REAT Mumbai (2024.08.05) in Ajay.S/o Vijaykumar Jain Vs. M/s. Lucina Land Development Limited [(2024) ibclaw.in 101 REAT, APPEAL NO. AT006000000053394 0F 2021] held that;
Section 18 of the Act itself specifies that remedy under the said Section is "without prejudice to any other remedy available", which clearly acknowledges that such other remedies are also available to allottees.
"An election of remedies arises, when two concurrent remedies are available and aggrieved party chooses to exercise one, in which event, he loses the right to simultaneously exercise the other for the same cause of action."
On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint,
The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear, Further, Section 18 itself specifies that the remedy under said Section is "without prejudice to any other remedy available"
Therefore, it is clear that appellants are permitted to initiate proceedings under RERA by filling the captioned complaints before MahaRERA even though they had already filed consumer complaints earlier under the Consumer Protection Act, 1986.
The doctrine of election postulates that when remedies are available for the same relief the aggrieved party has the option to elect either of them but not both.
Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act,
There are three elements of election, namely, existence of two or more remedies: inconsistencies between such remedies and a choice of one of them. If any one of the three elements is not there, the doctrine will not app/y.
The existence of multiple remedies does not invoke the doctrine of election when those remedies are cumulative and consistent, allowing for simultaneous proceedings.
The Hon'ble Supreme Court in M/s Imperia Structures Ltd, u. Anil Patni and Anr it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes.
Section 18 of RERA states that its remedies are "without prejudice to any other remedy available." This allows for concurrent claims, especially when the nature of grievances differs, such as seeking regulatory compliance under RERA, while also claiming compensation under the Consumer Protection Act.
Statutory Provisions: Section 79 bars civil courts, but does not explicitly bar consumer forums, which are specialized tribunals distinct from civil courts. Therefore, Section 79 of the RERA Act does not affect the doctrine of election in the context of remedies under RERA and the Consumer Protection Act.
Excerpts of the Order;
Captioned appeals have been preferred under The Maharashtra Real Estate (Regulation and Development) Act, 2016 (in short, "the Act'), wherein, Appellants have challenged the two separate orders dated 30th July 202L passed by Maharashtra Real Estate Regulatory Authority ('MahaRERA), whereby the Complaint Nos.CC006000000195941 and CC006000000195945 came to be dismissed by concluding inter alia that
"...lf is prima facie evident from the declaration made by complainant whereby it is clear that the complainant is merely forum shopping,"
# 2. Respondent is the developer, who is constructing duly registered projects namely the" INDIABULLS GREEN-1 and GREENS-3" situated at Panvel, in Raigad district ("said Projects"). Appellants are flat purchasers in the said projects and are Complainants before MahaRERA For convenience, Appellants and Respondent will be addressed hereinafter as Complainants and Promoter respectively in their original status before Maha RERA,
# 3. Captioned appeals having common backgrounds, are arising out of common facts and are also raising identical questions of law. Accordingly, with the consents of the parties, both the captioned appeals have been heard together and are being disposed of by this common judgment as hereunder.
Brief backgrounds giving rise to the appeals: -
# 4. Complainants Case; -
a. Complainants have booked flat Nos. L6A-3207 and 20C-3504 for total considerations of Rs.44,91,900/- and Rs.73,5 t,4001- respectively. Complainants have also paid Rs.9,26,t40l- and Rs.15,30,8691- respectively towards the part consideration of the costs of the flats.
b. On account of alleged delay in construction of the project, agreements for sale were not executed between the parties and captioned complaints also came to be filed by Appellants before MahaRERA on 8th February 202t praying for several reliefs inter alia for refund of paid amounts together with interest and compensation besides costs.
c. Promoter opposed the reliefs prayed for in the complaints by appearing before MahaRERA and raised, preliminary objections by submitting that captioned complaints are not maintainable in view of the facts inter alia that very same appellants have already filed two separate separate consumer complaints Nos. 1682 of 2019 and 1683 of 2019 on December 2019 under Consumer Possession Act 1986 (say "CP Act') before the Hon'ble State Consumer Dispute Redressal Commission seeking similar reliefs.
d. After hearing the parties, MahaRERA disposed of the captioned complaints by dismissing these by concluding inter alia that complainants are doing forum shopping. Therefore, complaints are not maintainable, vide two separate impugned orders dated 30th July 202L.
e. Aggrieved by these impugned orders, Complainants have preferred the instant appeals seeking inter alia to quash and set aside the impugned orders by allowing the captioned complaint.
# 5. Heard learned counsel for parties in extenso.
6. Complainants have sought reliefs by submitting that; -
a. At the time of the hearing on 15th June 202L before MahaRERA, while considering the maintainability of the captioned complaints inter alia on the ground of the pendency of the aforesaid consumer complaints seeking similar reliefs, Complainants did file written submissions along with the judgment of The Hon'ble Supreme Court of India in the case of M/s. Imperia Structures Ltd. Vs. Anil Patni and Anr. Civil appeal no. 3581 - 3590 of 2O2O, which directly and squarely deals with inter alia the issue of maintainability. However, MahaRERA dismissed the captioned complaints without even referring to this judgment despite the authoritative pronouncement of the Hon'ble Supreme Court in the said judgment.
b. Remedies available to complainants under the provision of the CP Act are additional remedies over and above the other remedies including those available under any special statutes and there is no bar on the availability of alternate remedy in respect of the complaints under the CP Act.
c. Principles of Res judicata and Res sub judice do not apply to the proceeding before any forum other than the Civil Court to which, the Code of Civil Procedure 1908 (CPC) applies, whereas MahaRERA is not a Civil Court and CPC does not apply to it.
d. Section 79 of the Act specifically bars the jurisdiction of the Civil Courts, and the Consumer Dispute Redressal forums/Commissions cannot be called as Civil Courts.
e. Section 88 and 89 of the Act clearly clarifies that provisions of the Act would be in addition to and not in derogation of any other law and that the provisions of the Act would have effect, notwithstanding anything inconsistent in any other law in force. Accordingly, MahaRERA ought to have appreciated the provisions of section 88 of the Act.
f. The Act entitles complainants, who had initiated the proceedings under the CP Act to withdraw proceedings under the CP Act as well as to file an appropriate application before Adjudicating Officer /MahaRERA. This is a right or option available to complainants and therefore, such rights or options cannot force complainants to withdraw such complaints.
g. If the said consumer complaints under CP Act are already initiated before the Act came into force, then there is nothing in the Act, which bars initiations of current proceedings under RERA as well.
h. As such, Section 18 of the Act itself specifies that remedy under the said Section is "without prejudice to any other remedy available", which clearly acknowledges that such other remedies are also available to allottees.
i. Availability of another parallel remedy is clearly recognised by the Act itself under the proviso to the Section 71 (1), by which an Allottee may continue with an application already filed before the consumer protection for a. As such, Complainants have been given this right or choice to withdraw such complaints by which, complainants cannot be forced to withdraw earlier complaints and file another application before Adjudicating Officer, MahaRERA read with Section 88.
j. As per Section 100 of the Consumer Protection Act, 2019, provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Hence the remedy available under the Act is an additional remedy. Accordingly, complainants are entitled to appropriate relief, if any deficiency on the part of the promoter in rendering services to complainants are proved.
k. Jurisdiction of the for a, duly constituted under the CP Act is not ousted on account of the Civil Suit having been instituted even if, the subject matter of the suit is similar to the subject matter of the consumer complaint. Jurisdiction of the for a is not barred, and it is only the Jurisdiction of the Civil Court in respect of certain matters alone is barred.
l. Consumer complaint is still pending for adjudication before the Hon'ble Commission. Thereby, complainants never have any intention for forum shopping, which has been misconstrued by MahaRERA.
m. For a has jurisdiction to entertain a complaint despite the fact that other forums / courts / tribunal if, it also has jurisdiction to adjudicate upon the matter. Therefore, complaint is maintainable, and the impugned orders are thus unsustainable and deserve to be set aside.
