National Consumer Disputes Redressal
Jaipuria Sunrise Greens Residents ... vs Jaipuria Infrastructure Developers ... on 30 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 38 OF 2007 1. JAIPURIA SUNRISE GREENS RESIDENTS WELFARE ASSOCIATION FLAT NO 301 BLOCK 1,
19 RAJPUR ROAD,
CIVIL LINES, DELHI-110054 ...........Complainant(s) Versus 1. JAIPURIA INFRASTRUCTURE DEVELOPERS PVT. LTD. 8-C HANSALAYA,
15 BARAKHAMBA ROAD NEW DELHI-110001 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER
For the Complainant : Mr. Ankur Sood, Advocate
Mr. Gaurav Ray, Advocate For the Opp.Party : Mr. Ravi Kumar Aggarwal, Advocate
Mr. Anish Verma, Advocate with
Ms. Nishtha Sharma, AR
Dated : 30 Mar 2016 ORDER
HON'BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
1.This complaint allegedly on behalf of 28 allottees of flats in a project namely 'Jaipuria Sunrise Greens' was filed by Jaipuria Sunrise Greens Residents Welfare Association. In annexure-A to the complaint, the names and particulars of as many as 28 allottees were given. The complaint was resisted on several grounds including nine preliminary objections. One plea taken in the reply was that each complainant had got a distinct and separate allotment letter mentioning the area that is allotted, which varies in all cases and they were distinct and separate with no identity of the cause of action. Another preliminary objection taken by the opposite party is that since the value of none of the flats was Rs. 1 crore or more, the complaint before this Commission is not maintainable.
2. When this complaint was taken up on 14.07.2015, Mr. Vineet Bhagat, counsel for the complainant sought adjournment on the ground that he would be filing an application under Section 12(1)(c) of the Consumer Protection Act read with Order I Order 8 of CPC. He was permitted to file the said application within a week. IA/4747/2015 was accordingly filed by the complainants. On 04.09.2015, the learned counsel for the complainants stated that only 13 allottees wanted to continue with this complaint and therefore, he would be filing an amended memo of parties. When the matter came up for hearing on 28.09.2015, it was agreed between the parties that this complaint may be treated as a complaint by 13 persons whose names and particulars had been given in the memo of parties dated 04.09.2015. It was also agreed between the parties that the opposite party shall not raise any objection with respect to the aforesaid 13 persons joining together in the complaint. This was a consent order, passed on the concession given by the opposite party. In view of the aforesaid agreement between the parties, the application which the complainant had filed under Section 12(1)(c) of the Consumer Protection Act read with Order I Order 8 of CPC was dismissed as not pressed and 13 persons mentioned in the memo of parties dated 04.09.2015 were substituted as the complainants. They were directed to file an amended complaint restricted only to their individual complaints as on the date of filing of the original complaint. The said amended complaint was to be filed within two weeks. When the matter came up for hearing on 18.11.2015, the counsel appearing for the complainants one of whom incidentally was the same counsel who had appeared on 28.09.2015, stated on instructions that they would not like to file an amended complaint in terms of the order dated 28.09.2015. We therefore, posted the matter for hearing on the maintainability of the complaint. After hearing the learned counsel for the parties, we felt that one more opportunity should be given to the complainants to file an amended complaint in terms of the consent order dated 28.09.2015. Therefore, vide our order dated 01.03.2016, we gave one more opportunity to them to file an amended complaint in terms of the said consent order dated 28.09.2015 making it clear that on their failing to do so, we may be constrained to dismiss the complaint for want of prosecution.
3. Today initially, the learned counsel for the complainants expressed willingness to file an amended complaint with the modification that instead of 13, 14 allottees were found to be impleaded as complainant and he sought time for this purpose, but later, on instructions from Mr. Yogesh Balaine, one of the complainants, he states that the complainants do not want to file an amended complaint in terms of the consent order dated 28.09.2015 and the complaint, as it is, may be decided on its merits.
4. In our opinion, considering the consent order dated 28.09.2015, the complainants were required to file an amended complaint restricting its scope to the individual grievances of the 13 complainants as on the date of filing of the original complaint and in the event of their unwillingness or failure to do so, the complaint is liable to be dismissed for non-prosecution. However, considering the contention of the learned counsel for the complainant that even in case of unwillingness of the complainants to file an amended complaint in terms of the consent order dated 28.09.2015, the maintainability of the complaint has to be decided on its merits, we have proceeded to decide the complaint on its merits, as far as its maintainability is concerned.
5. Section 12(1) of the Consumer Protection Act reads as under:
12. 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 Forum by--
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.
It would thus be seen that a consumer complaint can be filed by a consumer or by a recognized consumer association or where there are numerous consumers having the same interest, in that case, on behalf of or for the benefit of all consumers having the same interest, with the permission of the District Forum. The complaint can also be filed by the Central Government or the State Government as the case may be.
6. This is not a complaint filed by an individual consumer and therefore, cannot be said to have been filed under Section 12(1)(a) of the Consumer Protection Act. Admittedly, Jaipuria Sunrise Greens Residents Welfare Association is not registered under the provisions of any law for the time being in force. Therefore, it is not a recognized consumer association as defined in the explanation below Section 12 of the Consumer Protection Act. Therefore, it cannot be said to be a complaint under Section 12(1)(b) of the Consumer Protection Act. The application under Section 12(1)(c) of the Consumer Protection Act having already been withdrawn, the present complaint cannot even be said to be a complaint under Section 12(1)(c) of the Consumer Protection Act. Even otherwise, a complaint envisaged under clause (c) of Section 12(1) of the Consumer Protection Act is in the nature of a class action, initiated by one or more consumers, on behalf of or for the benefit of all the persons having the same interest in the subject matter of the complaint. The present complaint is not a complaint for the benefit of all such allottees in the project namely 'Jaipuria Sunrise Greens', who have the same grievance, against the opposite party, as those who filed this complaint have. In fact, it is no more even a complaint on behalf of 28 persons who had initially approached this Commission and who claimed to have same grievances against the opposite party. The Scheme of Section 12(1) does not envisage two or more consumers joining together and filing a joint complaint, unless such a complaint is brought within the scope of Clause (c) of the said Sub-Section. In other words, Clause (c) of Section 12(1) is the only provision for filing a joint complaint by more than one consumers. Therefore, it is necessary, for two or more consumers joining together, to meet the requirement of Clause (c). Otherwise, either they can file individual complaints under Clause (a) or they can approach through a voluntary consumer organization under Clause (b).
If a complaint under Clause (c) is filed, a notice has to be given to all the persons having same interest in the matter, as provided in Section 13(6) of the Act read with Order I Rule 8 of CPC. If the particulars of all such persons are not available and therefore, individual notices cannot be given to them, a public notice in this regard is required to be given.
Therefore, the present cannot be treated as a complaint under Section 12(1)(c) of the Consumer Protection Act. In the Scheme of the Act, there is no escape from the conclusion that the provisions of Section 12(1) of the Consumer Protection Act do not permit filing of this joint complaint. In any case, as noted earlier, the application seeking permission envisaged under Section 12(1)(c) of the Consumer Protection Act has already been withdrawn and in the absence of such an applicaction, there is no occasion to consider this complaint under Section 12(1)(c) of the said Act.
7. The learned counsel for the complainant submits that no permission for filing a joint complaint under Section 12(1)(c) of the Consumer Protection Act is required as observed by this Commission in Anil Textorium Vs. Rajiv Niranjanbhai Mehta 1997 (III) CPJ 31 (NC). In our opinion, considering the mandate of law as incorporated in Section 12(1)(c), the aforesaid observations cannot relieve the complainants of their obligation to apply for and obtain the permission envisaged under the said statutory provision. Any observation made in ignorance of the statutory provision would be per incuriam.
8. For the reasons stated hereinabove, we have no option but to dismiss the complaint as not maintainable in its present form. The complaint is dismissed accordingly. We however, make it clear that the dismissal of the complaint shall not come in the way of the complainant filing either individual complaints or approaching this Commission through a voluntary consumer organization or even filing an appropriate complaint meeting the requirement of Section 12(1)(c) of the Consumer Protection Act, for the redressal of grievances against the opposite party. Considering all the facts and circumstances of the case, there shall be no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER