deliver the possession of the flat as agreed by the agreement of permanent alternative accommodation dated 5.04,2003 and Letter of allotment of additional area dated 1.05.2005 and so also as per the entitlement to have as per the existing development rules of I\4CGM. Or in the alternate The respondents, jointly or severally, be ordered to compensate the complainants by making payments of the amount equivalent to the amount required to acquire a flat of the area of the complainant's entitlement, in the same vicinity of their former residential building. April, 1912s
251 We have carefully perused judgments and decrees passed In civil suits. It can be seen that City Civil Court granted plaintiffs prayer for possession of agreed flats and also directed developer to start construction work of the building, complete the same In time bound schedule and put the plaintiffs in possession of their respective flats. Reliefs sought by the appellants for compensation in civil suits have not been allowed by the Clty Civil Court. Admittedly First Appeals and Execution Proceedings are pending. It would be apt to mention here that Code of Civil Procedure is a complete Code in itself 2012s AT006000000031694G b] That the respondents, either jointly or severally, be ordered and directed to pay damages of Rs.10,00,000.00 respectively to both the complainants for the mental agony, emotional trauma and psychological disturbance which they have been forced to undergo by Respondent by not giving complainant the possession of the flat as agreed by the Agreement of Permanent Alternative Accommodation dated 05.04.2003 and Letter of allotment of additional area dated 01.05.2005. (c) That the Respondents, either jointly or severally, be ordered to pay to the complainants Rs.7,50,000/- being the legal expenses incurred till date. (d) That the Respondents, either jointly or severally, be further directed to pay interest at the rate of Rs.150/o p.a. or any suitable rate of interest as it deem fit and proper in the circumstances of the case from 2005. (e) Any other and further order in the circumstances and in the interest of justice;" AT006000000031694G and takes care of almost all situations arising pre, post and during pendency of a lis between the parties. In this premise we do not find substance in the submission of appellants that they would be left remediless if complalnts are not restored. 26) The next point relates to the principle of res judicata on which complaints have been held not maintainable. On the law relating to principle of res judlcata, learned counsel for respondent Nos. 2 to 5, pressed into service following decisions of the Hon'ble Supreme Court:- il Lalchand (dead) by Legal Representatives and others -vs- Radha Krishan a(1977) 2 SCC 881 Jaswant Singh and another -vs- Custodian of Evacuee Propefi, New Delhi t(1985) 3 SCC 648I K. Ethirajan (dead) by LRs. -vs- Lakshmi and others [(2003) 10 scc s78] iiil 27) We have gone through the authorities referred by the learned counsel for respondent Nos. 2 to 5. It is well seltled that in order to attract the principle of res judicata following conditions must exist. il The matter directly and substantially in issue in the subsequent proceeding must be same matter which was directly and substantially in issue either actually or 21-l2s AT006000000031694G constructively in earlier proceedings; iil The former proceeding must have been one bewveen the same parties or between parties under whom they or any of them claim; iiil The parties must have litigated under the same title in the former proceeding; ivl The Court which decided the former proceeding must have been a Court competent to try the subsequent proceedings or the proceedings in which such issue is subsequently raised; vl The matter directly and substantlally in issue in the subsequent proceeding must have been heard and finally decided by the court in the earlier proceeding. 22/2s
281 It is now settled law that plea of res judicata can be given effect, if the litigating parties are same, subject matter of suit is identical, matter has been finally decided between the parties and suit has been decided by a court of competent jurisdiction. 29) In the cases on hand, it can be seen on minute scrutiny of pleadings in civil suits before Civil Court of competent jurisdiction and in later complaints before the Adjudicating Authority that the entire edifice of appellants' claim in suit and complaints rests on permanent alternative accommodation agreements executed between them and respondent No.2. It is further evident from the relief clauses in suits and complaints that appellants sought identical AT006000000031694G reliefs in complaints, It is not in dispute that respondent No.2 (formerly known as Jayesh Builders), was a party to the suits. It is also not in dispute that respondent Nos. 2 to 5 in present appeals stepped into the shoes of erstwhile respondent Jayesh Builders. As pleadings, issues involved and reliefs sought in suits and complaints are identical In nature and the list is between the same parties i.e. appellants and respondent No.2 (formerly known as Jayesh Builders). We are of the considered view that RERA complaints are not maintainable against respondent Nos. 2 to 5 as issues have been decided by the Court of competent jurisdiction and First Appeals and Execution Proceedings are pending.
301 So far as respondent No.1 is concerned, question of applicability of plea of res judicata would not arise for the simple reason that respondent No.1 was admittedly not a party to civil suits. Still question remains to be answered whether complaints against respondent No.1 are otherwise maintainable.
311 Respondent No.1 has raised objection regarding privity of contract to submit that complainants had not entered into any transaction or agreements relating to the subject flats with respondent No.1 and therefore, in the absence of privity of contract, complaintsY are not maintainable. 2312s AT006000000031694G
321 Appellants do not dispute that erstwhile respondent No'2 entered into agreements for permanent alternative accommodation with them. It is categorically admitted by appellants that they had no privity of contract with respondent No' 1 and their claim qua respondent No.1 is solely based on the development agreement executed by respondent No.2 in favour of respondent No'1' Appellants were not the parties to the development agreement' This being so complaints under Section 31 of the Act against respondent No.1 are also not maintainable.
331 In the above premise and on overall scrutiny of the material on record, we do not find merit in the contention of learned counsel for appellants that complainants can invoke provisions of RERA to seek redressal of thelr grievances against respondents'
341 Before we conclude, we make it clear that we have not expressed opinion on merits on the rival contentions of the parties as subject matter of appeals is in narrow compass relating to the maintainability of complaints. For the reasons recorded in foregoing paragraphs, we hold the complaints not maintainable' Appeals, therefore, being meritless deserve to be dismissed. Hence, the following order:- ORDER 24/2s AT006000000031694G il Appeals stand dismissed. iil No order to costs. iiil In view of the provisions of Section 44(4) of the Act, copy of the order shall be sent to the parties and to the learned Member & Adjudicating Officer, MahaRERA *r,,a(s:s. SA UNDT#6^rN, J.) 2s/2s