National Consumer Disputes Redressal
Usha Rani Atree & 5 Ors. vs Earth Infrastructures Ltd. on 16 August, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 902 OF 2017 1. USHA RANI ATREE & 5 ORS. Flat No. 6, Tower - A, 461, Masjid Moth, New Delhi - 110 049. 2. Ms. Vanya Atree Flat No. 6, Tower -A, 461, Masjid Moth, New Delhi - 110 049. 3. Ms. Devika Atree Flat NO. 6, Tower - A, 461, Masjid Moth, New Delhi - 110 049 4. Mr. Kanishk Atree Flat No. 6, Tower - A, 461, Masjid Moth, New Delhi - 110 049. 5. Monica Saxena B/5-111, Safdarjung Enclave, New Delhi - 110 029. 6. Radhika Saxena B/5-111, Safdarjung Enclave, New Delhi - 110 029. ...........Complainant(s) Versus 1. EARTH INFRASTRUCTURES LTD. A-1, C & D, Sector - 16, Near Metro Station, Noida U.P. 2. . . . 3. . . . 4. . . . 5. . . . 6. . . . ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER
For the Complainant : Ms.Arpita, Advocate For the Opp.Party : Dated : 16 Aug 2017 ORDER
The instant complaint has been filed by Ms. Usha Rani Atree and five others on the allegations of deficiency in service on the part of the opposite party developer in respect of commercial office spaces booked by the complainants vide separate Memorandum of Understanding. All the complainants have alleged that they had booked the commercial spaces in development project with the intention of using the spaces for earning livelihood by way of self employment.
2. Alongwith complaint, the complainants have filed application under section 12 (1) (c ) of the Consumer Protection Act, 1986 ( in short, the Act) seeking permission to pursue the complaint jointly.
3. We have heard learned counsel for the complainants on application under section 12 (1) ( c) of the Act as also the admission of the complaint.
4. Because of difference of opinion amongst the Coordinate Benches of this Commission, the issue pertaining to interpretation and scope of Section 12 (1) ( c) of the Act was referred by the Hon'ble President to the Larger Bench ( three Members Bench of this Commission) in the matter of Ambrish Kumar Shukla and 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., CC No. 97 of 2016. The larger Bench vide its order dated 07.10.2016 in the said case has decided the said issue as under:
"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."
5. The rational behind the above finding of the Larger Bench is evident from the following observations in the above noted judgment.
"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 "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.
6. On reading of the above, it is clear that complaint under section 12 (1) ( c) of the Act can be filed by one or more complainants on behalf of or for the benefit of all the consumers having common interest or common grievance provided they are seeking same and identical relief against the opposite party.
7. On careful perusal of the complaint, we find that complaint suffers from misjoinder of parties and causes of action. Undisputedly, the complaint has been filed on the allegations of deficiency in service. Section 2 (1) (d) (ii) of the Act defines the term "consumer" as under:
"consumer" means any person who :
hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment"
8. On reading of the above, it is clear that person who hires or avails of services of someone for consideration for commercial purpose is excluded from the definition of consumer. On reading of the complaint, we find that complainants are seeking to bring their case within the Explanation to Section 2 (1) (d) of the Act by alleging that they had booked the specific commercial spaces with the object of utilizing the same exclusively for the purpose of earning livelihood by means of self employment. It cannot be disputed that complainants in order to bring their respective case within the four corners of the Explanation, each of the complainant will have to lead evidence to show that specific commercial spaces booked by them were booked with an intention to use said spaces for earning livelihood by means of self employment. Thus, it is evident that this is a clear case of misjoinder of parties and causes of action. In the light of above discussion, we do not find it a fit case for grant of permission under section 12 (1) (c) of the Act to pursue common complaint jointly. The application under section 12 (1) (c) of the Act is accordingly dismissed and the complaint is rejected as not maintainable. It is, however, clarified that rejection of complaint would not come in the way of the complainants to avail of their remedies by approaching the appropriate forum on the same cause of action.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER