Deepa Sharma, President Member
1. The present Consumer Complaint is filed under Section 58(1)(a)(i)(ii) accompanied with Application under Section 35(1)(c) of the Consumer Protection Act, 2019 (hereinafter referred to as the “Act”) in a representative capacity by the Complainants belonging to the “Dasnac-Jewel of Noida Project/ Phase 1” (hereinafter referred to as “Project”) of the Opposite Party No. 1, the Builder, NOIDA Authority and office of Deputy Registrar, Firms, Societies and Chits.
2. Brief facts of the case as per the Complaint are that the Complainants are living in the said Project after having paid the entire sale consideration, stamp duty, registration charges etc. to the Opposite Party No.1 and other Authorities concerned. The Complainants are raising issues of difference in area, maintenance, misrepresentations, deficiency of service and unfair and restrictive trade practices among other things on the part of the Opposite Party No. 1 and have asked for refund of the excess farmer’s compensation from all the Opposite Parties. They also sought audited and certified account of maintenance from Opposite Party No.1.
3. The Opposite Party No. 1 was allotted land by the NOIDA Authority to develop the entire land in various phases which includes the Project and to develop and complete the same which is in essence a Group Housing Complex. The Opposite Party No. 1 advertised in electronic and print media that the Project will have state-of-the-art facilities and amenities. Having seen the various advertisements, the Complainants applied for their respective units/apartments in the said Project. The details are stipulated in the respective allotment letters and agreements of the Buyers. The Units were purchased under different plans by different Complainants which are detailed in the various agreements filed as Annexures.
4. On 29.11.2017, the Opposite Party No. 1 was given a Completion Certificate from the Noida Authority and from 02.12.2017; the process of giving possession of the Units to the Buyers was started. Different Complainants were offered different dates of possession. From 2018 onwards, the Registry/Sale Deed for the super structure of residential units and sub-lease deed for land was executed. Maintenance Agreement was executed as well between the various Complainants/Buyers and the Opposite Party No. 1. Various correspondences were exchanged between the Complainants and the Opposite Party No. 1 with regard to their issues such as excessive Super Area and maintenance charges.
5. Aggrieved by the services provided by the Opposite Party No. 1, the Complainants have filed their Complaint in a representative capacity before this Commission with the following prayers:
A. Allow the present complaint; and;
B. Direct the O.P. No. 1 to pay the Complainant Rs.10,00,000/- each towards punitive damages for gross negligence, gross deficiency in services, misrepresentations and unfair trade practices along with interest @ 18% p.a., from the date of filing of Complaint till realisation; and
C. Direct the O.P. No. 1 to pay the Complainants Rs.10,00,000/- each as compensation towards the mental harassment, mental pain and agony meted out to the Complainant by the O.P. No. 1 along with interest @ 18% p.a. from the date of filing of Complaint till realisation; and
D. Direct the O.P. No. 1 to pay to the Complainants litigation costs and also such expenses as the Hon’ble Commission may deem fit and proper towards travel expenses, incurred by the Complainants in their visits to the site, courier/postage charges etc. incurred in corresponding with OPs, telephone calls to his Counsels, along with such interest till the date of realisation as this Hon’ble Commission may deem fit and proper; and
E. Direct the OPs not to charge or collect maintenance directly and that the same may be collected on fair, just and reasonable basis from the lawfully formed owner’s association only and payable to the maintenance account; and
F. Direct the Opposite Parties to provide convenient, adequate, safe, independent car parking space and to refund the amount charged towards car parking space along with interest @18% from the date when the payment was made;
G. Direct the Opposite Parties to refund wrongfully charged taxes including GST and VAT and other charges along with interest on that amount at the rate of 12% from the date of receipt of such wrongfully levied charges and taxes;
K. Award costs including legal costs to the Complainants; and
L. Direct the O.P. No. 1 to produce audited and certified accounts of maintenance of the Project; and
M. Direct the O.P. No. 1 to cooperate and assist in formation/functioning of lawful owner’s association and to transfer the rights thereof to it; and
N. Direct the Opposite Parties to refund wrongfully charged farmer’s compensation along with the interest on that amount at the rate of 12% from the date of receipt of such wrongfully levied charges and taxes;
O. By way of decree, the O.P. No. 1 may be ordered to return/refund the sums paid by the Complainants towards the excess areas, consequent stamp duty and registration along with interest @18% p.a., to the Complainants, till realization, from the date of payment by the Complainants till actual recovery.
P. Appoint an independent Architect/Consultant/Court Commissioner to measure and ascertain on an actual basis w.r.t. the prayer(s)/relief(s) as made herein before; and
Q. Direct the O.P. No. 1 to refund interest on Advance Maintenance Charges and MMC excess charges with interest; and
R. Direct the O.P. No. 1 to refund P.L.C. and Green Belt charges amounts with interest; and
S. Direct the O.P. No. 1 to refund charges/fixed meter charges deducted from the meter and all incidental and consequential costs and charges thereto; and
T. Direct the O.P. No. 1 to refund arbitrarily charged interest of delayed payment with GST; and
U. Direct the O.P. No. 1 builder to execute supplemental sub-lease deed by removing unwarranted and one-sided clauses thereof; and
V. Direct the O.P. No. 1 builder to produce original copies of all forms, undertakings and/or all other documents that were signed by the residents under pressure/ duress and copies of which were not provided to the residents/buyers and otherwise; and
W. Pass such other/ further Order(s)/direction(s) as may be deemed fit and proper under the facts and circumstances of the present case.
6. The Opposite Party No. 1 filed its reply and resisted the Application and the Complaint on the following grounds:
a. The Complainants have taken peaceful possession and executed satisfaction letters stating that they had no grievances.
b. There is no commonality of interest and the instant Complaint is not maintainable in a representative capacity.
c. There is a lack of pecuniary jurisdiction.
d. The instant complaint is barred by limitation.
e. The conduct of the Complainants and the demonstrable lack of bona fides.
7. I have heard the Learned Counsels of both the parties and have gone through material available on record.
8. The Learned Counsel for the Complainants has argued that the Opposite Party No. 1 induced the buyers with deceptive promises into entering the Agreement. The Agreement was one sided, unilateral and arbitrary. There is a shortfall and disparity in actual/carpet area vis a vis the super area in violation of permitted loading limit and other rules, regulations and guidelines. The basement parking area has been added which has inflated the super area. Subsequently the inflated super area has caused increased maintenance charges for the residents. The demand for maintenance charges is being raised by Opposite Party No. 1 w.e.f. 01.01.2018 irrespective of the date of transfer of title/possession. The maintenance is not being handed over to the Owner’s Association despite over 30 months being passed since possession was offered. Monthly club charges at the rate of Rs. 1,000/- per month per flat are being demanded despite paying one time charges at the time of booking. GST and taxes are being levied on the monthly maintenance which is not justified on any basis. Extra charges are being recovered from the residents through prepaid meter for electricity and the electricity is being diverted for commercial use in maintaining office and construction of other Towers. The Opposite Party No. 1 has constructed a Marketing Office in the area earmarked as a central lawn in advertisements and brochure. The car parking allotment has not been done correctly and Opposite Party No. 1 has also charged ₹75/- per Sq. Ft. as Preferential Location Charges (PLC) even though every flat is a corner flat. The proportionate share of farmer’s compensation has not been refunded to the residents despite there being decision of the Hon’ble Allahabad High Court. The Complainants have relied on the cases “Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (2016 SCC Online NCDRC 1117); Brigade Enterprises Limited vs. Anil Kumar Virmani And Ors. (2022) 4 SCC 138, Akshay Kumar & Ors. vs. Adani Brahma Synergy Pvt. Ltd. (Consumer Case No.48 of 2021 NCDRC) and Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor (2022) State Commission Online State Commission 416”.
9. The Learned Counsel for the Opposite Party No. 1 has argued that the Complainants have voluntarily executed the sub-lease deed and had taken the possession of their flats without any protest. Each of the Complainants had executed satisfaction letters stating they had no grievances whatsoever in respect of their apartment units. Reference is made to the Order of this Commission in the case of Rasheed Ahmad Usmani v. DLF Ltd. & Ors., IV (2019) CPJ 52 (NC), decided on 02.07.2019. The trigger for filing the instant complaint relates to their liability to pay maintenance charges for the first time in June 2020 for the period starting July 2020, after more than 2.5 years as the maintenance charges were prepaid till then. There is a lack of commonality of interest among the Complainants, there is no similarity of interest in the pleadings which is sine qua non for filing a complaint under Sec. 35(1)(c) of the Act. Many of the complainants had approached different forums such as Uttar Pradesh Real Estate Regulatory Authority (UPRERA) with same grievances. The instant complaint is liable to be dismissed for lack of pecuniary jurisdiction as the dispute being raised by the Complainants arises out of the Maintenance Agreements, which in total comes out to Rs.84,34,234 being paid by the Complainants until the filing of the instant complaint. The computation of valuation of ₹40,60,58,055 is solely based on the purchase consideration of the Flats which cannot be basis as the possession was offered timely 3 years ago and physical possession was also taken over by the Complainants. The value of the Complaint is therefore clearly inflated to bring it into the jurisdiction of this Hon’ble Commission. The instant complaint is barred due to limitation as the Agreements were executed in the year 2013 and possession was timely offered as well. Many of the Complainants have participated in the elections of the association of allottees which they allege to be illegal, and have also approached UPRERA with same allegations. The Complainants are thus guilty of forum shopping and wilful and deliberate concealment of facts in respect of proceedings filed. The Complaint is liable to dismissed on the basis of such material concealment of facts. Some of the Complainants are not allottees but tenants who have no locus to file proceedings falsely representing themselves as title holders. The pleadings in the rejoinder are a complete repetition of averments in the Complaint and Application to file in a representative capacity, thus showing the lack of substance in the allegations.
10. Section 35(1)(C) of the Act reads as under:
“35. (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by—
(a) the consumer,—
(i) xxxxxxxxxxxx
(ii) xxxxxxxxxxx
(b) xxxxxxxxxx;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested; or
(d) xxxxxxxxxxx:
Provided that the complaint under this sub-section may be filed electronically in such manner as may be prescribed.
Explanation.—For the purposes of this sub-section, "recognised consumer association" means any voluntary consumer association registered under any law for the time being in force.”
11. The bare reading of the provision contemplates that there has to be sameness in interest, i.e., commonality of interest where more than one consumer come together and want to file a Complaint. Such Complaint can be filed after seeking permission by way of an Application under Section 35(1)(C) of the Act. The Complainants have relied on the findings in the case of Ambrish Kumar Shukla (supra) wherein this Commission has observed as under:
“15. For the reasons stated hereinabove, the references are answered as under:
Reference dated 24.5.2016
Issue No. (i)
A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.”
12. This Commission in Ambrish Kumar Shukla (supra) confirms that for same interest a joint Complaint can be filed u/s 12(1)(c) of the Act. It has also been observed by this Commission in Ambrish Kumar Shukla’s case (supra) “therefore, sameness of interest has to be decided on the basis of nature of reliefs claimed and pleading that pinpoint the sameness of interest.”
13. In the case of Brigade Enterprises Limited (supra), the Hon’ble Supreme Court while dealing with Section 35(1)(c) of the Consumer Protection Act, 2019 has so stated:
15. Section 35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested. It is needless to point out that the sine qua non for invoking Section 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Interestingly, Section 35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and (ii) “for the benefit of”. Clause (c) of Sub Section (1) of Section 35 reads as under:
“35. (1)(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested.”
