National Consumer Disputes Redressal
Mr. Dayesh Kumar Porwal & 53 Ors. vs Neesa Infrastructure Ltd. & 3 Ors. on 2 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2217 OF 2016 1. MR. DAYESH KUMAR PORWAL & 53 ORS. S/o Mr. Shridhar Porwal, P.S. Talwandi Kota Rajasthan 324005 2. Mr. Anurag Jain S/o Sh. Prakash Chand Jain 18, Marothiya Colony, Delwara Road, Baawar Ajmer 305901 3. Mrs. Khooshbu Jain W/o Mr. Anurag jain 18, Marothiya Colony, Delwara Road, Baawar Ajmer 305901 4. Sh. Sanjiv Kumar Argal S/o Sh. Jagannath Prasad Argal C-410, Saheli Nagar Udaipur, Rajasthan 313001 5. Smt. Vibha Argal W/o Sh. Sanjiv Kumar Argal C-410, Saheli Nagar Udaipur, Rajasthan 313001 6. Sh. Finny Philip S/o Sh. P. O. Philip Filadelfia, Sanjay Park Rani Road, Udaipur Rajasthan 313001 7. Smt. Glory M Philip W/o Sh. Finny Philip Filadelfia, Sanjay Park Rani Road, Udaipur Rajasthan 313001 8. Mr. Mukesh Siroya S/o Nandalal Siroya Bharat Bhawan, Tekri Road, Near Police Lane, Near J. C. Bose Hostel, Udaipur 9. Mr. Mukesh Siroya S/o Nandalal Siroya Bharat Bhawan, Tekri Road, Near Police Lane, Near J. C. Bose Hostel, Udaipur Rajasthan 313001 10. Smt. Maya Siroya W/o Mr. Mukesh Siroya Bharat Bhawan, Tekri Road, Near Police Lane, Near J. C. Bose Hostel, Udaipur Rajasthan 313001 11. Sh. Abhisek Pamecha S/o Arvind Kumar pamecha, B-5, Govind Nagar, Bhilwara, Bye Pass Road, Opp. R. K. Hospital Kankroli, Rajasthan 313324 12. Sh. Arvind Kumar Pamecha S/o Late Sh. Bhanwal Pamecha B-5, Govind Nagar, Bhilwara, Bye Pass Road, Opp. R. K. Hospital Kankroli Rajasthan 313324 13. Sh. Rajat paliwal W/o Sh. Vishnu Shanker paliwal 17, Jal Vihar Colony A, Behind Mahaveer Department Store, Manwa Khera Sel 4, Hiran Magri, Udaipur Rajasthan 14. Sh. Paritosh Paliwal S/o Sh. Ganesh Lal Paliwal 2nd Street, M Kamal Talal Road Near Bus Stand, Kankroli, Rajsamand, Rajasthan 15. Sh. Ajay Chowdhary, S/o Bhagwat Bahadur Chowdhary, Nirmal Chlaya, Jadia Complex Jal Chakki Road, Kankroli, Rajasthan 16. Sh. Tansukh Rai Chauhan, S/o Late Sh. Ram Deo Chauhan, 11, Pragati nagar Near Power House, Sajjangarh road, Udaipur Rajasthan 313001 17. Sh. Stephen Peschke W/o Ultrich Peschke, c/o 101, Daulat Chambers Sardarpura, Udaipur 313001 18. Sh. Manmeet Singh Saluja S/o Sh. Ravindra Singh Saluja 14, Guru Ram Das Colony, Udaipur Rajasthan 313001 19. Ms. Rekha Kumawat S/o Mewalal kumawat, 44, Kumawat Pura, Udaipur Rajasthan 313001 20. Mr. Narayan Lal Kumawat W/o Takhat Ram Kumawat 44, Kumawat Pura, Udaipur Rajasthan 313001 21. Sh. Rakesh Kanthed, S/o Sh. Roshan lal kanthed, Hicap Magart Sector 3, Udaipur Rajasthan 313002 22. Sh. Rajendra prakash Palod S/o Sh. Madan lal Palod, 15, Nakoda Complex, Hiran Magri Sector 4, Udaipur Rajasthan 313002 23. Smt. Archana Kothari W/o Sh. Pradeep Kothari C/o R. Palod 15, Nakoda Complex Hiran Magri Sect 4, Udaipur Rajasthan 313002 24. Sh. Mohit Jain S/o Sh. B. C. Jain, C/o Pari Collection, Teej Ka Chowk, Inside Delhi Gate, Udaipur Rajasthan 313001 25. Mrs. Vijay Gupta, W/o Sh. R. K. gupta, R/o 162-163, Mahapragya Vihar, Bhawana, Udaipur Rajasthan 315001 26. Smt. Kusum Maheshwari Sh. Narayan Das Maheshwari, 31/2-3, Nazar Bagh, Naiyonki Talai, Udaipur Rajasthan 27. Sh. Vijay Kavdia S/o Sampat Lal Kavdia Powerpoint, Opp. Hotel Rajmahal, Collectriate Road kankroli, Rajasthan 313326 28. Sh. Shreeniwasan Ayyar, S/o Late R. A. Ayyar, Sh Sai Kripa, 1408, Gayatri Nagar, Hiran Mogri Sector 5, Udaipur Rajasthan 313002 29. Smt. Meena Thapa W/o Sh. Harsh Singh Negi Flat No. 404, 4th Block, Suncity Apartments, Sarjipur Road, IBBLUR, Bangalore 560102 30. Sh. Devilal Paliwal S/o Sh. Nandlal paliwal Malviya Chowk, Kankroli Rajsamand, Rajasthan 313324 31. Smt. Seni Devi Paliwal W/o Sh. Devi