State Consumer Disputes Redressal Commission
Ms Rudraksh Devlopers vs Kishor B Vavliya on 27 September, 2021
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Details DD MM YY
Date of Judgment 27 09 2021
Date of filing 27 05 2021
Duration 00 04 00
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Revision Petition No. RP/2021/10
Court No.1
1. M/s. Rudraksh Developers
A Partnership Firm Thorough It's Partner
Satyam Dhirajlal Devani
Add: Building-E, Flat NO. 404, 4th Floor,
Swastik Tower, Nr. Sarthana Jakatnaka,
Kamrej Road, Surat.
2. C/O. Pushkar Heights,
Nr. Satyam Residency, Nr. Nilkanth Plazma,
B/h. Balaji Residency, Opp. Mahalakshmi Society,
Yogi Chawk, Varacha,
Surat. ....Petitioner
Vs.
Kishor Bhikhabhai Vavliya,
Add : D-501, Satyam Residency, Nr. Nilkanth
Plazma, B/h. Balaji Residency, Opp.
Mahalakshmi Society,
Yogi chawk, Varacha,
Surat. ....Respondent
Revision Petition No.RP/2021/11
Court No.1
1. M/s. Rudraksh Developers
A Partnership Firm Thorough It's Partner
Satyam Dhirajlal Devani
Building-E, Flat NO. 404, 4th Floor,
Swastik Tower, Nr. Sarthana Jakatnaka,
Kamrej Road, Surat.
Arpita RP-2021-10/11 Page 1 of 13
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2. C/O. Pushkar Heights,
Nr. Satyam Residency, Nr. Nilkanth Plazma,
B/h. Balaji Residency, Opp. Mahalakshmi Society,
Yogi Chawk, Varacha,
Surat. ....Petitioner
V/s
Sandhyaben Ghanshyambhai Prajapati,
D-501, Satyam Residency, Nr. Nilkanth
Plazma, B/h. Balaji Residency, Opp.
Mahalakshmi Society, Yogi chawk, Varacha,
Surat. ....Respondent
Coram : Hon'ble Mr. Justice V. P. Patel, President
Mrs. U.P.Jani, Member.
Appearance : Mr. V. M. Pancholi, Advocate for the Petitioner.
Order : [By Hon'ble Mr. Justice V. P. Patel, President] Order by Mr. Justice V. P. Patel, President
1. The petitioner has filed RP/21/10 under Section 47 (1) (b) of the Consumer Protection Act, 2019, being aggrieved and dissatisfied with the interim order dated 30.3.2021 passed in Complaint No. 762/18 by the Surat (Main) District Consumer Disputes Redressal Forum at Surat (Main) (for short District Commission).
1.1. The petitioner has filed RP/21/11 under Section 47 (1) (b) of the Consumer Protection Act, 2019, being aggrieved and dissatisfied with the interim order dated 30.3.2021 passed in Complaint No. 763/18 by the Surat (Main) District Consumer Disputes Redressal Forum at Surat (Main) (for short District Commission).
2. Heard ld. advocate Mr. V. M. Pancholi for the petitioner. Though, notices were duly served in both cases to the Opponent (Original Complainant), they have not chosen to appear before this Commission.
2.1. The Petitioners are original opponents and Respondents are original complainants before the District Commission. Herein after the Arpita RP-2021-10/11 Page 2 of 13 3 petitioners and respondents will be referred as per their original status.
3. Facts of the case:
It is the case of the complainant that the complainant has purchased flat No. G-402 in the scheme known as Satyam Residency organized by opponents. That opponent contractor has not completed the work as per the advertisement/broacher issued by them. That due to various defects and imperfection in the work done by the opponents contractor as well as pending work by the opponent contractor - the complainant has preferred the complaint before the District Commission and prayed for more particularly in para 11 of the complaint.