16. Therefore, a complaint filed under Section 35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest.
17. Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 applicable to cases where the complainant is a consumer referred to in Section 2(5)(v), which defines a ‘complainant’ to mean one or more consumers, where there are numerous consumers having the same interest.
18. Order I Rule 8, CPC, unlike Section 35(1)(c) operates both ways and contains provisions for a twoway traffic. It not only permits plaintiffs to sue in a representative capacity but also permits people to be sued and to be defended in an action, in a representative capacity. Order I Rule 8 reads as follows:
“8. One person may sue or defend on behalf of all in same interest.—(1) Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under subrule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under subrule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under subrule (1), and no such suit shall be withdrawn under subrule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in subrule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.”
The Apex Court has further held as under:
“21. Since “sameness of interest” is the prerequisite for an application under Order I Rule 8, CPC read with Section 35(1)(c) of the Consumer Protection Act, 2019, it was necessary for the respondents to include in the consumer complaint, sufficient averments that would show sameness of interest. As we have pointed out earlier the total number of residential apartments constructed in three blocks comprising of about 20 wings (7 wings each in Amber and Blue blocks and 6 wings in Crimson block) were 1134. There are no pleadings insofar as the purchasers of 386 residential apartments in the 7 wings of Amber block are concerned. Even in respect of the owners of the remaining 748 residential apartments in blue block and Crimson block, the complaint does not contain any specific averments regarding sameness of interest. The delay in handing over possession of the residential apartments might have given rise to a cause of action for the individual purchasers of flats to sue the builder. But sameness of the cause of action is not equal to sameness of interest. The existence of sameness of interest, has been questioned by the appellant builder on the ground that delay compensation as stipulated in the Agreements was offered to the purchasers and that some of them accepted the same without any demur or protest, while a few others have refused to accept. It is not clear from the consumer complaint as to how (i) those who have accepted the compensation under protest; (ii) those who accepted without protest; and (iii) those who refused to accept the compensation, have the sameness of interest.”
14. The Hon’ble Supreme Court has thus held that the sameness of interest does not mean sameness of cause of action. The Hon’ble Supreme Court also held that the Complainants have to make averments which would show sameness of interest. The test that has to be of the sameness of the interest and their interest in securing redressal of common grievances. It is also apparent that the burden to prove that there is sameness of interest is on the Complainants. The Hon’ble Supreme Court in the case of Brigade Enterprises Limited (supra) has also clearly stated that sufficient averments are needed to be made in the Complaint that would show sameness of interest.
15. The first and foremost argument of the Opposite Party No. 1 is that there is no commonality in the interests and grievances of the Complainants which is sine qua non for any Application under Section 35 (1) (c). From the averments in the Complaint, it is apparent that the Complainants have approached this Forum for different issues. They are aggrieved with electricity theft (being used by Opposite Party No.1 for their office and construction of other towers) fixation of monthly club charges while some are aggrieved with misrepresentation of the date of completion of Project, illegal construction in Central Lawn area and allegations in respect of car parking, one sided clauses in lease deed and lack of club facilities and illegal maintenance charges and improper computation of super built area (which is inflated by adding car parking area) and wrong calculation of electricity charges and not adequately providing car space etc. There are no detailed specifics depicting the deficiency of service or unfair trade practice in the Complaint or in the Application. In this regard, it is pertinent to refer to the observations of the Hon’ble Supreme Court in the case of Vikrant Singh Malik & Ors. v. Supertech Ltd. & Ors., CA No. 3526/2016, decided on 24.08.2020, the relevant paragraph is reproduced herein:
“21. Section 12(1)(c) of the Act applies to a situation where there are numerous consumers “having the same interest”. In that case, a complaint may be filed by one or more consumers with the permission of the District Forum “on behalf of, or for the benefit of, all consumers so interested”. The test under Section 12(1)(c) is of the sameness of the interest. The complaint is filed in a representative capacity, on behalf of or for the benefit of all the consumers who are interested. Similarly, under Section 2(1)(b)(iv), in defining the expression “complainant”, the statute incorporates the identical test of the sameness of interest, where there are numerous consumers. In such a situation, the expression “complainant” has been defined, inter alia, to include one or more consumers, each of whom has the same interest where there are numerous consumers involved in the dispute.”