Lal Paliwal Malviya Chowk, Kankroli Rajsamand, Rajasthan 313324 32. Sh. Rajesh Surana S/o Late Sh. Mangilal Surana, S-13, Classic Homes, New Astc HUDCO, Matham Road, Husur Tamil Nadu 635109 33. Smt. Vijay laxmi Surana W/o S. Rajesh Suana, S-13, classic Homes, New Astc HUDCO Matham Road, Husur Tamil Nadu 635109 34. Smt. Seema Philemon W/o Sh. Samson Samuel Philemon, F-48, Civil Lines, Tiger Hills, Badi Road, Udaipur Rajasthan 313001 35. Sh. Rakesh Maheshwari, S/o Sh. Brij Mohan maheswari, 385, 2nd Floor, Brij Bhawan, Near Maharashtra Bhawan, Udaipur Rajasthan 313001 36. Smt. Ranjana Harish Jain W/o Sh. Harish G. Jain, 577, Hiran magri Sect 4, Tagore Nagar, Udaipur Rajasthan 313001 37. Sh. Bharat Kumar Dangar, S/o Sh. Kalu Singh Dangar V&P Dungra Bora, Teh Sajjangarh, Banswara, Rajasthan 38. Sh. Suresh Danger S/o Sh. kalu Singh Danger, V&P Dungra Bora, Teh Sajjangarh, Banswara Rajasthan 39. Sh. Khuman Giri Goswami S/o Late Chhagan Giri Goswami 126A, Sector 2, Gandhinagar, Chittorgarh Rajasthan 312001 40. Smt. Indra Goswami W/o Sh. Khuman Giri Goswami 126A, Sector 2, Gandhinagar, Chittorgarh Rajasthan 312001 41. Smt. Priyanka Dwivedi W/o Sh. Gopal Dwivedi C-1/42, Century Apptts., 48, Richmond Road, Bengaluru 42. Ms. Neha Porwal S/o Sh. Rakesh Jaiswal P.S. Talwandi Kota Rajasthan 324005 43. Sh. Surendera K. Soni S/o Late Sh. Rameshwar Pd. Soni, A 7, Shree Vihar, Shakuntlam, Shree Cement Ltd. Bangur Nagar Beawar 305901 44. Smt. Tara Soni W/o Sh. Surendera K. Soni A7, Shree Vihar, Shakuntlam, Shree Cement Ltd. Bangur Nagar Beawar 305901 45. Sh. Shashi Kumar Goswami S/o Sh. Hari Goswami, Shree Vihar, Shakuntlam, Shree Cement Ltd. Bangur Nagar, Beawar 305901 46. Smt. Rasmi Goswami W/o Sh. Shashi Kumar Goswami Shree Vihar, Shakuntlam, Shree Cement Ltd. Bangur Nagar, Beawar 305901 47. Sh. Suresh Balani S/o Sh. M. D. Balani, 106, Shanti Priya Nagar, Pal Link Road, Jodhpur Rajasthan 48. Smt. Anju Balani W/o Sh. Suresh Balani 106, Shanti Priya Nagar, Pal Link Road, Jodhpur Rajasthan 49. Sh. Pawan Kumar P. Soni S/o Prakash P. Soni Rajshree Vatika, Flat No. 202, Near Maharashtra manda, Opp. Bldg. No. 34, pantnagar, Ghatkopar East Mumbai 400075 50. Smt. Payal Agrawal W/o Sh. Dinesh Agrawal 3, Jyoti Nagar, Nr. Vaishali Aptt. Manavakheda road,Udaipur Rajasthan 51. Smt. Sonika Lakshkar W/o Sh. Shyam Sundar Lakshkar, C-5, 6 Shiv Park Colony, Durga Nursery Road, Udaipur Rajasthan 52. Smt. Meenakshi Raizada W/o Sh. Kamal Raizada 121, Nella Post Balica, Near L Block, Sector 14, Udaipur Rajasthan 53. Smt. Ela Dixit W/o Sh. Prashant Dixit B-5, 2nd Floor, Sector 51, Noida 201501 UP 54. Prakash Chandra Soni S/o Kanhaiyalal Ji Soni Vill Thamla Hal Niwas R/11, Damji Computer, Station Road, Ghatkopar, Mumbai 400075 ...........Complainant(s) Versus 1. NEESA INFRASTRUCTURE LTD. & 3 ORS. Regd. Off Plot No. 278/279, Pancharatna Industrial Estate, Opp. Arnac Cold Storage, Changodar Ahmedabad 382213 2. Indian Overseas Bank Ashram Road Branch, Chinu Bhai Towers, Opp. Handloom House, Ashram road, Ahmedabad, Gujarat 380009 3. Sh. Sanjay Gupta Additional Director Neesa Infrastructure Ltd. R/o B-202, Dhananjay Towers, Near Shyamal Row House, Satellite Road, Ahmedabad Gugarat 380051 4. Sh. Arvind Kumar Jagannath Prasad Gupta Neesa Infrastructure Ltd. R/o A-304, Sagar Samarat Apt. Times Of India Road, Satellite Road, Ahmedabad Gujarat 380051 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER
For the Complainant : Mr. A.K. Thakur, Advocate For the Opp.Party :
Dated : 02 Feb 2017 ORDER
