Simultaneous Legal Proceedings In Consumer Forum And RERA Not Sustainable: West Bengal Real Estate Appellate Tribunal

Brief facts:

M/s M.S Enterprise is a partnership firm ('promoter') carrying on the business of development and construction works. Parbind Pandit and Mita Roy are partners of the firm. The firm approached two persons namely, Debdutta Chatterjee and Siddharta Chatterjee ('complainants') and their mother to develop their land admeasuring 1 cottah 1 chittack 27 sq. ft. A development agreement dated 14.10.2015 was entered into between the complainants and the promoter. A sanction was obtained by the promoter from Panihati municipality to raise the construction of a building on the land. On 15.02.2017, a development power of attorney and supplementary development agreement was also executed.

On death of a partner, the firm was reconstituted pursuant to which a supplementary development agreement and a power of attorney in favor of the promoter dated 16.09.2020 was executed between the promoter and the complainants. The possession was to be delivered within 24 months from 16.09.2020. As per the complainant, the promoter failed to hand over possession in time.

Proceedings were initiated under Section 144 CrPC but no relief was granted. Hence, the complainants approached the district commission by filing a complaint praying for appropriate reliefs. The case remains pending in the consumer forum.

A complaint was also filed before the West Bengal Real Estate Regulatory Authority. The Regulatory Authority directed the firm to deliver the 3 flats to the complainant as per the development agreement and rejected the application for maintainability filed by one of the partners of the firm, Mita Roy. Hence, an appeal was filed against the rejection order by Mita Roy ('Appellant').

Submissions of the Appellant:

As per the appellant, the complaint is not maintainable since the same reliefs have already been sought before the district commission. It was further contended that in column 7 of the complaint before the Regulatory Authority, the complainants have made a declaration that no case in respect of the same cause of action is pending in any Court / Authority.

Submissions of the complainants:

It was submitted that due to bona fide mistake and inadvertence, column 7 has been spelt as no case is pending. It was further submitted that the appeal is not maintainable since the appellant has failed to deposit the amount in respect of three flats which the authority directed to deliver it. It was argued that there is no provision in RERA Act prohibiting any allottee to bring simultaneous proceedings seeking the same reliefs.

Observations:

The bench observed that though the proviso to Section 43(5) of RERA Act, 2016 provides for deposit of penalty as a mandatory condition for filing an appeal, but no penalty has been imposed by the Regulatory Authority. Hence, the contention of the complainant that the complaint is not maintainable without the deposit was rejected.

It was further observed that non-declaration of pending cases in column 7 was inadvertent and would not impact the complaint brought before the Authority.

The bench then compared the remedies sought for in the consumer complaint and in the complaint before the Regulatory Authority and held that the remedies in both the proceedings are substantially the same. The bench placed reliance on the decision of the Supreme Court in Imperia Strictures Ltd. vs Anil Patni and IREO Grace Realtech vs Abhishek Khanna and held that the complainants shall have to elect either the complaint before the Consumer Forum or before the Regulatory Authority.

The bench further placed reliance on Section 71 of the RERA Act which inter-alia provides that a complainant may withdraw a proceeding before the consumer forum and file the same before the adjudicating officer under the RERA Act. Hence, it was held that the complainants are not legally allowed to continue both the proceedings.

Hence, the order of the West Bengal RERA rejecting the application for maintainability was set aside and the appeal was allowed.

Case Title: Mrs. Mita Roy vs Debdutta Chatterjee

Case Number: WBREAT Appeal No. 003/2025

Date of Decision: 23.05.2025

Click Here To Read/Download The Order