# 7. Per Contra, Promoter refuted the captioned claims of the complainants by submitting that the impugned orders are well founded and reasoned, passed in accordance with the law and warrant no interference on account of the followings; -
a. Admittedly, complainants have filed consumer complaints before consumer forum and have also filed the captioned complaints seeking identical reliefs. Moreover, the complaints filed before the consumer dispute redressal Commission are still pending. Thereby complainants have taken misconceived stance that entitled them to pursue identical reliefs simultaneously before two different and multiple forums.
b. Impugned orders have correctly observed in its para 8 that
"...complainant has nowhere stated that he has withdrawn the complaint before the Hon'ble State Consumer Dispute Redressal Commission and / or he has made no submissions about his intention to withdraw the same...,.."
MahaRERA has held that while the Complainants have the option either to pursue their claims for compensations/ refunds/ interests before consumer forum or before MahaRERA under the Act, but not at both forums simultaneously. Such options necessarily mean that complainants must elect for one or the other remedy and does not mean that complainants can simultaneously pursue both.
c. As such, the Hon'ble Supreme Court in its judgment in the case of M/s. Imperia Structures Ltd, Vs, Anil Patni and Another [5 2020 (10) SCC 783J, M/s. Imperia Structures Ltd. Vs. Anil Patni and Another [5 2020 (1O) SCC 783J, actually supports the conclusion/s made in the impugned orders and also validates the case of the promoter more particularly in its para nos. 31 and 32 of the judgment, wherein, it specifically recognises that the Act only provides allottees, option/ right to choose any one forum to pursue their claims and it does not go so far as to provide a license to pursue simultaneous actions before multiple forums. Therefore, the Act only envisages a "choice" to complainants, whether to pursue remedies under the CP Act or under the RERA Act of 20t6 but not before both the forums simultaneously for the same remedies on account of very same cause of action/s.
d. Hon'ble Supreme Court in the case of IREO Grace Realtech (P) Ltd. VS Abhishek Khanna, has discussed the interplay between the provisions of the Act and the Consumer Protection Act of 2019 and observed that
"An election of remedies arises, when two concurrent remedies are available and aggrieved party chooses to exercise one, in which event, he loses the right to simultaneously exercise the other for the same cause of action."
e. Without prejudice to the above, the complaints are not maintainable even under section 19(4) of the Act, and/ or on the grounds that the Appellants are not allottees because the forms filed by them are not "agreements for sale" within the meaning of the Act. Therefore, if either of the two conditions are not satisfied then, Section 19(4) cannot apply to the instant disputes/ claims/ complaints. Agreements for sale have not been executed and only the provisional application forms have been filed.
# 8. Upon hearing the parties, perusal of material on record, solitary point that arises for our determination is whether, common impugned orders dated 30th July 2021, passed by MahaRERA calls for interference in this appeal as prayed for by Complainants and to this our finding is in the negative for the reasons to follow; -
REASONS
# 9. It is not in dispute that complainants have booked two separate flats in the respondent's said duly registered project and have also made part payments towards the costs. Therefore, as per para 86 of the judgment of The Hon'ble Bombay High Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. & Anr. Vs. Union of India & Ors. [(2017) SCC Online Bom 9302), provisions of the Act of 2016 are applicable for these sales transactions, appellants herein are allottees and respondent is the promoter under the Act. Agreements for sales have not been executed. It is also not in dispute that appellants have filed two separate complaints on 8th February 2021 before MahaRERA on account of the alleged delay in project construction. These two complaints before MahaRERA, are in addition to their earlier consumer complaints filed by appellants before the Consumer Disputes Redressal forum under the Consumer Protection Act, 1986 in December 2019, praying for similar reliefs. Admittedly, these consumer complaints are still pending for adjudication before the consumer for a. As observed in para 8 of the impugned order, appellants have expressed their no intentions to withdraw consumer complaints even after filing of these captioned complaints subsequently before MahaRERA on 8th February 2021 under the Act citing provisions of Section 71 of the Act and also based on various other grounds as set out herein above.
# 10. It is the case of the complainants that even though the judgment of the Hon'ble Supreme Court in the case of M/s. Imperia Structures Ltd. Vs. Anil Patni and Another (supra), was filed before MahaRERA along with written submissions well before time, even then, this has not been considered by MahaRERA, while passing the impugned orders, Complainants are entitled to pursue concurrently both these two sets of complaints filed under the Act before MahaRERA as well as under Consumer Protection Act, 1986 despite having similar reliefs prayed therein. It is because these two forums are having concurrent jurisdictions and appellants are entitled for the concurrent remedies available under these two Acts, which have no primacy/precedence of one over the other. Additionally, Complainants are also entitled to avail both these two available options or the rights under the law and accept any one of these outcomes, whichever is faster, better and advantageous to complainants. It is subject to the only condition that complainants are required to disclose the outcome/s of the one, which is issued earlier to the other forum for appropriate adjustment and appropriation of the same by that forum.
# 11. Whereas the case of the promoter is that based on the doctrine of election, the RERA Act provides allottees, option/ right to choose any one forum to pursue their claims only at one forum and it does not go so far as to provide a license to pursue simultaneous actions before multiple forums. Therefore, the Act only envisages a "choice" to complainants, whether to pursue remedies under the Consumer Protection Act or under the RERA Act of 2016 but not before both the forums for similar reliefs on account of very same cause of action/s, Accordingly, complainants are specifically barred from pursuing both these two sets of the complaints seeking similar reliefs before two different forums concurrently based on the doctrine of election as has been rightly decided by MahaRERA.
# 12. Accordingly, the moot question for consideration before us is whether complainants are entitled to pursue prosecution of these two sets of complaints praying for similar reliefs till their final outcomes / logical conclusions?
# 13. It is pertinent to note that these issues are not res integra and these have been comprehensively examined by the Hon'ble Supreme Court in multiple judgements as follows;
# 14. The Hon'ble Supreme Court in the case of M/s. Imperia Structures Ltd. Vs. Anil Patni and Anr. (supra) has dealt with these issues extensively as follows; -
"22. Before we consider whether the provisions of the RERA Act have made any change in the legal position stated in the preceding paragraph, we may note that an allottee placed in circumstances similar to that of the Complainants, could have initiated following proceedings before RERA Act came into force.
A) If he is satisfied of the requirements of being a "consumer" under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.
B) However if he did not fulfill the requirements of being a "consumer he could initiate and avail only normal civil remedies.
C) If the agreement with the developer or the builder provided for arbitration:-
i) in cases covered under Clause 'B Herein above he could initiate or could be called upon to invoke the remedies in arbitration,
ii) in cases covered under Clause A herein above, in accordance with law laid down in Emaar MGF Ltd and Anr Vs, Aftab Singh, he could still choose to proceed under the CP Act,
24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.
25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.
26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 herein above, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called "consumers" within the meaning of the CP Act, two questions would arise;
a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and
b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.
27, In Malay Kumar Ganguli vs. Dr, Sukumar Mukherjee, it was held by this Court: - "The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court, (See Bharat Bank Ltd. V, Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corpn ". On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint,
28. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant. Again, in so far as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation, The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear, Further, Section 18 itself specifies that the remedy under said Section is "without prejudice to any other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.
29. It was however urged that going by the objective or the purpose for which the RERA Act was enacted and considering the special expertise and the qualifications of the Chairpersons and Members of the Authority (Section 22) and the Appellate Tribunal (Section 46), such authorities alone must be held entitled to decide all issues concerning the Prolect registered under the RERA Act. It was submitted that if the allottees were to be permitted to initiate parallel proceedings before the fora under the CP Act, the financial drain on the promoter would render completion of construction an impossibility and, therefore, the RERA Act in general and Section 89 in particular be construed in such a way that all the issues pertaining to the concerned project be decided only by the authorities under the RERA Act. Even with acceptance of such interpretation, the allottees would still be entitled to approach the authorities under Section 18 of the RERA Act,
30. It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes we must go by the purport of Section 18 of the RERA Act. Since it gives a right "without prejudice to any other remedy available in effect, such other remedy is acknowledged and saved subject always to the applicabi/ity of Section 79.
31. At this stage, we may profitably refer to the decision in Pioneer Urban Land and Infrastructure Limited and another vs. Union of India and another, where a bench of three Judges of this Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, RERA Act and other legislations including the provisions of the CP Act, One of the conclusions arrived at by this Court was: - “100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code."
32, We, therefore, reject the submissions advanced by the Appellant and answer the questions raised in paragraph 26 herein above against the Appellant, "
# 15. Therefore, it is clear that appellants are permitted to initiate proceedings under RERA by filling the captioned complaints before MahaRERA even though they had already filed consumer complaints earlier under the Consumer Protection Act, 1986.
# 16. Now the questions before us for consideration is whether, appellants are also entitled to continue to pursue and prosecute till the end of these two sets of the complaints filed under two different Acts simultaneously and concurrently before both the forums until their logical conclusions/ outcomes of the captioned complaints and whether the two sets of complaints filed under two different Acts are legally sustainable? Will it not entail possibility of conflicting outcomes?
# 17. Foregoing discussions show that the controversies revolved around the doctrine of election, which has also been examined comprehensively by the Hon'ble Supreme Court in its Judgment dated January 11, 2O21, in the case of IREO Grace Realtech Pvt, Ltd Vs. Abhishek Khanna & Ors. as follows.
"8. The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate, and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity"
The "doctrine of election is a branch of "rule of estoppel,, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when remedies are available for the same relief the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case,
Section 88 of the RERA Act makes the position clear Section 18 of the RERA Act specifies that the remedies are without prejudice to any other remedy available. We place reliance on this judgment, wherein it has been held that :
"31. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act, The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant,
32, Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation, The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear further Section 18 itself specifies that the remedy under the said section is without prejudice to any other remedy available. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act,
# 18. The Hon'ble Supreme Court has further dealt with this issue in greater details in its judgment in the case of M/s. Experion Developers Vs. Sushma Ashok Shiroor (2022) SCC online SC 416) as follows;
12. This question is no more res integra. In Imperia Structures Ltd v. Anil Patni, this Court speaking through Justice Uday Umesh Lalit, examined the jurisdiction of Consumer Forums vis-a-vis the specific remedies created under the RERA AcL This judgment comprehensively deals with all aspects of parallel remedies available to the consumers under the Consumer Protection Act, 1986 and the RERA Act, 2016. In Imperia Structures, also, like in the present case, the proceedings arose out of the decision of the Commission under the Consumer Protection Act, 1986, After a comparative analysis of both the statutes, this Court held inter alia as under:
"23. It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act. From the two decisions referred to by us, it is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other, in fact, this Court has held that they are concurrent remedies operating independently and without primacy, When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion.
14,2 When Statutes provide more than one judicial fora for effectuating a right or to enforce a duty-obligation, it is a feature of remedial choices offered by the State for an effective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonize the provisions in a constructive manner.
# 19. Learned counsel for the complainants further submitted that The Hon'ble Supreme Court in the case of Rajnesh Vs. Neha and Others [(2021) 2 Supreme Court Cases 3247, has clarified that in case of conflicting and overlapping jurisdictions, both complaints will continue to have concurrent remedies without any primacy of one over the other and only requirement is to disclose the earlier order passed to other forum for appropriate adjustment/ appropriation.
Conflicting judgments on overlapping jurisdiction
52. Some High Courts have taken the view that since each proceeding is distinct and independent of the other, maintenance granted in one proceeding cannot be adjusted or set-off in the other. For instance, in Ashok Singh Pal v Manjulata, the Madhya Pradesh High Court held that the remedies available to an aggrieved person under S. 24 of the HMA is independent of S.125 of the Cr.P.C. In an application filed by the husband for adjustment of the amounts awarded in the two proceedings, it was held that the question as to whether adjustment is to be granted, is a matter of judicial discretion to be exercised by the Court, There is nothing to suggest as a thumb rule which lays down as a mandatory requirement that adjustment or deduction of maintenance awarded u/s. 125 Cr,P,C. must be off set from the amount awarded under 5.24 of the HMA, or vice versa.
61. To overcome the issue of overlapping jurisdictions, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount, If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceedings.
# 20. Foregoing discussions reveal that the doctrine of election is applicable in the following circumstances: -
a. The doctrine of election contemplates that when two remedies are available for the same reliefs, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to this rule.
b. The Hon'ble Supreme Court further held in the case of M/s. Transcore v. Union of India, [(2008) 1 SCC 125] considered the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) and the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDDB Act), wherein, it was held that
i. In the light of the above discussion, we now examine the doctrine of election, There are three elements of election, namely, existence of two or more remedies: inconsistencies between such remedies and a choice of one of them. If any one of the three elements is not there, the doctrine will not app/y. According to American Jurisprudence, 2d, Vol. 25, page 652, if in truth there is only one remedy, then the doctrine of election does not apply.
ii, Section 13 deals with enforcement of security interest, therefore, the remedies of enforcement of security interest under the NPA Act and the DRT Act are complementary to each other, There is no inherent or implied inconsistency between these two remedies under the two different Acts, Therefore, the doctrine of election has no application in this case.
iii. Section 35 gives an overriding effect to the NPA Act with all other laws if such other laws are inconsistent with the NPA Act. As far as the present case is concerned, the remedies are complementary to each other and, therefore, the doctrine of election has no application to the present
iv. In the present case, as stated above, the NPA Act is an additional remedy to the DRT AcL Together, they constitute one remedy and, therefore, the doctrine of election does not apply.
v. Even according to Snell's Equity (Thirty-first Edition, page 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election, which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application. In our view, the judgments of the High Courts which have taken the view that the doctrine of election is applicable are erroneous and liable to be set aside,
c, The judgment in Transcore vs Union of India was subsequently followed in Mathew Varghese v. M. Amritha Kumar, wherein it was held that:
"46. A reading of Section 37 discloses that the application of the SARFAESI Act will be in addition to and not in derogation of the provisions of the RDDB Act. In other words, it will not in any way nullify or annul or impair the effect of the provisions of the RDDB Act.
d. This doctrine would not apply to cases, where the ambit and scope of the two remedies is essentially different.
e. The existence of multiple remedies does not invoke the doctrine of election when those remedies are cumulative and consistent, allowing for simultaneous proceedings.
f. Concurrent Remedies: The doctrine does not apply when multiple remedies are available which are not inconsistent.
# 21.In this background, let us now examine, whether the doctrine of election is applicable in the context of the RERA Act of 2016 and Consumer Protection Act, 1986?
a. The Statement of Objects and Reasons of the Act, 2016 and CP Act are different. The Statement of Objects and Reasons of the RERA Act, 2016 shows that the real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and standardization and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector.
b. The remedies available under the Real Estate (Regulation and Development) Act, 2016 (RERA) are also different from those under the Consumer Protection Act, 1986 (CPA). The key points are:
i. The CP Act and RERA are separate legislations with different objectives. RERA primarily aims to regulate the real estate sector and protect consumer interests, while the CPA provides a mechanism for consumers to file complaints against deficiency of services. RERA focuses on regulatory compliance and project completion.
ii. Remedies under RERA include project registration, project completion within stipulated timelines, and penalties for violations. The CP Act allows consumers to file complaints for deficiency of services and unfair trade practices and seek compensation.
iii. Two remedies are not analogous, consistent and concurrent.
iv. The nature, ambit and scope of the proceedings under the two Acts
c. The Hon'ble Supreme Court in M/s Imperia Structures Ltd, u. Anil Patni and Anr it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes.
d.The Hon'ble Supreme Court in its Judgment dated January11, 2O21, in the case of IREO Grace Realtech Pvt. Ltd Vs. Abhishek Khanna & Ors. as follows.
The proviso to the section 71 of the Act thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act.
20.9 An allottee may elect or opt for one out of the remedies provided by law for redressal of its injury or grievance. An election of remedies arises when two concurrent remedies are available, and the aggrieved party chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action.