16. The Opposite Party No.1 has placed on record a document showing table of grievances prepared on the basis of complaints received by them from individual Complainant. This document shows that all the Complainants do not have same grievances or similar grievances. They had different issues. Some are aggrieved with electricity theft, some with excess maintenance charges, others with misrepresentation of date of completion of project. From the perusal of the Complaint and the Application, it is evident that the averments made therein are totally vague. No chart is provided which could specify the contentions of the Complainants, e.g. the contention that the super area calculated for the purpose for registration of flat is excessive, but no basis of such a contention is given. Regarding theft of electricity by Opposite Party No.1 for commercial purposes, no complaint to the concerned authorities is placed on record. It is also not clear if the alleged theft had been done from meters/electrical connections of all the Complainants. No such averment is made. Only a vague contention relating to theft of electricity is made. Similarly the grievance put up towards proper car parking is concerned, it is not specified as to what was promised and what had been provided. The contentions and averments thus are quite vague and do not in any way show sameness of interest.
The Complainants have also alleged theft of electricity by the Opposite Party No.1. It is settled proposition of law that this Commission cannot delve into the issues which are complex and need to be tried in a Civil Suit. Certainly complex questions require proper trial with summoning of witnesses, examination-in-chief, cross examinations etc., the truth of which cannot be ascertained by the summary procedure under the Consumer Protection Act. Reliance is placed on the findings of the Hon’ble Supreme Court in the case of C.M.D., Union City Bank Ltd. & Anr. v. R. Chandramohan, CA No. 7289 of 2009, decided on 27.03.2023, the relevant paragraph is reproduced hereunder:
“12. The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it”
18. From the very nature of the reliefs claimed, i.e., the relief relating to production of audited and certified account of maintenance of the project; the right of the Complainants not to pay the maintenance charges; to appoint an independent Architect to measure and ascertain on actual basis with regard to the prayers and reliefs as made herein, direction to the O.P. No. 1 to return/refund the sums paid by the Complainants towards the excess areas, consequent stamp duty and registration along with interest @18% p.a., to the Complainants, till realization, from the date of payment by the Complainants till actual recovery, cannot be determined by this Commission since these require elaborate evidences and documents and the cross examinations of the witnesses keeping in view the number of Complainants. As also the direction sought about the refund/return of the sums paid by the Complainants towards the excess areas and refund of the stamp duty and registration charges, is an issue which cannot be decided by way of summary procedure and needs elaborate evidences as it involves elaborate questions of law and fact. Moreover, the calculations need to be done individually for each and every Complainant since area of flat, registration charges, stamp duty paid has to be different. There is no averment made regarding area, rates etc. by any of the Complainants. Similarly, the Complainants have also sought the relief which is to direct the Opposite Parties to refund charges/fixed meter charges deducted from the meter and all incidental and consequential costs charges thereto of all the Complainants cannot be done by way of summary trial because calculation of the charges of individual Complainant and the reading taken from the meter need to be done individually and this certainly cannot be done by way of summary procedure. Although, the Complainants have sought the relief for execution of a supplementary sub lease deed by removing unwarranted and one-sided clauses in the lease deed executed by them which has been fully registered, it is not shown as to what were the one-sided clauses in the executed lease deed. It is settled proposition of law that consumer courts have no jurisdiction to delete or add any clauses in a registered sale/lease deed, registered before the Registrar. Another reliefs sought by the Complainants is to direct the Opposite Party No.1 Builder to produce original copies of all forms, undertakings and other documents that were signed by the residents under pressure/duress and copies of which were not provided to the residents, without disclosing the specific documents executed by the Complainants allegedly under duress. It is also not clear whether the reference is of one document which relates to all the Complainants or individual documents executed by individual Complainants. The nature of the document is also not disclosed which was allegedly taken under pressure/duress. The Complainants, it seems, want this Commission to do the fishing job by asking the Opposite Party to produce all the documents signed by the Complainants and then ask the Complainants to individually go through those documents and then point out the documents signed by them under duress. Such relief cannot be said to have commonality or common interest. This Commission certainly is not meant to do that. The Hon’ble Supreme Court in Brigade Enterprises Limited (supra) has held that “the sameness of cause of action is not equal to sameness of interest.” From the averments made by the Complainants, it cannot be discerned that they have sameness of interest.