3.1. Learned District Commission has issued the notice to the present opponent contractor. They appeared before the District Commission through advocate and filed a detail preliminary objection against the maintainability of the complaint. opponent contractor has moved an application for preliminary objection and stated before the District Commission that the complaint is not maintainable as requisite permission under Section 12(1)(c) was not obtained at the time of filing the complaint. Complainant has not followed the procedure which has been prescribed under Section 12(1)(c) of the Consumer Protection Act. Opponent contractor has raised the objection that District Commission does not have pecuniary jurisdiction to decide the complaint, hence, complaint is required to be dismissed only on the ground of preliminary objection raised by the opponent contractor. Complainant has not filed any rejoinder/clarification against the preliminary objection raised by the opponent contractor. The District Commission has dismissed the application filed by the opponent contractor raising the preliminary objection by its order dated 30.3.21. Hence, petitioners have filed present Revision Petitions against the interim order passed by the District Commission.Arpita RP-2021-10/11 Page 3 of 13 4
4. Argument of the appellant :
Ld. advocate for the appellant has argued that the order passed by the ld. District Commission is illegal, arbitrary and unjust and against the provisions of law. That the order passed by the ld. District Commission is against the principle of natural justice, without considering the legal as well as factual aspects. The complainant has shown purchase price incorrectly. The complainant has prayed number of prayers in his complaint before District Commission. That one of the prayers in the prayer clause for the complaint is about the so called, illegal construction against the approved plan in the open space allotted to the society. The complainant has prayed 11 different prayers which are affected to the other person. The value of the flat added to the amount of the cost of removal of defect which cost above 20 lakhs. It is further argued that the District Commission has no territorial jurisdiction if the prayer is considered for 164 flats. The complainant prayed the relief before the District Commission which is common in nature and for he benefit of all the flat holders of the subject matter. That the complainant has not taken permission u/S. 12(1)(c) of the Consumer Protection Act. Therefore, the complainant is not maintainability.
5. Merit of the case :
This Commission has considered the grounds stated in the Revision Petition, and reasons stated in the impugned order as well as documentary evidence produced on record.
5.1. The complainant has stated in para 6 of his complaint, which reads as under:
" 6. અભો પયીમાદીને જાહેયાતો મુજફની સુવલધાઓ આ કાભના સાભાલાાએ કયી આેર નથી , જે નીચે મુજફ છે .
૧. સત્મભ યે સીડન્સી ભાાં ફાંને ફાજુ ની દુ કાનની જગ્મા પ્રાનભાાં દળાા લેર સોસામટીની જગ્મા મુજફ નથી , એ જગ્મા સોસામટીની અંદયની દળાા લેર છે , તો પ્રાન મુજફ કયે ર નથી . ભાંજુ ૨ પ્રાન વલરૂધ્ધ ખુલ્રી ેસેજની જગ્માભાાં દુ કાનો ફનાલી દઈ , લેચાણ કયી દીધેર છે .
૨. કોભળીમર દુ કાનો ભાટે ના કોભન ટોમરેટ સોસામટીની અંદય ઉમોગ કયલા દે લાભાાં આલે છે . જે મોગ્મ નથી . તે ફાંધ કયાલલાભાાં આલે .Arpita RP-2021-10/11 Page 4 of 13 5
૩. ભેઈન ગેટ ઉ૨ સમ્ યે સીડન્સી નાભ ભોટા અને વ્મલસ્થથત દે ખામ તેથી , યીતે ફનાલલાભાાં / રખલાભાાં આલેર નથી .
૪. સીકયુયીટી કેફીન ફનાલી આેર નથી .
૫. અભો પયીમાદીની બફલ્ડીંગભાાં જે ભીટય રગાલેર છે , તેને જાી . ભાયી ને ેક કયી આેર નથી .
૬. સોસામટીની પ ૨ તી કમ્ાઉન્ડ દદલાર ઉય તાય પેન્સીગ કયી આેરા નથી .
૭. લચ્ચે ના સકા રભાાં તેભજ જે ાદકિંગ ભાાં ેલય બ્રોક તથા પરોયીગ ટાઈલ્સ કફજો સોતા હેરા જ ટુટી ગમેર અથલા ફેસી ગમેરા છે , તે યીેયીંગ કયી આેર નથી .
૮. અભો પયીમાદીની જી બફલ્ડીંગના દાદ ૨ ના ેસેજ તેભજ ફધાાં જ ાદકિંગભાાં લયસાદનુ ાં ાણી બયામ છે , જેનુ ાં વનયાકયણ કયી આેર નથી .
૯. પરેટની ખયીદી કયતી લખતે આલાભાાં આલેર પ્રાનભાાં ભાથટય ફેડ રૂભભાાં એસીના ોઈન્ટ દળાા લેર છે . જે સભાલાા ત ૨ પથી સગલડ આલાભાાં આલેર નથી .
૧૦. સાભાલાા ત૨પથી અભો પયીમાદી ાસેથી બ ૨ ણાાં , સવલિસ , ટે ક્ષ , લેટ આ પ્રકાયના નાણાાં ઉધયાલેર છે . તો તેભની વલગતલાય યસીદ અભો પયીમાદીને આેર નથી , તેભજ બફલ્ડીંગના ટાઈટરના જે કોઈ કામદે સ ૨ થતાાં ેય તેભજ રામસન્સ , ફી.યુ.સી , અસર ભાથટય પાઈર , રીપટ રામસન્સ વલગેયે અભો પ૨ીીમાદીને આેર નથી .