The instant complaint has been filed by 54 complainants jointly. Allegations in the complaint are that the complainants booked flats in the development project undertaken by opposite party No.1 and made certain payment against the consideration amount. Opposite party No.1 has failed to complete the project and deliver possession. Opposite party No.2 bank had financed the project of opposite party No.1. As opposite party No.1 has defaulted, opposite party No.2 has attached the property on which the project was to be developed and taken over the same under SARFAESI Act. Opposite
-2-
party No.2 is now planning to auction the property. Being aggrieved the complainants have filed the joint complaint with the following prayers: -
Allow this complaint and direct the respondents No.1,3 & 4to refund Rs.3,30,21,333/- the money paid by the respective complainants alongwith interest @ 18% p.a. in terms of the tabular chart Annexure-C/1.
Direct respondent No.2 to conduct the proceedings of auction in a transparent and reasonable manner so as to fetch best possible price of the property and to secure the interest of the complainants.
Award compensation of Rs.10,00,000/- to each of the complainants and against the respondent No.1 on account of harassment, mental agony and deceptive practices meted out to the complainants.
Direct the respondent No.1 to bear the cost incurred for the legal proceedings.
Pass such other and further orders or directions as may be deemed fit and proper."
2. Alongwith the complaint, an application under Section 12 (1) (c) of the Consumer Protection Act, 1986 has also been filed seeking prayer to jointly proceed with the complaint.
3. We have heard learned counsel for the complainants.
4. As there were conflicting views in the Commission regarding the interpretation and scope of Section 12 (1) (c) of the Act, the matter was referred -3- by the Hon'ble President to a Larger Bench in Consumer Case No.97/2016 titled Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd. to answer the issue regarding interpretation and scope of Section 12 (1) (c) of the Act. The Larger Bench in its order dated 7.10.2017 in the above referred consumer case has observed as under: -
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term 'persons so interested' and 'persons having the same interest' used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words "all consumers so interested' and -4- "on behalf of or for the benefit of all consumers so interested", in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider."
5. On reading of the above observations of Larger Bench it is clear that where there are numerous consumers having common interest, one or more consumers can be permitted to maintain a joint complaint provided there is a communality of interest amongst the complainants and numerous other consumers and the complaint has been filed for the benefit of all such consumers including the consumers who are not party to the complaint but having same interest.
6. As the complainants have sought reliefs for themselves and not on behalf of other consumers who have booked the flats in the subject development project, this matter cannot be termed as "class action" as envisaged under Section 12 (1) (c) of the Act. Thus, this is not a fit case for grant of permission under Section 12 (1) (c) of the Act. Permission is accordingly declined as 54 different complainants have filed the joint complaint in respect of their respective agreements. This is a clear case of misjoinder of parties and causes of action. Accordingly complainant is dismissed.
-5-7. It is, however, clarified that this order will not come in the way of the complainants to avail of the remedy legally available to them by approaching appropriate forum in appropriate form on the same cause of action.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER