State Consumer Disputes Redressal Commission
Mr. Dinesh Govind Pawar vs Mr. Dinesh Shantaram Jaitapkar on 14 December, 2018
CC/15/735 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/15/735
1. Mr.Dinesh Govind Pawar,
R/o A/404, Nutan Ushakiran CHSL,
Manwelpada, Virar (E),
District - Palghar - 401 305.
2. Mrs.Amita Dinesh Pawar,
R/o A/404, Nutan Ushakiran CHSL,
Manwelpada, Virar (E),
District - Palghar - 401 305.
3. Mrs.Priyanka Santosh Pawar,
R/o C/302, Nutan Ushakiran CHSL,
Manwelpada, Virar (E),
District - Palghar - 401 305.
Through Power of Attorney
Mr.Santosh Govind Pawar,
R/o C/302, Nutan Ushakiran CHSL,
Manwelpada, Virar (E),
District - Palghar - 401 305. .....Complainants.
Versus
1. Mr.Dinesh Shantaram Jaitapkar
Prop.Siddhant Travels, R/o B 202,
Dipti Safayar Soc. Rd. No.2,
Behind Suraj Bagh, Natwar Nagar No.2,
Jogeshwari (E), Mumbai - 400 060.
2. Mrs.Nilim Alias Nilima Dinesh Jaitapkar,
R/o Anand CHSL, 4/401, A Wing,
Natwar Nagar No.5, Behind Sachin
Vayam Shala, Jogeshwari (E),
Mumbai - 400 060.
3. Mr.Mahesh Shantaram Jaitapkar
R/o Gujavane, A/p Unale,
Taluka Rajapur, Dist. Ratnagiri.
4. Mr.S.S. Alias Sanjit Alis Raju Sambhaji
Mohite
R/o D1, Bhagyalaxmi CHSL, Ramnagar,
Bhandarkarwadi, Jogeshwari (E),
Mumbai - 400 060.
CC/15/735 2
5. Ms.Rohini Shridhar Phate,
R/o Bhagirathi Chawal, Room No.3,
Phulpada, Virar (E), Thane.
6. Ms.Yojana Sambhaji Mohite,
R/o 202, Dipti Safayar CHSL, Rd.No.2,
Behind Suraj Bagh, Natwar Nagar Soc.,
Rd. No.2, Jogeshwari (E), Mumbai - 60.
7. Mr. Sudhir Bhogoji Bhaud,
R/o Gavdevi Donger, Near Navrang
Cinema, Andheri (W), Mumbai.
8. Umesh Tukaram Turalkar,
Gajraj Hous.Soc., 1003 B Wing,
10th Floor, Hari Mandir Road,
Govt. Colony Maharashtra Nagar,
Bandra (E), Mumbai - 56.
9. Mr. Kumar Alis Kishor Krishna Tevar,
R/o 02/Mirabai Sankul, Nana Nani Park,
Manvel Pada, Virar (E), Dist. Thane.
10. Mr.Santosh Vithoba Satose
R/o Sainath Nagar, Near Woodland
Hotel, Rajapur, Ratnagiri.
11. Mr.Sunil Vithoba Satose,
R/o 1175, Sainath Nagar,
Rajapur, Ratnagiri.
12. Youvaraj Vasant Patole,
R/o Sumangal Apt. B 03/08
Room No.1, 2nd Floor, Sector No.03,
Vashi, Navi Mumbai - 400 702.
13. Siddhant Travels,
Shop No.4, Harikrupa Bldg., Natwar
Nagar Road No.1, Jogeshwari (E),
Mumbai - 400 060. ......Opponent Nos.1 to 13.
BEFORE: Usha S. Thakare, Presiding Judicial Member
A.K. Zade, Member
PRESENT: Advocate Mr. U.G. Badadare for Complainants.
None present for Opponents.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) Complainants have filed this complaint alleging deficiency in service CC/15/735 3 against Opponents and praying for directions to Opponent Nos.1 to 13 to refund, pay and compensate to Complainants for the claim of Rs.48,42,425/- against payments made, amounts invested, punitive and consequential reparations, expenses, reimbursement, damages, compensation, costs, loss of income, physical suffering and torture, mental agony, etc. as elaborated in claim statement. The Complainants have also prayed for composite hearing so as to avoid any procedural objections and to meet the justice at the earliest.
2) As per Complainants, facts of the case are as follows -
The instant consumer complaint is filed by one Mr.Santosh Govind Pawar as Power of Attorney on behalf of the three Complainants namely Mr.Dinesh Govind Pawar, Mrs.Amita Dinesh Pawar and Mrs.Priyanka Santosh Pawar, who were investors of M/s.Siddhant Travels-Opponent No.13 and other associated organizations, having paid Rs.8,95,000/- to M/s.Siddhant Travels for the scheme "Owning car and Rent" it to Siddhant Travels. Complainant No.1 i.e. Mr.Dinesh Goving Pawar had paid total Rs.2,65,000/-through two cheques both dated 30/01/2010, Complainant No.2 i.e. Mrs.Amita Dinesh Pawar had paid total amount of Rs.3,15,000/- through two cheques both dtd.25/11/2011 and Complainant No.3 Mrs.Priyanka Santosh Pawar had paid Rs.3,15,000/- by cheque dtd.29/11/2011 to M/s.Siddhant Travels i.e. Opponent No.13 having Mr.Dinesh Shantaram Jaitapkar i.e. Opponent No.1 as proprietor, under the scheme of investment of car ownership and rental i.e. to purchase cars and rent it to M/s.Siddhant Travels. Opponent No.1 was carrying on business of vehicle hiring, rental cars, sale and purchase of vehicles, in the name of Siddhant Travels alongwith other businesses like property dealings, hotel and liquor bar, recreation hall, financial services, etc. and such other business in various other names alongwith other Opponents/family members and others. Opponent Nos.2 to 13 were close relatives and/or associates. Opponent No.2 is wife of Opponent No.1, who was projected as and CC/15/735 4 working as Director, partner and active member of Siddhant Travels and several other group organizations (approximately 28+ Nos). Other Opponents working individually and jointly were projected as Director, partner, managers, active managerial personnel and active members etc. of the group working individually and jointly as group of several other fictitious organizations, targeted to dupe people.
3) Complainants further submitted that Opponent No.1 alongwith Opponent Nos.2 to 5 were known to Complainants who, on several occasions since 2010, represented in person to Complainants proposing a scheme of investment to own car and rent it and also assured/promised Complainants/Investors that they will earn net profit of Rs.14,000/- per month per vehicle excluding the operational and all other expenses, against investment of Rs.2,65,000/- or Rs.3,15,000/- for one vehicle and that after 5 years of renting, the said vehicle will be returned to the investors. Complainants thereupon paid the total amount of Rs.8,95,000/- as described above to purchase vehicles in their names. A notarized agreement to that effect was executed with one of the Complainants i.e. Complainant No.1, but was delayed and denied subsequently in respect of others. Thereafter, Opponent No.1 started paying rental charges/returns to the Complainants @ Rs.14,000/- per month but paid only for first few months and stopped paying subsequently under the pretext of financial crunch, bank problems, recession, accident with some other vehicles owned by them, family problems, etc. Thereafter, on several occasions, Opponents assured and promised to pay to Complainants all dues, arrears and regular monthly payments but did not pay the same in spite of persuasion and follow-up by Complainants. By the end of year 2012/ beginning of year 2013, when Complainants visited office of Opponent No.13, they learnt that the office was closed and all Opponents were hiding and went underground because of duping several people by them. Thereafter, when Complainants tried to reach Opponents, they could not do so, except on couple of occasions, when CC/15/735 5 they were told that will be paid entire amount shortly. Complainants came to know that the said Opponents had accumulated many properties by duping several people, committing fraud and sabotage and the scandal ran into several thousand people (2187 persons), worth several crores of rupees i.e. Rs.54 Crores and several complaints were lodged against them with EOW, Mumbai, by those investors, which included Complainants also.
4) Complainants further submitted that no vehicles were purchased by Opponents in the name of Complainants and the amounts paid by Complainants for purchase of vehicles in Complainants' names were not utilized for the same by Opponents but they purchased vehicles in the name of M/s.Siddhant Travels and others. As per Complainants, Opponent Nos.1 to 5 joining hands with each other utilized the money procured from Complainants and such other investors for their own business and accumulated various properties and business in their own names or names of relatives and others as benami properties. Opponent Nos.1 to 5 had given false promises and bank cheques to kill time and to avoid payments and litigations knowing fully well that there were no funds in said bank accounts and the said cheques would get dishonoured. Thereafter, Opponent No.1 alongwith other Opponents promised to enter into fresh agreements and to issue new cheques/payment receipts against old agreements, cheques for monthly rental amounts and payment receipts, promising to refund entire amounts but did not issue any new cheque nor entered into any new agreement and did not give any new receipt against cheques, agreements, receipts, etc. so collected back. Complainants further submitted that Opponent No.1 was not traceable for long and was nabbed on 28/07/2014 from Mumbai. Similarly Opponent Nos.3 and 4 also absconded for long and were nabbed on 06/03/2015. All other Opponents were not traceable and went underground. Complainants therefore, filed the instant consumer complaint praying for refund of the aforesaid total amount of Rs.8,95,000/- alongwith interest @ 18% p.a. and for damages, loss of income and physical CC/15/735 6 and mental suffering and cost of litigations amounting to Rs.15,26,975/- in respect of Complainant No.1, an amount of Rs.16,57,725/- in respect of Complainant No.2 and an amount of Rs.16,57,725/- in respect of Complainant No.3. total amounting to Rs.48,42,425/-. Complainants also submitted documents in the form of Court orders in respect of the abovesaid criminal group of persons involved in crimes, copies of bounced cheques and zest of charge sheet of Economic Offence Wing, Mumbai.
5) Advocate for Opponent No.1 appeared on 07/06/2016 requesting for time to file written version. Other Opponents failed to appear although served. As Opponent No.1 failed to file written statement within 45 days, it was not taken on record and the consumer complaint was proceeded without written statement of Opponent No.1 and ex-parte against rest of Opponents. Complainants filed affidavits of evidence and brief notes of arguments. Arguments on behalf of Complainants were heard and the matter was reserved for orders as nobody was present for Opponents to argue on point of law.
6) Perused record. Heard arguments on behalf of Complainants.