20.10 The doctrine of election was discussed in A,P State Financial Corporation v. M/s GAR Re-rolling Corporation, in the following words: -
"15. The Doctrine of Election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them, but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different,
20.11 In a recent judgment delivered by this Court in M/s Imperia Structures Ltd, v, Anil Patni and Anr it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear, Section 18 of the RERA Act specifies that the remedies are -without prejudice to any other remedy Available,'
e. Section 18 of RERA states that its remedies are "without prejudice to any other remedy available." This allows for concurrent claims, especially when the nature of grievances differs, such as seeking regulatory compliance under RERA, while also claiming compensation under the Consumer Protection Act.
f. Statutory Provisions: Section 79 bars civil courts, but does not explicitly bar consumer forums, which are specialized tribunals distinct from civil courts. Therefore, Section 79 of the RERA Act does not affect the doctrine of election in the context of remedies under RERA and the Consumer Protection Act.
g. Statutory Provisions: Section 88 of the RERA Act significantly impacts the doctrine of election by clarifying that the provisions of RERA are "in addition to, and not in derogation of, the provisions of any other law, indicating that RERA remedies are concurrent with other laws like the Consumer Protection Act and allow for recourse to multiple remedies without negating the right to pursue them concurrently under RERA without losing the right to seek remedies under the Consumer Protection Act. This provision effectively creates an exception to the doctrine of election, allowing for concurrent claims as long as they address different aspects of the grievance/s.
# 22. Therefore, appellants flat purchasers are not restricted to a single remedy under the RERA Act of 2016 alone and may choose multiple avenues for redressal/reliefs, enhancing their options for legal recourse including under the CP Act to enhance their protection and access to justice.
# 23, From the above, it is crystal clear that remedies sought under CP Act 1986 are additional one over and above the other remedies prayed for under RERA and that the availability of an alternate remedy is no bar embargo in entertaining a complaint under the CP Act 1986. Hence, there is no bar in entertaining and pursuing the said two sets of complaints filed before two forums under the Act of 2016 and also under CP Act till their final outcomes subject to the satisfaction of certain conditions as illustrated above with respect to the non applicability of doctrine of election.
# 24. In this background, let us now consider, whether the appellants here in are entitled to pursue both sets of captioned complaints filed before MahaRERA and also before consumer forum under the CP Act till their outcomes?
# 25. Diligent perusal of the reliefs prayed for in the captioned complaints filed before MahaRERA (page 54) and of the complaints filed under CP Act, 1986 (page 373), clearly demonstrates that appellants are seeking inter alia refund of the total paid amounts together with interests and compensations as well as costs in both sets of the complaints. Therefore, the reliefs prayed for in both the complaints filed under both the Acts are quite same and are of similar in nature. Moreover, the cause of action is also same. This has also been expressly admitted by the parties during their oral submissions.
# 26. Whereas, Hon'ble Supreme Court in its Judgment dated January 11,2021, in the case of IREO Grace Realtech Pvt. Ltd Vs. Abhishek Khanna & Ors. has held that "An election of remedies arises when two concurrent remedies are available, and the aggrieved party chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action. Besides, the doctrine of election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them, but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different",
# 27. In view of the above judicial pronouncements, the doctrine of election is squarely applicable to the present appeals. Thus, we have come to the conclusion that appellants are not entitled to continue to pursue prosecution of both the sets of the complaints filed under the RERA Act of 2016 and under CP Act, 1986 concurrently/simultaneously. It is for the appellants to elect only one out of these two available options to continue prosecution of the complaints filed under these two Acts and not under both. It is not in dispute that appellants have chosen not to withdraw their complaints filed under the Consumer Protection Act. Therefore, the captioned complaints filed under the RERA Act have become legally unsustainable in view of the law laid down by the Hon'ble Apex Court as above
# 28. Thus, we have come to the conclusion that appeals are devoid of merit and liable to be dismissed as well as the impugned orders do not suffer from any infirmities. We, accordingly, answer the solitary point in the negative and proceed to pass the following order: -
ORDER
a. Both the captioned appeals stand dismissed.
b. Parties shall bear their own costs.
c. In view of provision of Section 44(4) of RERA Act, 2016, copy of this order be communicated to the parties and MahaRERA.
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