NCDRC rules consumer court and RERA cannot be approached on same complaint

The National Consumer Disputes Redressal Commission (NCDRC) recently dismissed a complaint filed against a building developer on finding that the complainant had already approached an authority under the Real Estate (Regulation and Development) Act (RERA) on the same issue. [A Infrastructure limited v Macrotech Developers limited].NCDRC Presiding Member Ram Surat Ram Maurya and Member Bharatkumar Pandya opined that in order to avoid multiplicity of proceedings and contradictory judgments on the same issue between the same parties, the doctrine of "estoppel by election of remedy" has to be applied..The NCDRC, therefore, rejected the argument of the complainant that Section 18 of the RERA indicated that both the consumer court and the RERA tribunals could be approached by an aggrieved person.On finding that appeals on the same complaint were pending before an appellate tribunal under the RERA, the NCDRC dismissed the consumer complaint as not maintainable."Therefore, the present complaint is barred on estoppel by election of remedy and is liable to be dismissed as not maintainable... the complaint is dismissed as barred on principles of ‘estoppel by election’ of remedy and not maintainable," the NCDRC held..The dispute concerned a group housing project called "Trump Tower" that was to be developed in Mumbai. The complainant was a company named Kanoria Energy & Infrastructure Limited, which raised a dispute over the developer's (opposite party) alleged failure to hand over the possession of two flats on time. .The NCDRC was informed that the complainant had earlier filed two complaints with the Maharashtra Real Estate Regulatory Authority for a refund of money. The two complaints were dismissed in June 2022 and appeals challenging this decision were pending before an appellate authority. Meanwhile, in September 2022, the complainant also approached the NCDRC alleging a deficiency of service on the part of the developer. The developer challenged this consumer court complaint on the ground that the complainant had already chosen to avail remedies provided by the RERA. The developer also submitted that the complainant had also approached the National Company Law Tribunals in Delhi and Mumbai on related matters, which were also pending. It was the complainant's argument that Section 18 of the RERA lays down that its remedies were ‘without prejudice to any other remedy.’The complainant, therefore, asserted that the complainant was also allowed to avail remedies under the Consumer Protection Act, 2019, which was in addition and not in derogation of any other law..After considering the rival submissions, the NCDRC favoured the developer's stance that the doctrine of estoppel by election barred the consumer court from entertaining the complaint in this case. "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 NCDRC held. .NCDRC also declined to rely on certain judgments cited by the complainant to argue that the consumer complaint was maintainable, after noting that the cited judgments did not deal with the doctrine of estoppel by election.In this case ‘estoppel by election’ was not in issue nor any precedent has been laid down in this respect. In order to avoid multiplicity of proceedings and contradictory judgments on same issue between the same parties, estoppel by election of remedy has to be applied," the NCDRC said, before dismissing the consumer complaint. .Senior Advocate Devdatt Kamat along with advocates Nishanth Patil, Ayush P Shah and Harsh Pandey represented the complainant.Advocates Rahul Kripalani, Suhasini Sen, Rea Bhalla, Supraja V, Surbhi and Aditya Chauhan appeared for the opposite party..[Read Order]