7) From the record we observe that there are three independent investors/ Complainants in the instance case i.e. Complainant Nos.1, 2 and 3 who have independently made payments by different cheques, on different dates and for different amounts, towards part payments in respect of three independent vehicles and for which three independent receipts have been issued on letter head of Opponent No.13. However, a single consumer complaint is filed by the above three Complainants jointly, showing the total investment of all there Complainants as Rs.8,95,000/-. Even reliefs claimed by the three Complainants are shown separately i.e.Rs.15,26,975/-, Rs.16,57,725/- and Rs.16,57,725/- for Complainant Nos.1, 2 and 3 respectively showing the total amount of relief as Rs.48,42,425/-, obviously to bring the instant complaint within pecuniary jurisdiction of this CC/15/735 7 Commission. Thus, in the instant case, the causes of action and also the Complainants are different in the three different instances of booking of three different vehicles by different cheques issued on different dates in respect of three different Complainants. But they have filed a single complaint joining the three complaints which are practically separate/ different from each other. The same cannot be allowed and cannot be considered as a single complaint, as per provisions of the Consumer Protection Act. In this respect, we are guided by the order of Hon'ble National Commission in Consumer Complaint No.1441 of 2016 decided on 22/09/2016. In the said order, the Hon'ble National Commission observed in para 2 that:
".......Admittedly, five separate bookings were made by the Complainants, three by Complainant No.1 and two by Complainant No.2 for five different flats. Admittedly, the parties entered into five separate Buyer's Agreements, three out of which were executed between Complainant No.1 on one hand and Opponent Nos.1 & 3 on the other hand, whereas the remaining two bookings were executed between Complainant No.2 on one hand and Opponent Nos.1 & 3 on the other hand. Therefore, five separate causes of action accrued to the Complainants on account of the failure of Opponent Nos.1 and 3 to deliver possession of the flats booked by them. The Consumer Protection Act does not envisage or permit clubbing of the causes of action in individual complaints. This is more so when the clubbing of the causes of action would result in the change of the Consumer Forum having the requisite pecuniary jurisdiction. If the Complainants file five separate complaints, one in respect of each booking, the complaint will have to be filed before the concerned State Commission. The Complainants cannot be allowed to bypass the State Commission by clubbing five distinct CC/15/735 8 causes of action available to them in respect of five separate bookings and five distinct Buyer's Agreements. It is only in a complaint filed under Section 12(1)(c) of the Consumer Protection Ac and possibly under Section 12(1)(b) of the said Act that more than one causes of action can be clubbed together in one complaint. However, an individual is not permitted to club the causes of action available to him and approach this Commission by aggregating the pecuniary value of the services hired or availed by him in respect of such five distinct causes of action."
The Hon'ble National Commission therefore, held "A composite complaint in respect of five separate bookings made by the Complainants, out of which three were made by Complainant No.1 and two by Complainant No.2 is not maintainable". The Hon'ble National Commission therefore, dismissed the complaint making it clear that the said "Dismissal of the complaint will not come in the way of the Complainants filing separate individual complaints in respect of each of the five bookings which are the subject matter of this complaint."
The facts in the instant case are also similar and the three individual complaints which would have fallen within the pecuniary jurisdiction of District Forum are combined together and filed as a composite complaint to lie under jurisdiction of this Commission by-passing the jurisdiction of District Forum and the same cannot be allowed.
8) During arguments, advocate for Complainants cited judgment of Hon'ble Supreme Court in Civil Appeal Nos.4432-4450 of 2012 between M/s. Narne Construction Pvt. Ltd. V/s. Union of India & Others, etc. and another judgement of Hon'ble National Commission in Consumer Case No.85 of 2007 between Mrs.Adelkar Pratibha B & others V/s. Shivaji Estate livestock & Farms Pvt. Ltd. and Others on the point of considering 'investor CC/15/735 9 as consumer' and other points. However, as we are not deciding this case on merits at this stage, these citations are not considered by us and the same may be considered by the appropriate Forum while deciding the case on merits if cited and argued before that Forum.
9) In view of the above discussion and for the reasons stated above, we hold that the instant composite complaint in respect of three separate cause of action is not maintainable especially when they will not lie under the pecuniary jurisdiction of this Commission, if filed separately by each individual Complainant and in respect of each individual cause of action. The instant consumer complaint therefore, needs to be dismissed with liberty to Complainants to file separate consumer complaints in respect of each separate cause of action and in respect of each separate Complainant before the appropriate Forum. We make it clear that we have not given any finding on merits of the case and all points involved are open for deciding afresh on merits of each case. Hence, we pass the following order -
ORDER
(i) The Consumer Complaint No.CC/15/735 is dismissed with liberty to Complainants to file separate complaints in relation to respective causes of action and respective Complainants.
(ii) No order as to costs.
(iii) Copies of this order be furnished to the parties free of cost.
Pronounced on 14th December, 2018.
[Usha S. Thakare]
Presiding Judicial Member
[A.K.Zade]
Member
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