National Consumer Disputes Redressal Commission: In a matter initiated through consumer complaint seeking refund of amount paid along with interest wherein, the buyer of flat had proceeded legally through various remedies including Maharashtra Real Estate Regulatory Authority (MahaRERA), Ram Surat Ram Maurya, J., Presiding Member and Bharat Kumar Pandya, Member of NCDRC dismissed the matter on the ground of maintainability being a complaint barred on estoppel by election of remedy.
Factual Matrix
A. Infrastructure Limited (now Kanoria Energy & Infrastructure Limited) filed a consumer complaint seeking directions for Macrotech Developers to refund Rs 22,61,50,308 with interest @18% p.a., pay Rs 10 Crores as compensation for escalation of price, pay Rs 11 Crores as compensation for mental agony and harassment and pay Rs 2 Crores as litigation costs with any other relief as deemed fit.
It was alleged that after Macrotech Developers launched a group housing project in the name of ‘Trump Tower’ in Mumbai in 2014 widely publicizing its amenities and facilities, the A. Infrastructure booked a 3BHK flat priced at Rs 9,60,25,320 with deposit of booking amount of Rs 9 lakhs, a 4BHK flat priced at Rs 11,36,55,015 with deposit of booking amount of Rs 1,09,12,070. Two agreements to sell were accordingly executed in favour of A. Infrastructure on 27-11-2014. The agreement targeted 31-12-2018 for handing over fit-out possession and also provided for 1 year grace period with the purchasing having right to terminate agreement within 90 days of expiry of grace period and seek refund of entire amount with interest @12% p.a. After repeated queries, it was informed that the possession would be given in financial year 2020-2021, which led A. Infrastructure to terminate the agreements and ask for the refund. Meanwhile, it was informed that occupation certificate was obtained, and possession was initiated from ground floor. On 21-08-2020, the matter was complained before the MahaRERA which were dismissed; therefore, instant complaint was filed for deficiency in service.
NCDRC’s Analysis on ‘Estoppel by Election’
Commenting on the A. Infrastructure availing multiple/alternative remedies, the Commission expressed that “Intentional exercise of a choice between the alternatives bars the persons making the choice from the benefit of the one not selected on the principle of ‘estoppel by election’.”
The Commission threw light on the recognition of e doctrine of ‘estoppel by election’ in matter of remedies in case wherein two or more concurrent remedies are available for the litigant while opting for such remedy, with reference to A.P. State Financial Corpn. v. Gar Re-Rolling Mills, (1994) 2 SCC 647; IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241 and Vodafone Idea Cellular Ltd. v. Ajay Kumar Agarwal, (2022) 6 SCC 496 wherein, it was held that the allottee may elect or opt for one of the legal remedies available for redressal of its injury or grievance. The Commission explained that “An election of remedy arises when two concurrent remedies are available and the aggrieved party chooses to exercise one, in which event he loses his right to simultaneously exercise the other for the same cause of action.”
The Commission further highlighted A. Infrastructure’s reliance on Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416 while the case itself clarified that the remedies available under the Consumer Protection Act, 1986, Real Estate (Regulation and Development) Act, 2016 and Insolvency and Bankruptcy Code, 2016 were concurrent, which was also followed in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241.
Considering the question of whether the expression “without prejudice to any other remedy available” used in Section 18 of RERA Act permitted the complainant to avail remedy under CP Act, 2019 while pursuing remedy on some other issue under RERA, the Commission noted that Section 18 is a substantive legal provision which protects any other remedy available, and for enforcement of such remedy, a complaint has to file complaint under Section 31 RERA.
Conclusion
The Court clarified that in the instant matter, ‘estoppel by election’ was not in issue, and that estoppel by election of remedy has to be applied for avoiding multiplicity of proceedings and contradictory judgments on same issue between the same parties. Considering dismissal of complaints before MahaRERA on 27-06-2020, and the matter being proceeded with before the appellate authority, the Commission held the instant complaint barred on estoppel by election of remedy and dismissed the same on the ground of maintainability.
[A. Infrastructure Limited v. Macrotech Developers Ltd., Consumer Case No. 182 of 2022, Order dated 20-09-2023]
Order by: Presiding Member Justice Ram Surat Ram (Maurya)
Advocates who appeared in this case :
For Complainant: Senior Advocate Devdatt Kamat, Advocate Nishanth Patil, Advocate Ayush P. Shah, Advocate Harsh Pandey
For Opposite Party: Advocate Rahul Kriplani, Advocate Suhasini Sen, Advocate Rea Bhalla, Advocate Supraja V., Advocate Surbhi, Advocate Aditya Chauhan
