National Consumer Disputes Redressal
Abhishek Roy & 3 Ors. vs M/S. Unitech Limited on 11 April, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1038 OF 2016 1. ABHISHEK ROY & 3 ORS. OPP. A.N. COLLEGE, POLICE STATION GATE, BORING ROAD, PATNA-800 001. ...........Complainant(s) Versus 1. M/S. UNITECH LIMITED (THROUGH ITS MD) 6, COMMUNITY CENTRE, SAKET, NEW DELHI-110017. ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER
For the Complainant : Mr. Jalaj Agarwal, Advocate For the Opp.Party : Mr. R.K. Pandey, Advocate Dated : 11 Apr 2017 ORDER Instant complaint has been filed jointly by three sets of complainants, namely, Abhishek Roy, (complainant No.1), Amit Kumar (complainant No.2) and Rakesh Kumar and his wife Sushma Himanshu (complainants No.3 & 4). Allegations in the joint complaint are that the aforesaid three sets of complainants booked separate flats with the opposite party in the development project Unitech Horizon to be constructed on plot No.6, Sector PI-2, Alistonia Estate, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh. It is alleged in the complaint that opposite party has committed deficiency in service inasmuch as it has failed to deliver the possession of the subject flats to the complainants within the agreed time line despite of having received almost 95% of the agreed consideration amount. Claiming this to be deficiency in service, the complainants have filed joint complaint seeking following reliefs: -
"It is accordingly prayed that this Hon'ble Commission grant the following relief to the Complainant:
Direct the opposite party to complete the construction and deliver the flats to the complainants within a period of One Month along with a sum of Rs.2,32,86,454/-(Rupee Two Crore Thirty Two Lac Eighty Six Thousand Four Hundred and Fifty Four Only) as interest @ 18 % simple interest for delay in handing over the possession of flat, alongwith Pendent-lite and future interest at the same rate or such higher rate which this Hon'ble Commission may deemed fit in the interest of justice.
Direct the Opposite Party to pay a sum of Rs3,67, 61,190/- (Rupee Three Crore Sixty Seven Lac Sixty One Thousand One Hundred and Ninety Only) out of which Rs.1,34,74,736/- (One Crore Thirty Four Lac Seventy Four and Seven Hundred Thirty Six Only) is towards principal and amount of Rs.2,32,86,454/- (Rupee Two Crore Thirty Two Lac Eighty Six Thousand Four Hundred and Fifty Four Only) towards simple interest at the rate of 18% per annum along with pendent lite and future interest at the same rate or such higher rate which this Hon'ble Commission may deemed fit in the interest of justice, Direct the OP to get Final installment becomes payable only after interest and damages for mental agony and harassment amount as deemed proper is fixed by the Hon'ble commission.
Direct the Opposite Party to pay a sum of Rs.10,00,000/- (Rupees Ten Lac Only) each to the Complainants as compensation for harassment, inconvenience and mental agony caused by the Opposite Party.
That a sum of Rs.50,000/- (Rupees Fifty Thousand Only) each be allowed as litigation costs. Any other relief's that this Hon'ble Commission deems fit and proper in favour of the Complainant in the circumstances of the case."
2. Alongwith the complaint, an application under Section 12 (1) (c) of the Consumer Protection Act, 1986 has been moved seeking permission to pursue the joint complaint. On 14.7.2016 the matter came up for admission before the predecessor Bench presided over by Hon'ble Mr. Justice J.M. Malik. The Bench recorded the following proceedings: -
"Counsel for the Complainants present. All the 4 complainants have signed the complaint. Their affidavits have been filed. The case is admissible U/s 12(1) (c) of the C.P. Act. I.A. No. 5941 of 2016 stands disposed of.
Case stands admitted.
Notice be issued to the Opposite Party returnable on 03.01.2017, with the direction to file the written statement within 30 days from the receipt of the notice. Time is extendable by 15 days with application of extension, which must be moved within first 30 days, under Section 13 of the C.P. Act, otherwise this Commission will be constrained to forfeit the right to file the written statement."
3. When the matter came up before this Bench on 3.1.2017 it was noticed that the aforesaid order was a non-speaking order without any reference to the provisions of Section 12 (1) (c) of the Act and instead of granting a specific permission to proceed with the joint complaint it was recorded that the case is admissible under Section 12 (1) (c) of the Act. As the aforesaid order was not in conformity with the judgment of the Larger Bench of this Commission, it was decided to rehear the complainant with regard to the permission under Section 12 (1) (c) of the Ac.
4. We have heard Shri Jalaj Agarwal, Advocate for the complainant as well as Shri R.K. Pandey, Advocate for the opposite party.
5. Undisputedly instant complaint has been filed jointly by more than one complainants who had booked flats in the development project undertaken by the opposite party. Therefore, Section 12 (1) (c) of the Act comes into play. Section 12 (1) (c) of the Act provides that a complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any services provided or agreed to be provided can be filed by one or more consumers where there are numerous consumers having the same interest with the permission of the Consumer Fora on behalf of or for the benefit of all the consumers so interested in the subject matter of the complaint. Admittedly, in the instant case the complainants had booked individual flats in a large project undertaken by the opposite party which has not been completed. Therefore, obviously there are numerous other consumers who may be having same interest in the subject matter of this complaint. The complainants have not asked for any relief in respect of other consumers who may be having the same interest.
6. As there were conflicting views in the Commission regarding the interpretation of Section 12 (1) (c) of the Act, the matter was referred by the Hon'ble President to a Larger Bench in Consumer Case No.97/2016 titled Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd. to answer the issue regarding interpretation and scope of Section 12 (1) (c) of the Act. The Larger Bench in its order dated 7.10.2017 in the above referred consumer case has observed as under: -
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term 'persons so interested' and 'persons having the same interest' used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words "all consumers so interested' and "on behalf of or for the benefit of all consumers so interested", in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider."
7. On reading of the above observations of Larger Bench it is clear that where there are numerous consumers having common interest, one or more consumers can be permitted to maintain a joint complaint provided there is a communality of interest amongst the complainants and numerous other consumers and the complaint has been filed for the benefit of all such consumers including the consumers who are not party to the complaint but having same interest.
8. As the complainants have sought reliefs for themselves and not on behalf of other consumers who have booked the flats in the subject development project, this matter cannot be termed as "class action" as envisaged under Section 12 (1) (c) of the Act. Thus, this is not a fit case for grant of permission under Section 12 (1) (c) of the Act. Permission is accordingly declined as three different complainants have filed the joint complaint in respect of their respective agreements. This is a clear case of misjoinder of parties and causes of action. Accordingly complainant is dismissed.
9. It is, however, clarified that this order will not come in the way of the complainants to avail of the remedy legally available to them by approaching appropriate forum in appropriate form on the same cause of action.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER