State Consumer Disputes Redressal Commission
Shri Rambachan B Jaiswal vs M/S Aditya Construction & Developers ... on 6 December, 2017
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BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/12/714
(Arisen out of Order Dated 05/11/2011 in Consumer Complaint
No.CC/09/242 of Mumbai Suburban District Forum at Bandra)
1] Shri Rambachan B. Jaiswal,
R/at - Shivshakti Chawl,
Chaitanya Nagar, IIT Market,
HareKrushna Road, Powai,
Mumbai 400 067.
2] Smt.Shila Jaiswal,
R/at - Shivshakti Chawl,
Chaitanya Nagar, IIT Market,
HareKrushna Road, Powai,
Mumbai 400 067. ...........Appellant(s)
Versus
1] M/s. Aditya Construction & Developers
Pvt. Ltd.
[Presently known as M/s. Conwood
Construction and Developers Pvt.Ltd.]
Regd.office at - Conwood House, Yashodhan,
General A.K. Vaidya Marg,
Goregaon East, Mumbai 400 063.
2] Shri Ram Daryanani,
Holding the post of Director of respondent
no.1, having office at Dynamics House,
Yashodhan, General A.K.Vaidya Marg,
Goregaon East, Mumbai 400 063.
3] Shri Rajiv Agarwal,
Holding the post of Director of respondent
no.1, having office at Dynamics House,
Yashodhan, General A.K.Vaidya Marg,
Goregaon East, Mumbai 400 063. ............Respondent(s)
FIRST APPEAL NO.A/12/715
(Arisen out of Order Dated 05/11/2011 in Consumer Complaint
No.CC/09/243 of Mumbai Suburban District Forum at Bandra)
1] Smt.Shamshad M. Naeem Shaikh
R/at - Om Shivshakti Apartment No.1,
1st floor, 111-D Wing, Malad East,
Mumbai 400 097. ...........Appellant(s)
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2] Shri Mohd. Zahir M.N. Shaikh
R/at - Om Shivshakti Apartment No.1,
1st floor, 111-D Wing, Malad East,
Mumbai 400 097.
Versus
1] M/s. Aditya Construction & Developers
Pvt. Ltd.
[Presently known as M/s. Conwood
Construction and Developers Pvt.Ltd.]
Regd.office at - Conwood House, Yashodhan,
General A.K. Vaidya Marg,
Goregaon East, Mumbai 400 063.
2] Shri Ram Daryanani,
Holding the post of Director of respondent
no.1, having office at Dynamics House,
Yashodhan, General A.K.Vaidya Marg,
Goregaon East, Mumbai 400 063.
3] Shri Rajiv Agarwal,
Holding the post of Director of respondent
no.1, having office at Dynamics House,
Yashodhan, General A.K.Vaidya Marg,
Goregaon East, Mumbai 400 063. ............Respondent(s)
FIRST APPEAL NO.A/12/716
(Arisen out of Order Dated 05/11/2011 in Consumer Complaint
No.CC/09/244 of Mumbai Suburban District Forum at Bandra)
1] Shri Mohd. Naeem Shaikh Abdulla,
R/at - Om Shivshakti CHSl Ltd.,
4/111, 1st floor, Building No.1,
In front of Triveni Nagar,
Malad East, Mumbai 400 097.
2] Shri Habibur Rehman Shaikh
M.N.
R/at - Om Shivshakti CHSl Ltd.,
4/111, 1st floor, Building No.1,
In front of Triveni Nagar,
Malad East, Mumbai 400 097. ...........Appellant(s)
Versus
1] M/s. Aditya Construction & Developers
Pvt. Ltd. ............Respondent(s)
3
[Presently known as M/s. Conwood
Construction and Developers Pvt.Ltd.]
Regd.office at - Conwood House, Yashodhan,
General A.K. Vaidya Marg,
Goregaon East, Mumbai 400 063.
2] Shri Ram Daryanani,
Holding the post of Director of respondent
no.1, having office at Dynamics House,
Yashodhan, General A.K.Vaidya Marg,
Goregaon East, Mumbai 400 063.
3] Shri Rajiv Agarwal,
Holding the post of Director of respondent
no.1, having office at Dynamics House,
Yashodhan, General A.K.Vaidya Marg,
Goregaon East, Mumbai 400 063.
BEFORE:
Hon'ble Mr. P.B.Joshi, Presiding Judicial Member
Hon'ble Mr. A.K. Zade, Member
For the Appellants: Adv. Akshay Deshmukhr
For the Respondents Adv. Bhaskar Yogi
:
COMMON ORDER
Per Mr. P.B.Joshi, Presiding Judicial Member [1] Being aggrieved by common order dated 05/11/2011 in Consumer complaints No.CC/09/242, CC/09/243 and CC/09/244 passed by Mumbai Suburban District Forum at Bandra, Mumbai dismissing the complaints, present appeals have been preferred by the original complainants.
[2] Facts necessary for deciding these appeals can be stated as under:-
Consumer complaints no. CC/09/242, CC/09/243 and CC/09/244 were filed by Mr.Rambachchan B. Jaiswal & ors., Smt.Shamshad M. Naeem Shaikh & ors. And Mr.Mohammad Naeem 4 Shaikh Abdulla & ors. respectively against M/s.Aditya Construction and Developers Pvt.Ltd. for different reliefs. Reliefs in all complaints are the same. The prayers in the complaints are to the effect that the opponents be directed to remove defects mentioned in the prayer clause of the complaint memo by passing appropriate order U/s.14 of the Consumer Protection Act, 1986 and claiming compensation of Rs.15 lakhs.
