National Consumer Disputes Redressal
Anjum Hussain & 43 Ors. vs Intellicity Business Park Pvt. Limited ... on 10 October, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2241 OF 2018 1. ANJUM HUSSAIN & 43 ORS. ...........Complainant(s) Versus 1. INTELLICITY BUSINESS PARK PVT. LIMITED & ANR. ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Yash Srivastava, Advocate For the Opp.Party : INTELLICITY BUSINESS PARK PVT. LIMITED & ANR.
Dated : 10 Oct 2018 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
This complaint has been instituted for the benefit of entire class of buyers, who have booked shops / offices in a project namely "Intellicity" consisting of residential units, shops and offices at Greater Noida. The scope of this complaint is not restricted only to the complainants. An application seeking permission in terms of Section 12(1)(c) of the Consumer Protection Act, to institute this complaint on behalf of all such buyers of commercial units, being IA/18734/2018, has also been filed, along with the complaint. It is alleged that the complainants are consumers as they had booked small shops / offices for the purpose of earning their livelihood by means of self-employment.
2. As provided in Section 2(1)(d) of the Consumer Protection Act, the term 'consumer' excludes from its ambit, a person hiring or availing services for a commercial purpose, unless he can bring his case within the four-corners of the explanation below Section 2(1)(d) of the Consumer Protection Act. A person hiring or availing services for the purpose of earning his livelihood by way of self-employment has thereby been included in the definition of 'consumer'. Otherwise, a shop / commercial unit is deemed to be booked for a commercial purpose.
3. Since the scope of this complaint is not restricted only to the complainants and encompasses all the allottees of the shops / commercial units, as is specifically stated in the complaint and is also evident from the prayers made in the complaint, seeking direction to the opposite party to refund the amount deposited by each complainant as well as other allottees along with interest and compensation, it would be maintainable as a class action only if it is alleged and shown that all the allottees of the shops / commercial units in the above referred project had booked the same solely for the purpose of the earning their livelihood by way of self-employment, meaning thereby that all the allottees intend to work themselves in these shops / commercial units and the occupation of the said units by them has to be for the purpose of earning their livelihood. A careful perusal of the complaint would show that it is not even alleged that all the allottees of the commercial units / shops in the above referred project had booked the said shops / units solely for the purpose of the earning their livelihood by way of self-employment. In the absence of such an averment in the complaint, no evidence can even be led to prove that not only the complainants but all the allottees of the shops / commercial units had booked the same solely for the purpose of the earning their livelihood by way of self-employment. Even otherwise, the complainants cannot know the purpose for which the allottees, other than the complainants, had booked the shops / commercial units in the aforesaid project. The said purpose can be in the knowledge only of the concerned allottees. Therefore, this class action under Section 12(1)(c) of the Consumer Protection Act on behalf of not only the complainants but all the allottees of the shops / commercial units in the aforesaid project is not maintainable.
4. In fact, the complainants have not even filed their own affidavits to state on Oath that they had booked shops / commercial units with the opposite party for the purpose of earning their livelihood by way of self-employment. Only a bald general averment to this effect has been made in the complaint, without any details or particulars. More importantly, the affidavits annexed to the complaint have been sworn only by one person namely complainant No.1 Mrs. Anjum Hussain. Though, power of attorneys purport to have been executed by other complainants in favour of Mrs. Anjum Hussain, they ought to have filed their individual affidavits, stating therein that they had booked shops / commercial units in the aforesaid project, for the purpose of earning their livelihood by way of self-employment. Mrs. Anjum Hussain, despite being attorney of the other complainants, can have no personal knowledge as regards the purpose for which the shops / commercial units were booked by the other complainants, in this project. Despite being their attorney, she cannot depose on the facts, which are not in her personal knowledge, but are in the personal knowledge of the other complainants.
5. In Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors., AIR 2005 SC 439, the Hon'ble Supreme Court inter-alia observed that the Power of Attorney holder did not have personal knowledge of the matter of the appellants and therefore he could neither depose on his personal knowledge nor could he be cross-examined on those facts which were in the personal knowledge of the principal. The following was the view taken by the Hon'ble Supreme Court with respect to the legal position in this regard:
"13. In our view the word 'acts' employed in Order 3 Rule 1 and 2 CPC confines only to in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
17. On the question of power of attorney, the High Courts have divergent views. In Shambhu Dutt Shastri V. State of Rajasthan, it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."
In A.C. Narayanan Vs. State of Maharashtra & Anr. (2014) 11 SCC 790, the Hon'ble Supreme Court inter-alia held that though it is permissible for the power of attorney holder to file a complaint and / or continue with a pending criminal complaint, it is expected that he should have knowledge about the transaction so as to be able to bring on record the truth of the grievance / offence. It was further held that an explicit assertion as to the knowledge of the attorney about the transaction in question must be specified in the complaint.
In S. Kesari Hanuman Goud Vs. Anjum Jehan & Ors. (2013) 12 SCC 64, the Hon'ble Supreme Court observed that it is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. It was further held that he cannot depose for the principal for acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of a matter as regards which only the principal can have personal knowledge.
In Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha (2010) 10 SCC 512, the Hon'ble Supreme Court inter-alia summarized the position as under:
"(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge."
6. For the reasons stated hereinabove, the application seeking permission to institute this complaint on behalf of not only the complainants but all the allottees of the shops / commercial units in the above referred project is dismissed. The accompanying complaint consequently stands rejected. It is however, made clear that the dismissal of the complaint shall not come in the way of the complainants and other allottees instituting either individual complaints under Section 12(1)(a) of the Consumer Protection Act or complaint through a Voluntary Consumer Association under Section 12(1)(b) of the Consumer Protection Action. The dismissal of the complaint shall also not come in the way of the complainants availing such other remedy as may be open to them in law.
......................J V.K. JAIN PRESIDING MEMBER