National Consumer Disputes Redressal
Shashi Kiran Pal & 7 Ors. vs M/S. Sunworld Residency Private Ltd. & 3 ... on 6 November, 2018
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 749 OF 2018 1. SHASHI KIRAN PAL & 7 ORS. ...........Complainant(s) Versus 1. M/S. SUNWORLD RESIDENCY PRIVATE LTD. & 3 ORS. 2. HDFC LTD. . 3. MR. KEWAL VERMA . ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : For the Complainants/Applicants : Mr. Shivram, Advocate For the Opp.Party : For the Opposite Party No.1 : N E M O
For the Opposite Party No.2 : Ms. Amrita Singh, Advocate
For the Opposite Party No.3 : Mr. Rudresh Jagdale and
Ms. Kanika Agnihotri, Advocate.
For the Opposite Party No.4 : Ms. Kashish Narang, Advocate
Dated : 06 Nov 2018 ORDER
IA/6205/2018 (Application U/S 12 (1) (C) for permission to file Joint Complaint)
1.In order to pursue Consumer Complaint No. 749 of 2018 as a class action, filed under Section 12(1)(c) read with Sections 21(a)(i) and 22 of the Consumer Protection Act, 1986 (for short "the Act"), for the benefit of entire class of Allottees of the project in question, having same interest and grievance, the Complainants have filed the present Application.
2. For proper adjudication on the maintainability of this Application, it is necessary to advert to the averments made by the Complainants in the Complaint and the reply, if any, thereto filed by the Opposite Parties.
3. The Complaint as class action, under Section 12(1)(c), has been filed by 08 (Eight) Complainants on their own behalf and that of other Allottees of "Sunworld Arista" (for short, "the Project") launched by the Opposite Party No.1, namely, M/s. Sunworld Residency Private Limited (for short the "Developer") at GH-1C, Sector-168, NOIDA Express Way, NOIDA, Uttar Pradesh. All the Complainants are represented by their Authorized Representative, namely, Mr. Shashi Kiran Pal, who is Complainant No.01 in this Complaint.
4. According to the Complainants, the Developer has entered into identical agreements to sell the flats with all the Complainants and similar tripartite agreements evidencing advancement of loan by the Financial Institutions (Opposite Party No. 2 and 3) and Bank (Opposite Party NO.4); the issue involved in their cases is similar, inasmuch physical possession of the apartments, booked by them, has not been handed over by the Developer within the committed period; and consequentially same reliefs, i.e. refund of the deposited amount and not to enforce and encash the pre Equated Monthly Instalments/Equated Monthly Instalments (for short, the "EMI") of the home loans from the Complainants, have been prayed for by all the Complainants and the Complaint is proposed to have been filed in a representative capacity under the aforesaid provision.
5. For the sake of convenience, the material facts, enumerated hereinafter, are taken from the case of Complainant No.1, namely, Mr. Shashi Kiran Pal.
6. In the year 2014-2015, the Developer through advertisements by way of brochure, banners, hoardings at prominent places and through Brokers as well as Banks, launched its housing Project and invited applications from the public for allotment of Apartments in its Project. In response to the Booking Application Form, vide allotment letter dated 12.12.2014, the Complainant No.1 was allotted Flat No. T 10/1001, 10th Floor, Tower-10 admeasuring Super Built Up Area of 615 sq ft. in the afore-said Project, by the Developer. Accordingly, an Apartment Allottees Agreement (for short, "the Agreement") was executed between the Developer and the Complainant No.1 on 12.12.2014 mentioning the details of apartment, payment Subvention plans etc. The Complainant No.1 paid a total sum of ₹42,97,176/- to the Developer as the Principal Amount, out of which ₹6,97,176/- was paid directly by him and ₹36,00,000/- was paid by the Opposite Party No.2, namely, Housing Development Finance Corporation Limited (hereinafter referred to as "HDFC") in terms of Tripartite Agreement dated 13.12.2014 executed among the Complainant No.1, Developer and the said HDFC for raising a loan towards payment of the sale/purchase of the residential apartment in the Project. Similar Tripartite Agreements were also executed by the other Complainants with other Bank/Financial institution, namely, India Bulls Housing Finance Ltd./Opposite Party No.3 (hereinafter referred to as "IBHF") and ICICI Bank Ltd./Opposite Party No.4 (hereinafter referred to as "ICICI" Bank). For ready reference the details of the Tripartite Agreements entered between the Complainants, Developer and the Financial Institutions/Bank are given below:-
Sl.
No. Name of Complainant Name of Developer Name of Financial Institution Bank Date of Tripartite Agreement Any separate Loan Agreement Amount of loan (in ₹)
1.
Mr. Shashi Kiran Pal Complainant No.1 M/s. Sunworld Residency Pvt. Pvt. Ltd.
HDFC 13.12.14 Yes, Page 81 of the paper book 36,00,000
2. Mr. Aniruddha Kumar Shukla Complainant No.2 M/s. Sunworld Residency Pvt. Pvt. Ltd.
IBHF 10.10.15 Yes, Loan Agreement dt.
22.09.2015 Page 123 of the paper book 1,00,00,000
3. Mr. Deepak Jain Complainant No.3 M/s. Sunworld Residency Pvt. Pvt. Ltd.
IBHF 10.10.2015 Yes, Loan Agreement dt.
07.08.2015 Page 173 of the paper book 99,00,000
4. Mr. Sudhir Mawa Complainant No.4 M/s. Sunworld Residency Pvt. Pvt. Ltd.
IBHF 10.10.15 Yes, Loan Agreement dt.
19.08.2015 Page 220 of the paper book 97,75,000
5. Mr. Mudit Agarwal Complainant No.5 M/s. Sunworld Residency Pvt. Pvt. Ltd.
ICICI Bank 24.03.15 Yes, Facility Agreement Page 274-75 of the paper book 98,00,000
6. Mr. Anjan Kumar Sinha Complainant No.6 M/s. Sunworld Residency Pvt. Pvt. Ltd.
HDFC 22.11.14 Yes, Page 329 of the paper book 36,00,000
7. Mr. Gurpreet Singh Tulsi Complainant No.7 M/s. Sunworld Residency Pvt. Pvt. Ltd.
ICICI Bank 10.08.2015 Yes, Facility Agreement Page 384 of the paper book 36,00,000
8. Mr. Manmeet Sigh Complainant No.8 M/s. Sunworld Residency Pvt. Pvt. Ltd.
ICICI Bank 07.07.15 Yes, Facility Agreement Page 449-50 of the paper book 36,00,000
7. The said Tripartite Agreements stipulated that the loan would be disbursed as per the stage of construction of the project and in case there was default on the part of the Borrower to repay the loan amount, the Developer was liable to refund the loan amount paid by the Bank to them. All the 08 Complainants except Complainant No.1, had also entered into identical Supplementary Agreements with the Developer after execution of the Flat Buyer's Agreement. In terms of the Clause 2 of the said Supplementary Agreement, Complainants were at liberty to exercise an option either to cancel the allotment on completion of 24 months from the date of disbursal of the Bank Loan amount or to retain the said apartment.
8. As per Clause 25 of the Agreement, the development/construction of the Apartment was to be completed by October 2016 with an extended period of six months as grace period due to the eventualities stipulated in Clause 26 of the Agreement. Since, the physical possession of the apartment was not offered within the stipulated time, the Complainant No.1 sought the refund of the principal amount paid by him. The other Complainants also exercising the option under clause 2 of the Supplementary Agreement, on completion of 24 months, gave a 30 days' advance written notice under clause 9 of the Supplementary Agreement to the Developer to cancel the allotment of flat and refund the amount paid by them. Once, the said option under clause 2 was exercised by the Allottees, the Developer was under an obligation to refund the entire booking amount and such additional amount as stipulated in the respective Supplementary Agreements. In case of delay in payment beyond 30 days, the Developer was to pay interest @ 18% p.a. for the delayed period. On receiving the notices from the Allottees for cancellation of the agreement and to refund the amount paid, the Developer wrote letters of different dates to them. By letter, dated 03.05.2017 written to the Complainant No.2 by the Developer, while admitting that there was some delay in construction of the apartments on the ground of challenges ranging from NGT, labour problems, shortage of raw material etc., an extension of the Agreement was sought for a further period of one year and the said Complainant was promised to be compensated by commercial arrangements made in the agreement. However, the said offer was rejected by the Complainants. It is alleged by the Complainants that; there is no possibility of the completion of the project in the near future and the allottees could not be expected to wait for possession indefinitely; on account of possession of the apartments not being handed over to them within the committed period despite the substantial amount of the consideration being paid, they are suffering on numerous grounds, inasmuch as they are enforced to pay EMIs for a flat which they had already cancelled under the Supplementary Agreement; in case of any default on the part of the allottees in making payment of any instalment, penal interest @ 18 to 24% under clause 17 of the Agreement, was to be charged from them from the due date of payment of instalment and as such, the Opposite Parties are also liable to refund the amount with 18% interest; the Banks and the Financial Institutions had violated the guidelines of the RBI circular dated 03.09.2013 by disbursing the loan amount to the Developer without adhering to the stages of the construction of the housing project and the they cannot be permitted to take advantage of its own wrong in encashing the EMIs of the Complainants.