[3] Those consumer complaints were resisted by the opponents by filing written version. Defence is that the complaints are not tenable as those are filed for claiming common amenities and individual cannot file such complaint. They have to file complaints u/s.12(1)(c) of the Consumer Protection Act, 1986. Opponents have denied the deficiency on their part and prayed for dismissal of the complaints.
[4] Considering rival contentions of the parties, District Forum dismissed all three complaints. It is against that common order present appeals have been filed by the present appellants/original complainants.
[5] Considering rival contentions of the parties, considering the record and keeping in view the scope of the appeals, following points arise for our consideration and our findings on them are noted as below:-
Points Findings
1. Whether the complaints as filed are No
tenable in the form in which those
complaints are filed?
2. Whether there is deficiency on the part of Does not survive for the opponents? consideration.
3. Whether the complainants are entitled for Does not survive for the reliefs sought in the prayer clause consideration. about deficiency in service?
4. Whether the complainants are entitled for Does not survive for the compensation of Rs.15 lakhs as consideration. mentioned in the prayer clause?
5. What order? As per final order.5
POINT NO.I :-
[6] After going through the original complaints and particularly prayer clause, we find that there is no prayer in respect of individual complainants. All prayers are in respect of common amenities for the complainants and other shop owners. This point became more clear when we specifically asked the advocate for the appellants whether there is any prayer in respect of individual only. However he could not satisfy us that any of the said prayers is individual prayer. From the prayer clause, it is very clear that prayers are common for persons occupying different shops in the said building.
[7] Learned advocate for the respondents has submitted that the complainants would have filed the complaints under Sec.12(1)(c) of the Consumer Protection Act, 1986 as they are claiming the amenities for all the persons occupying different shops. Learned advocate for the appellants has submitted that these complaints are filed by individual complainants and there is no question of filing the complaints under Sec.12(1)(c) of the Consumer Protection Act, 1986.
[8] No doubt, complaints are filed by two complainants each. However, no where it is mentioned that these complaints are filed under Sec.12(1)(c) of the Consumer Protection Act, 1986. So also, advocate for the complainants did not submit that these complaints are filed under Sec.12(1)(c) of the Consumer Protection Act, 1986. However, considering the prayer clause, it is very clear that the complaints are filed for common amenities to be provided to the complainants and other shop owners in the said building. That will be more clear if we refer the prayer clause which is to that effect "Opponents be directed to remove all deficiencies mentioned in the memo of this complaint within such time as this Hon'ble Forum may deem fit and proper by passing appropriate order under Section 14 of the Consumer Protection Act, 1986 in favour the present complainants herein" and those facilities are mentioned in the prayer clause at page no.46 of the appeal compilation i.e. para no.9 (a), (b), (c) etc. i.e. about occupation certificate, delay in handing over possession, 6 maintenance charges, property tax and centralised A.C., forming of co- operative society, maintenance of toilets which are common for all, electric supply to common bath rooms, regular water connection, kids corner, food court, security guard etc. Thus, these prayers are about common facilities to all the shop owners in the said premises including complainants. Learned advocate for the appellants has submitted that we have mentioned that there is a delay in handing over possession and hence this is an individual prayer. It is also submitted that maintenance charges given by the complainants is also an individual prayer. We find that even accepting the said contention of the complainants, it is very clear that the complaints are mainly for the common amenities to be provided to all the shop owners in the building including the complainants and in such case, individual cannot file a complaint unless all other shop owners are joining him or they are made opponents or the society of all the shop owners can file complaint or society is made opponent. Here, the complainants have not done anything of that and filed individual complaints claiming facilities for all the persons having shop owners in that premises and when such prayers are made, it is mandatory that it should be filed under Sec.12(1)(c) of the Consumer Protection Act, 1986 to safeguard the interest of others for whom amenities are sought. Thus, we find that the consumer complaints are filed in the present form are not maintainable at all.
[9] Thus, it has come on record that before disposal of the consumer complaints, society was formed by the shop keepers including the complainants and filed another consumer complaint before this State Commission for the same reliefs i.e. for amenities for all shop owners in the premises. Under such circumstances, both the complaints cannot run together. It was necessary for the complainants to withdraw their complaints which are filed for common amenities. The reason is that for that they have not applied under Sec.12(1)(c) of the Consumer Protection Act, 1986 or they have not adopted/joined the complaint filed by the society. There is no question to decide this complaint for those reasons and thus we find that the complaints are not at all maintainable as not 7 filed in mandatory form in which it should have been filed. It is material to note that the consumer complaint bearing no.CC/11/120 is filed by the society against the same opponents for the same reliefs for all the persons having shops in the said premises. For these grounds, appeals deserve to be dismissed. In view of the above discussion, we answer the Point-I accordingly.
[10] In view of the answer to Point-I, we need not find any reason to discuss other points. Hence, those points do not survive for consideration. In view of the above discussion and findings, the appeals deserve to be dismissed. Hence, we pass the following order.
ORDER
1) Appeals bearing no.A/12/714, A/12/715 and A/12/716 are hereby dismissed.
2) Under the circumstances, no order as to costs.
Pronounced Dated 6th December, 2017.
[ P.B. Joshi ] PRESIDING JUDICIAL MEMBER [ A.K. Zade ] MEMBER pg