National Consumer Disputes Redressal
Dwarkadhish Projects Pvt. Ltd. vs V.P. Misra & 3 Ors. on 14 August, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1098 OF 2017 (Against the Order dated 14/02/2017 in Complaint No. 255/2009 of the State Commission Delhi) 1. DWARKADHISH PROJECTS PVT. LTD. PD 4A, PITAMPURA NEW DELHI 110088 ...........Appellant(s) Versus 1. V.P. MISRA & 3 ORS. 157 SATYA NIKETAN NANAK PURA NEW DELHI 110021 2. MRS. SARLA MISRA 157 SATYA NIKETAN NANAK PURA NEW DELHI 110021 3. MR. BHANU PRATAP MISRA 157 SATYA NIKETAN NANAK PURA NEW DELHI 110021 4. MS. PRAVEEN MISRA 157 SATYA NIKETAN NANAK PURA NEW DELHI 110021 ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. Nityanand Singh &
Ms. Joohi, Advocates For the Respondent : Mr. Bhaskar Mishra, Advocate
Mr. Ashutosh Kumar, Advocate
Mr. Harshul Singh, &
Ms. Kritika Khurana, Advocates
Dated : 14 Aug 2018 ORDER
This appeal has been filed by the appellant Dwarkadhis Projects Pvt. Ltd. against the order dated 14.02.2017 of the State Consumer Disputes Redressal Commission, Delhi, (in short 'the State Commission') passed in Complaint No.255/2009.
2. Brief facts of the case are that the complainant Mr. V.P. Mishra filed a complaint stating that three flats A-1/33, A-1/34 and D-3/36 were booked in the name of V.P.Mishra and Ms. Praveen Mishra, Sarala Mishra and Bhanu Pratap Mishra and the third one in the name of Sarla Mishra and V.P. Mishra with the opposite party/appellant herein. It has been alleged that later on, the plan was changed and more floors were added in the construction plan. Even the prices of flats were increased. No possession was in sight. Hence a consumer complaint was filed before the State Commission for refund of the amount paid. The complaint was resisted by the opposite party/appellant by filing the written statement. Finally, the State Commission decided the complaint vide its order dated 14.02.2017 as under:-
"6. We have gone through the material on record and heard the arguments. The application of the OP is liable to be dismissed in view of decision of national Commission in Kavita Ahuja Vs. Shipra Estate I (2016) CPJ-31 in which it has been held that merely because more than one flat has been booked does not mean that it was meant for commercial purpose. OP has to show that earlier also complainant had booked some flat and sold the same. In this case four persons have booked three flats. Thus there is no indication of booking being commercial.
7. On merits it may be mentioned that booking by complainants and payment by the complainants has not been disputed by the OP. The booking was done in the year 2007 and flats are not completed till today in 2017. So it is a clear cut case of deficiency on the part of OP.
8. It may be mentioned that though complainants have claimed interest @18% per annum in the complaint, yet on 26.07.2016, the complainants have stated they were ready to take back the amount with interest @6% per annum. Counsel for OP sought time to take instructions which was allowed till 14.09.2016. On 14.09.2016 further time was given till 29.09.2016 and then till 20.12.2016 followed by 02.02.2017. On 02.02.2017 also counsel for OP expressed his inability to take instructions. Further request for time was declined.
9. It is not clear as to what OP expects. If they are not willing to refund the amount even with 6% interst, they cannot be allowed to usurp the amount. They have already used the money of complainants for 10 years.
10. In view of the above discussions, the complaint is allowed, OP is directed to refund the amount of Rs.36,10,200/- with interest @6% per annum from the date of deposit till date of refund.
11. The order shall be complied with within 45 days.
12. Copy of this order be sent to both the parties free of cost."
3. Hence the present appeal.
4. Heard the learned counsel for the parties and perused record.
5. The main objection of the appellant is that only one complainant Mr. V.P.Misra has filed the complaint on behalf of all the buyers, who are different. It has been stated in the appeal that there is no provision for filing joint complaint except under Section 12(1)(C) of the Consumer Protection Act, 1986 and the complaint should have been rejected on the ground of misjoinder of parties itself as no application under Section 12(1)(c) was moved and no permission has been granted under Section 12(1)(C) of the Consumer Protection Act, 1986 by the State Commission, but the State Commission has allowed this joint complaint. The learned counsel for the appellant mentioned that even if the appellant wanted to refund the amount as per the impugned order of the State Commission, it is not clear to whom the amount should be refunded.