૧૧. અભો પયીમાદીની જી બફલ્ડીંગભાાં અંડય ગ્રાઉન્ડ લોટય ટેં ક ફનાલી આેર નથી . "
5.2. The Complainant has claim relief in para 11 of his complaint, which reads as under :
" ( ૧૧ ) સબબ અ૨જ કરવાની કે ...
આ કાભના સાભાલાા બફલ્ડય અભો પયીમાદી , બુકીંગ લખતે , જાહેયાતો કયી , બ્રોળય ફહાય ાડીને , તે મુજફનુ ાં ફાાંધકાભ કયી આલાનુ ાં , સુવલધાઓ આલાની ફાહેંધયી આેરી , તે મુજફ હાર થથ ય ફાાંધકાભભાાં યહેરી ક્ષવતઓ , જેલી કે ,
૧. સત્મભ યે સીડન્સી ભાાં ફાંને ફાજુ ની દુ કાનની જગ્મા પ્રાનભાાં દળાા લેર સોસામટીની જગ્મા મુજફ નથી , એ જગ્મા સોસામટીની અંદયની દળાા લેર છે , તો પ્રાન મુજફ કયે ર નથી . ભાંજુ ૨ પ્રાન વલરૂધ્ધ ખુલ્રી ેસેજની જગ્માભાાં દુ કાનો ફનાલી દઈ , લેચાણ કયી દીધેર છે .
૨. કોભળીમર દુ કાનો ભાટે ના કોભન ટોમરેટ સોસામટીની અંદય ઉમોગ કયલા દે લાભાાં આલે છે . જે મોગ્મ નથી . તે ફાંધ કયાલલાભાાં આલે . "
6. It is beneficial to refer hereunder some of the statutory provisions to decide controversy in the matter.
6.1. Section 12 ( 1 ) (c) of the Consumer Protection Act, 1986 reads as under :
"( 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 -Arpita RP-2021-10/11 Page 5 of 13 6
(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;"
6.2. Section 2 (1) (b) of the Consumer Protection Act, 1986 reads as under:
"(b) "complainant" means -
(i) a consumer ; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iv) one or more consumers, where there are numerous consumers having the same interest,"
6.3. Section 13 (6) of the Consumer Protection Act, 1986 reads as under :
"(6) Where the complainant is a consumer referred to in Sub - clause
(iv) of Clause (b) of Sub - section (1) of Section 2, the provisions of Rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon."
6.4. Order 1 of rule 8 of the Civil Procedure Code :-
" Rule 8. One person may sue or defend on behalf of all in the same interest -
(1) Where there are numerous persons having the same interest in one suit-
(a) one more of such persons may, with the permission of the court, sue of be sued, or may defend such suit, on behalf of , or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested;
(2) The Court shall, in every case where a permission or direction is given under Sub - rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1) may apply to the Court to be made a party to such suit. "Arpita RP-2021-10/11 Page 6 of 13 7
Pecuniary Jurisdiction :
7. It is argued by the ld. advocate for the petitioner that as per the sale deed the flat was purchased for the consideration of Rs. 9,16,000/-. One of the prayer in the complaint is about so called illegal construction against the approved plan. The petitioner has prayed other 11 prayers and the compensation of Rs. 50,000/-. It is further submitted that if total amount of above prayer is to be calculated and the value of the flat is added. The prayer of the complainant will be above Rs. 20 lakhs, in that case District Commission has no jurisdiction. It is also stated that if value of all the flat holders i.e. 164 is counted an amount will be Rs. 15,02,24,000/- in that case also District Commission has no jurisdiction.
8. Ld. advocate for the appellant has cited the Judgment I (2017) CPJ 1 NC in case of Ambrish Kumar Shukla & 21 Others V/s. Ferrous Infrastructure Pvt. Ltd. Hon'ble National Commission has held as under :
"15. For the reasons stated hereinabove. The references are answered as under :
Reference dated 24.5.2016 Issue Nos. (ii), (iii) and (iv)
(ii) A complaint under Section 12 (1) (c) of the Consumer Protection Act is maintainable before this Commission where the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation, if any, claimed in respect of all such consumers exceeds Rs. 1.00 crore. The value of the goods purchased or the services hired and availed of by an individual consumer or the size, or date of booking / allotment / purchase of the flat would be wholly irrelevant in such a complaint where the complaint relates to the sale / allotment of several flats / plots in the same project / building.
Reference dated 11.8.2016 Issues No. (i)
(iii) It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is Arpita RP-2021-10/11 Page 7 of 13 8 to be considered for the purpose of determining the pecuniary jurisdiction.
Issue No. (ii)
(iv) The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.
Issue No. (iii)
(v) The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any , claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum Issue No. (iv) (VI) In a complaint instituted under Section 12 (1) (c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate the value of the purchased or the Services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers."
9. As per the ratio laid down by the Hon'ble National Commission following points may be considered :
(a) The complaint is maintainable where the aggregate of value of goods purchased by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed, if any.
(b) That the value of goods for services may be taken into consideration but value or the cost of removing the deficiency is not required to be taken into consideration.
(c) Interest, consideration and compensation are required to be taken into consideration for determining the pecuniary jurisdiction.
10. Considering the grounds stated in the complaint para 4 which are produced herein in para 5.1, all the grounds are in the nature of not only an individual capacity but it is pertaining to for all the flat holders of the Satyam Residency. Further, considering the relief claim in the complaint is also not only concerned with the complainant but also it is concerned with all the flat holders.
Arpita RP-2021-10/11 Page 8 of 13 911. The complainant has not specifically stated anything regarding monetary value of consideration, compensation , etc. in his complaint (page 19). As per Sec. 11(1) of the Consumer Protection Act, 1986, the District Forum has jurisdiction to entertain complaints where the value of goods or services and compensation, if any claim dose not exceed than Rs. 20 lakhs. It appears that complaint is vague and obscure against this the value shown by the opponent in its preliminary objection appears definite and explicit. This value is believable.
Permission under Section 12(1)(c) of the Consumer Protection Act, 1986.
12. Ld. advocate for the petitioner has specifically raised the contention that petitioner has not taken permission under Section 12(1)(c) of the Consumer Protection Act. Though, he has asked relief for the benefit of all other flat holders, So interested, he has not asked for permission. Therefore, complaint is not maintainable.
13. We have considered the Judgment cited by the ld. advocate in case of Amrish Kumar (supra) wherein it is held as under :
Reference dated 24.5.2016 Issue No (i) " (i) A complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite permission in terms of Section 12 (1)
(c) of the Consumer Protection Act is accorded. "
Reference dated 11.08.2016 Issue Nos. (v) and (vi) "(vii) A complaint under Section 12 (1) (c) of the Consumer Protection Act can be instituted only by one or more consumers, as defined in Section 2 (1) (d) of the Consumer Protection Act. Therefore, group of Arpita RP-2021-10/11 Page 9 of 13 10 Cooperative Societies, Firms, Association or other Society cannot file such a complaint unless such society, etc. itself is a consumer as defined in the aforesaid provision."
Issue No. (vii) "(viii) More than one complaints under Section 12 (1) (c) of the Consumer Protection Act are not maintainable on behalf of or for the benefit of consumers having the same interest i.e. a common grievance and seeking the same / identical against the same person. In case more than one such complaints have been instituted, it is only the complaint instituted first under Section 12 (1) (c) of the Consumer Protection Act with the requisite permission of the Consumer Forum, which can continue and the remaining complaints filed under Section 12 (1) (c) of the Consumer Protection Act are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.
(ix) The individual complaints instituted before grant of the requisite permission under Section 12 (1) (c) of the Consumer Protection Act can continue despite grant of the said permission but it would be open to such complainants to withdraw their individual complaints and join as parties to the complaint instituted in a representative character. However, once the requisite permission under Section 12 (1) (c) of the Consumer Protection Act is granted, an individual complaint expressing the same grievance will not be maintainable and the only remedy open to a consumer having the same grievance is to join as a party to the complaint instituted in representative character. "
14. Following points are arisen from the above Judgment :
(a) That the complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only on behalf of or for benefit of all consumers having a common interest or common grievance seeking the same identical relief against the same person.
(b) More than one complaint under Section 12(1)(c) of the consumer act are not maintainable on behalf of or for benefit of consumers having the same interest in a common grievance.
(c) In case more than such complaints have instituted only one complaint is maintainable with the requisite permission and the other complaint are liable to be dismissed with liberty to join in the complaint instituted first with the permission of the Consumer Forum.Arpita RP-2021-10/11 Page 10 of 13 11
(d) Individual complaints are not maintainable they have to withdrawn their individual complaints and joint as party to the complaint instituted in representative character.
15. The petitioner has produced copy of preliminary objection raised before the District Commission :
"આ પદયમદલાા કેસોભાાં એક થી લધુ પદયમાદીઓએ એક સયખા ભાટે તેભજ એક સયખી દાદ ભાાંગલા ભાટે ની એક થી લધુ પદયમાદ નાભદાય પોયભ સભ ક્ષ કયી છે . જે પદયમાદો ના નાંફય નીચે મુજફ છે ." :-
નં. ફરરયાદ નં. ફરરયાદી ન ં નામ સામાવાળા ન ં નામ
૧ ૮૪૩/૧૮ ગૌયલ ભહેતા ભે. રૂદ્રાક્ષ ડેલરોસા
૨ ૭૬૨/૧૮ દકળોયબાઈ લાલરીમા ભે. રૂદ્રાક્ષ ડેલરોસા
૩ ૮૨૫/૧૮ જમેળબાઈ નાલડીમા ભે. રૂદ્રાક્ષ ડેલરોસા
૪ ૮૨૬/૧૮ ધભેળબાઈ દે સાઈ ભે. રૂદ્રાક્ષ ડેલરોસા
16. As mentioned in above para that for similar and having common grievance complaints have been filed against the same opponent and no permission under Section 12(1)(c) of the Consumer Protection Act is taken. Therefore, complaints are not maintainable.
17. The Hon'ble National Commission has issued guidelines in case of Amrish Kumar (supra) for according the permission under Section 12(1)(c) of the Consumer Protection Act read with order 1 rule 8 of the Civil Procedure Code which reads as under:
"16. Before parting with the references, we would like to emphasize that considering the binding effect of a decision rendered in a complaint under Section 12 (1) (c) of the Consumer Protection Act, on all the consumers, on whose behalf or for whose benefit such a complaint is filed, even if they chose not to join as a party to the complaint, it is necessary to exercise due care and caution while considering such a complaint even at the initial stage and to grant the requisite permission, only where the complaint fulfills all the requisite conditions in terms of Section 12 (1) (c) of the Consumer Protection Act read with Order 1 Rule 8 of the Civil Procedure; as interpreted in this reference. It would also be necessary for the bench to either give individual notices or an adequate public notice of the institution of the complaint to all the Arpita RP-2021-10/11 Page 11 of 13 12 persons on whose behalf or for whose benefit the complaint is instituted. Such a notice should disclose inter alia
(i) the subject matter of the complaint including the particulars of the project if the complaint relates to a housing project / scheme,
(ii) the class of persons on whose behalf or for whose benefit the complaint is filed,
(iii) the common grievance sought to get redressed through the class action,
(iv) the alleged deficiency in the services and
(v) the reliefs claimed in the complaint.
It will also be necessary to hear the opposite party, before taking a final view on the grant or otherwise of the permission required in terms of Section 12(1)(c) of the Consumer Protection Act."
18. We have considered the ground stated in memo of petition, reason stated in the impugned order, facts of the complaint filed before the Consumer District Commission, Surat, documentary evidence produced on record, argument advanced by the ld. advocate for the petitioner and ratio laid down by the Hon'ble National Commission in above referred Judgment. We are of the view that more than 1 complaints have been filed against the same person for the benefit of consumers having the same interest in a common grievance. The complaints are filed without the permission of the Consumer Commission under Section 12(1)(c) of the Consumer Protection Act, 1986. They are not maintainable. Therefore, The Revision Petitions are required to be allowed and order passed by the ld. District Commission in order dated 30.3.2021 passed in RP/21/10 and RP/21/11 are to be set aside and therefore, in the interest of Justice following order is passed :
ORDER
1. The Revision Petition No. RP/2021/10 and RP/2021/11 are allowed.
2. The order dated 30.03.2021 passed by the District Commission, Surat (Main) in Consumer Complaint No. 762/2018 and in Consumer Complaint No. 763/2018 are hereby set aside.Arpita RP-2021-10/11 Page 12 of 13 13
3. If complainants want to withdraw the complaints pending before the District Commission and file a fresh complaint considering pecuniary jurisdiction, consideration, compensation, permission u/S 12(1)(c) of the Consumer Protection Act, etc. if they are advised, so, the permission may be granted by the District Commission.
4. Ld. District Commission is directed and ordered to take necessary action in view of the para 16 of Judgment of Hon'ble national commission in case of Amrish Kumar (supra) and pass necessary order.
5. It is made clear that this commission has not expressed any opinion on merits of the case and entitlement of relief.
6. No order as to cost.
7. Registry is directed to place a copy this order in record and proceedings of Revision Petitions No. RP/2021/11.
8. Registry is directed to send a copy this order of Revision Petitions No. RP/2021/10 and RP/2021/11 to the parties as well as to intimate the ld. District Commission Surat (Main) through E-
mail in PDF format for taking necessary order.
Pronounced in the open Court today on 27th September, 2021.
[ Mrs. U.P.Jani] [Mr. V. P. Patel]
Member President
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