19. It is a settled proposition of law that where two or more concurrent remedies are available to a party it has a right to choose a remedy suitable to him/her. Once such a choice is made, the party is not permitted to thereafter go for the other available remedy. It has been so held by the Hon’ble Supreme Court in the case of “Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Ors., CA No. 5785 of 2019”, decided on 11.01.2021, the relevant paragraph is reproduced herein:
“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. It is not disputed that some Complainants before this Commission have already exercised their right of remedy before UP RERA for same reliefs. Therefore, once they have exercised their right of election, having failed there in getting the relief, they are precluded from filing the Complaint before this Commission for same cause of action. This renders the instant Complaint untenable as being representative of all the Complainants.
21. On the basis of the documents placed on record, it is apparent that many of the Complainants in this instant Complaint, namely Mr. Lalit Kumar, Mr. Varun Singh Chandel and Mr. Vaibhav Gupta have also filed a Civil Suit in the Court of Civil Judge, Patiala House Court, New Delhi during the pendency of the proceedings before this Commission. The contentions of the Petition and the cause of action before the Civil Court are similar to the ones raised in this instant Complaint. The Complainants have failed to disclose this material fact before this Commission at any stage, which suggests a willful and deliberate attempt at misleading this Commission. It is pertinent to refer to the Order of the Hon’ble High Court of Calcutta in the case of Bhriguram De v. State of W.B., 2018 SCC OnLine Cal 8141, decided on 20.09.2018, the relevant paragraph is reproduced herein:
“15. According to the Law Lexicon, Third Edition (2012), the Latin Maxim “Suppressio veri, suggestio falsi” defines that the suppression of the truth is equivalent to the suggestion of falsehood. The suppression or failure to disclose what one party is bound to disclose to another, may amount to fraud. Where a person is found to be guilty of suppressio veri suggestio falsi for having concealed material information from scrutiny of the Court, he is not entitled for any equitable relief under order 39 of CPC (5 of 1908). [Arbind Kumar Pal v. Hazi Md. Faizullah Khan, AIR 2007 (NOC) 1035 (Pat) : (2006) 1 BLJR 430].
16. The maxim that one who comes to Court must come with “clean hands” is based on conscience and good faith. The maxim is confined to misconduct in regard to, or at all events connected with, the matter in litigation. “Clean hands” means a clean record with respect to the transaction with the defendant, and not with respect to any third person.
17. As authored by Ruma Pal, J. in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar reported in (2004) 7 SCC 166 [Coram: Ruma Pal and P. Venkatarama Reddi, J.J.], suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. The relevant portion is provided below:
“13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material from the consideration of the court, whatever view the court may have taken……..”
22. The Complainants cannot therefore be held entitled to any relief for concealing material facts.
23. From the above discussion, it is apparent that the Complainants have failed to bring on record the material which could show that they have the same interest. Few of the Complainants have already exercised their right of election for their remedies and had approached the UP RERA and have also approached the civil courts for the same causes of action. In view of above discussion, the Application under Section 35 (1) (C) of the Act having no merit is dismissed.
COMPLAINT
Since the Application under Section 35 (1) (C) of the Act has been dismissed, the Complaint is also dismissed along with pending Applications, if any. Parties are left to bear their own costs.