6. Learned counsel for the appellant referred to the following judgments in support of his contention:-
(1) CC No.250 of 2013, Rameshwar Prasad Shrivastava & 18 Ors., Vs. M/s. Dwarkadhis Projects Pvt. Ltd. & 2 Ors., decided on 13.02.2018 (NC) It has been held that:-
"8. In the instant case, as mentioned above, no application under Section 12 (1) (c) of the Act has been filed by the Complainants seeking permission to file a joint Complaint/Class Action Suit, which is mandatory provision under the Act and hence, the present Complaint is not maintainable and deserves to be dismissed solely on this ground. Accordingly, the Complaint is dismissed being not maintainable."
(2) FA No.527 of 2017, Madhukar Demble & Anr. Vs. Samiah International Builders (Pvt.) Ltd. & Anr. It has been held that:
"............ The Complainants then filed a Consumer Complaint, bearing No.1034/2016 before this Commission, which was dismissed on 7.10.2016 with the specific direction to the Complainant to file the three separate Complaints before the State Commission and the order dated 31.5.2016 of the State Commission shall not come in the way. This order clearly means that this Commission has not found the order of the State Commission dated 31.5.2016 as a correct order and the Complainant has been given opportunity to file the separate Complaints as earlier before the State Commission."
7. Learned counsel for the appellant further stressed that if the total valuation of all the flats mentioned in the complaint is taken into consideration, the same exceeds rupees one crore and therefore, the State Commission did not have the pecuniary jurisdiction to deal with the present complaint. Learned counsel referred to the decision of the larger Bench of this Commission in Consumer Case No.97 of 2016, Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), wherein it has been held that the total consideration of the goods or services along with compensation claimed shall form the basis for determining the pecuniary jurisdiction of the consumer forum.
8. The learned counsel for the respondents stated that no such objection was raised before the State Commission and therefore, State Commission decided the complaint on merits. The reasoned order of the State Commission cannot be set aside on the technical ground of misjoinder of parties only. The respondents are suffering since 2007 and the complaint was filed in 2009 and the decision has come in 2017. The State Commission has only ordered the refund of the amount paid by the respondents with interest @ 6% p.a. only. The complainants had agreed before the State Commission to take this small rate of interest @6% p.a. only to get rid of the litigation. It was further stated that they have filed the affidavits of all the respondents that refund for all the three flats may be made to the complainant V.P.Misra. It is true that it was a joint complaint because all four complainants are family members and had this objection been raised earlier before the State Commission, the same would have been cured before the State Commission. The appellant has made all the four buyers as respondents, and all the remaining three respondents other than the complaint V.P.Misra have filed separate affidavits praying that the refund may be given to the complainant V.P.Misra.
9. Learned counsel for the respondents referred to the following judgments in support of his contention:-
(1) Kuldeep Kumar Dubey and Ors. Vs. Ramesh Chandra Goyal, (2015) 3 SCC 525. It has been held that:-
"10. In our view, the District Judge is, thus, not justified in reversing the decree of the trial Court on such a technicality which did not in any manner affect the merits of the case. Section 99 of the Code of Civil Procedure, 1908 provides as under :
"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: -No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a necessary party."
11. Thus, the High Court also erred in upholding the order of the District Judge.
12. Accordingly, we allow this appeal, set aside the impugned orders of the High Court and the District Judge and restore the order of the trial Court dated 8th December, 1998 in JSCC No.5 of 1995 passed by the Civil Judge, (J.D.), Hasanpur, Moradabad. No costs."
(2) Manti Devi & anr. Vs. Kishun Sah @ Kishun Deo Sao & Ors., Civil Appeal No.(s).2014/2009, decided on 23.03.2017 (SC) wherein it has observed:-
"4. Learned senior counsel, inviting our attention to Section 99 of the Code of Civil Procedure, contends that no decree shall be reversed or varied substantially on account of non-joinder or misjoinder of parties. Section 99 of the Code of Civil Procedure reads as follows:-
"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court;
Provided that nothing in this section shall apply to non-joinder of a necessary party."
5. The provision, in our view, is crystal clear. No decree can be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties. Under Section 141 of the Code of Civil Procedure, procedure under the code in regard to suit shall be followed as far as it can be made applicable to proceedings in any court of Civil jurisdiction. Therefore, what is provided under Section 99 of the code of Civil Procedure in respect of appeal would apply to revision as well."
10. I have perused the record and have considered the arguments of learned counsel for the parties. It is true that Mr. V.P.Misra, the complainant is not the purchaser in all the three flats. He is one of the purchasers in two flats Nos.A-1/33 & D-3/36. Flat No.A-1/33 is in name of V.P.Misra and Praveen Misra, daughter of V.P.Misra and flat No.D-3/36 has been booked in the name of V.P.Misra and wife Sarla Misra. Clearly V.P.Misra is not one of the purchasers for the flat A-1/34, which is booked in the name of Sarla Misra and Bhanu P. Misra. Following are the details of the units booked along with consideration amount and the amount paid in respect of the three units:-
Name of the purchasers Flat No. (super area) Total consideration of the flat (approx..) Amount paid V.P.Misra and Praveen Misra A-1/33 1800 sq.ft.
25,47,000 (approx..) Rs.13,53,825/-
Sarla Misra and Bhanu P. Misra A-1/34 1800 sq. ft.
25,47,000 (approx.) Rs.13,53,825/-
Sarla Misra and Virender Prasad Misra D-3/36 1200 sq.ft.
16,98,000 (approx..) Rs.9,02,550/-
11. From the above table, it is clear that even the total consideration of all the three flats does not reach to a total of Rs.1 Crore, hence even in the light of the decision of the larger bench of this Commission in Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra), I do not find any merit in the argument of the appellant that State Commission did not have the pecuniary jurisdiction to decide the complaint in question.
12. Clearly no application under Section 12(1)(c) of Consumer Protection Act, 1986 was moved by the complainant for allowing a joint complaint hence, joint complaint was not maintainable and in fact, this is not a joint complaint as the same has been filed only by one complainant i.e. respondent No.1. Another important question raised by the appellant is that the complaint has not been signed by any of the remaining three complainants, but has been signed only by V.P.Misra. Thus, complaint relating to other complainants like Bhanu Pratap Misra, Sarla Misra and Praveen Misra cannot be considered. I find force in the arguments, however, it is seen that V.P.Misra is one of the purchasers in two flats No.A-1/33 & D-3/36 along with his daughter and his wife respectively. As per Order II Rule 2 (1) of the CPC, it is provided that the suit (complaint in this case) has to include the whole claim of the plaintiff/complainant. Order II Rule 2 (1) reads as follows:-
2(1). Suit to include the whole claim -(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
13. From the above provision, it is clear that V.P.Misra was entitled to file complaint in respect of his whole claim for flats No.A-1/33 & D-3/36. Clearly the co-purchasers are daughter and wife and even after passing of the order of the State Commission they have not objected to the impugned order, therefore, it would be deemed that they had consented for filing the present complaint. During the pendency of the revision petition the respondents Nos.2,3 & 4 have filed separate affidavits stating that the complaint before the State Commission was filed with their consent and they have authorised V.P.Misra to receive the share of the amount of refund. One thing is clear from these affidavits that Praveen Misra and Sarla Misra both have accepted that the complaint was filed with their consent and even the refund can be taken by V.P.Misra, complainant/ respondent No.1 as he is joint owner of the property. Thus, there is no question of taking a view that co-purchasers of A- 1/33 and D-3/36 units where V.P.Misra is also a purchaser could have objected to the complaint before the State Commission. From this point of view, the order passed by the State Commission in respect of Unit No.A-1/33 and D-3/36 in favour of V.P.Misra does not seem to suffer from any lacunae.
14. On the other hand, it is seen that the order of the State Commission in respect of unit No.A-1/34, which was booked in the name of Sarla Misra and Bhanu Pratap Misra is not legally tenable as the complainant V.P.Misra is not a co-purchaser in this unit. V.P.Misra was not authorised to file complaint on behalf of respondent Nos.2 & 3 in respect of the unit A-1/34 which was not in his name. It is true that Section 99 of the CPC does not allow modification or reversal of a decree in appeal on the ground of misjoinder or non-joinder of parties. But this Section also provides in the proviso that this section shall not apply in case of non-joinder of a necessary party. Clearly for unit A-1/34, respondent Nos.2 & 3 were the necessary parties as they had booked this unit, hence inspite of Section 99 of the CPC, it is difficult to uphold the order of the State Commission for unit No.A-1/34.
15. Based on the above discussion, the order dated 14.02.2017 of the State Commission is modified to the extent that the appellant/opposite party shall be liable to pay Rs.22,56,375/- with interest @ 6% p.a. to the complainant V.P.Misra instead of amount of Rs.36,10,200/- as mentioned in the State Commission's order. The appellant/opposite party is directed to refund amount of Rs.22,56,375/- (rupees twenty two lakhs fifty six thousand three hundred seventy five only) alongwith 6% p.a. interest as ordered within a period of 45 days, failing which, appellant would be liable to pay additional interest of 6% p.a. from the date of this order till actual payment. Liberty is granted to respondent No.2 Sarla Misra & respondent No.3 Bhanu Pratap Misra to file complaint before the appropriate forum in respect of their unit No.A-1/34. No order as to costs.
16. The First Appeal No.1098 of 2017 stands disposed of in the above terms.
...................... PREM NARAIN PRESIDING MEMBER