9. In view of the aforesaid background, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties in not handing over the physical possession of the apartments in question within the committed period, which has caused immense pressure and financial burden on the Complainants, non-refunding of the amount paid by them and not adhering to the Construction Linked Payment Plan while disbursing the loan amount sanctioned to the Complainants, this Complaint has been filed in a representative capacity for benefit of the entire class of buyers. In the Complaint, the following reliefs have been prayed for:
(a) Allow this Complaint by directing the Opposite Party No.1 to refund to each of the persons/consumers allotted a Flat in the Project, namely, the "Sunworld Arista" situated at GH-1C, Sector 168, NOIDA Express Way, Noida, Uttar Pradesh, the principal amounts paid along with interest @ 18% p.a. calculated upon the principal amount of money paid from the respective dates;
(b) Pending disposal of this Complaint, direct the Opposite Parties not to take any coercive steps against the Complainants and all persons/consumers interested in the project on whose behalf and for whose benefit the present Complaint is filed including encashing or enforcing the pre EMI's/EMI's of the Complainants and the numerous consumers interested in the Project;
(c) Award compensation of ₹10 lacs for mental agony and harassment caused to each person/consumer allotted a Flat in the said project, for the delay in construction and offer of possession;
(d) Award costs of litigation quantified at ₹50,000/- to each person/consumer allotted a Flat in the said Project;
(e) Pass such other and further orders as may deem fit and proper in the facts and circumstances of the case.
10. In the Application, the Complainants/Applicants have submitted that they have a common/same interest in the Project. The terms and conditions of the agreements entered into between the parties, are identical and the grievance and reliefs claimed are also common to all. It is further stated that since the persons/consumers on whose benefit the present Complaint is being filed are located in various parts of India and also abroad, Mr. Shashi Kiran Pal, Complainant No.1, be permitted to act as the authorized representative on behalf of all the Complainants.
11. Vide order, dated 06.04.2018, a notice was directed to be issued to the Opposite Parties to show cause as to why the Complaint be not treated as class action, as stipulated under Section 12(1) (c) of the Act. On 09.07.2018, none was present on behalf of the Opposite Parties No.1 & 2 despite service of notice. Opposite Party No.3, IBHF was directed to file reply to the application filed u/s 12(1)(c) but they did not chose to file any reply. However, they have moved I.A.NO.13813 of 2018 u/s 151 CPC for vacation of a direction given by this Commission vide orders dated 09.07.2018 and 12.07.2018 restraining the banks from taking any coercive action against the Complainant. In the said application, it is, inter-alia, pleaded that; since the loan has been availed of by the Complainant No.2, 3 and 4 only from the applicant, the present Complaint u/s 12 (1)(c) as common class is not maintainable inasmuch as the individuals do not have common grievances and they cannot pray for common relief qua the applicant in violation of the judgment of this Hon'ble Commission in the case of Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. - I (2017) CPJ 1 (NC); an application u/s 12 (1)(c) can be filed where there are numerous consumers having the "same interest/grievance" against the "same person" and the application is filed on behalf of or for the benefit of all such numerous consumers, and seeking same relief for all of them; while the Complaint against the Developer, has been filed for not handing over the possession/refund of the amounts, in terms of the agreements executed thereof, the Complaint against the Bank/Financial Institutions, has been filed seeking restrain on recovery of loan amounts; there are three categories of the Complainants who are alleging deficiencies in service on the part of three categories of the Opposite Parties, i.e. Opposite Party No.1 & 2, Opposite Party No.1 & 3 and Opposite Party No. 1 & 4 and as such by no stretch of imagination, the present Complaint can be construed to be filed u/s 12(1) (c) on behalf of the Complainants having "common interest".
12. In its reply to the application u/s 12(1)(c), the Opposite Party No.2, HDFC, has contended that commonality of interest is the essential pre-condition for a Complaint to be maintained u/s 12 (1) (c). This Hon'ble Commission in the case of Ambrish Kumar Shukla (Supra) has held that the Complainant can be said to have 'same interest' when they have a 'common grievance' against a 'common service provider'. In the present Complaint, though the Developer, Opposite Party No.1, is the common service provider for all the Complainants, but with regard to prayer (b), the Complaint is not targeted against a common service provider. The Complainants have admittedly availed of loans from different Bank and financial Institutions. There is no commonality of interest between the borrowers of different banks/financial institutions whose relationships with their respective lender banks/financial institutions are governed by different and distinct loan agreements and in the absence of commonality of interest, the class action proceedings cannot be maintained. The non-execution of the Supplementary Agreement by all the Buyers, i.e. Complainant No.1, also establishes the absence of commonality of interest within the buyers which is necessary for filing the Complaint for a common relief. Since, the terms and conditions of the loan agreements would vary from one bank/financial institution to other, the same require to be examined individually in different Complaints and not as a class action.
13. We have heard the Learned Counsel for the Complainant No.1 and the Learned Counsel for the Opposite Party Nos. 2 to 4 on the maintainability of Complaint u/s 12(1)(c) of the Act and also perused the written submissions made by them.
14. The Learned Counsel for the Complainant submitted that all the Complainants as also all the Allottees of the Project of the Developer, have a common interest, a common grievance and prayed for a common relief and for that the present Complaint has to be treated as a class Complaint u/s 12(1)(c) of the Act. He further submitted that the Opposite Party Nos. 2 to 4, i.e, financial institutions as also the Bank, are acting in contravention of the Circular dated 03.09.2013 issued by the Reserve Bank of India (filed as Annexure C-9 at page 465-466 of the paper book) by which it has been specifically directed that disbursal of housing loans sanctioned to individuals should be closely linked to the stages of construction of the housing project/houses and upfront disbursal should not be made in case of incomplete/under-construction/green field housing projects, whereas they have disbursed the entire housing loans sanctioned by them in one go without waiting for the stage-wise construction of the Project. Reliance has been placed on a three Members' decision of this Commission in the case of Ambrish Kumar Shukla (supra).
15. The Learned Counsels for the Opposite Party Nos. 2 to 4 submitted that even though the Complainants may be having a common grievance against the Opposite Party No.1 and prayed the same relief against the Opposite Party No.1, a class action Complaint may be maintainable as against the Opposite Party No.1, but as the Complainants have taken housing loans from different financial institutions and Bank, the Complainants cannot have a common grievance against the Opposite Party Nos. 2 to 4. Even otherwise, no allegations have been made against the Opposite Party Nos. 2 to 4 as no relief has been claimed against them except to relief no. (b) which only seeks a direction, not to take any coercive steps pending disposal of this Complaint including encashing or enforcing of pre EMI's/EMI's of the Complainants. They submitted that in view of the principles laid down in the case of Ambrish Kumar Shukla (Supra), the class action Complaint is not maintainable against the Opposite Party Nos. 2 to 4 and the same is liable to be dismissed. 16. For a proper adjudication of the issue involved in the present Complaint/ Application u/s 12(1)(c) of the Act, it would be appropriate to reproduce Sections 12(1) and 13(6) of the Act, Order I Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC 1908") and also the Circular dated 03.09.2013 issued by the Reserve Bank of India:-
" Section 12(1) Manner in which Complaint shall be made:-
(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:-
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(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; or (emphasis supplied)
(d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.
Section 13(6) Procedure on admission of Complaint:-
(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.
Order I of Rule 8 of the Code of Civil Procedure 1908:-
8. One person may sue or defend on behalf of all in same interest.-
(1) Where there are numerous persons having the same interest in one suit,--
(a) one or more of such persons may, with the permission of the court, sue or 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.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiff's expenses notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be."
"Explanation:- For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be."
" Reserve Bank of India RBI/2013-14/17 September 3, 2013 DBOD.BP.BC.No.51/08.12.015/2013-2014 All Scheduled Commercial Banks (excluding RRBs) Dear Sir,
Housing Sector: Innovative Housing Loan Products - Upfront disbursal of housing loans It has been observed that some banks have introduced certain innovative Housing Loan Schemes in association with developers/builders, e.g. upfront disbursal of sanctioned individual housing loans to the builders without linking the disbursals to various stages of construction of housing project, interest/EMI on the housing loan availed of by the individual borrower being serviced by the builders during the construction period/ specified period, etc. This might include signing of tripartite agreements between the bank, the builder and the buyer of the housing unit. These loan products are popularly known by various names like 80:20, 75:25 Schemes.
2. Such housing loan products are likely to expose the banks as well as their home loan borrowers to additional risks e.g. in case of disputes between individual borrowers and developers/builders, default/delayed payment of interest/ EMI by the developer/builder during the agreed period on behalf of the borrower, non-completion of the project on time, etc. Further, any delayed payments by developers/builders on behalf of individual borrowers to banks may lead to lower credit rating/scoring of such borrowers by credit information companies (CICs) as information about servicing of loans gets passed on to the CICs on a regular basis. In cases where bank loans are also disbursed upfront on behalf of their individual borrowers in a lump-sum to builders/ developers without any linkage to stages of construction, banks run disproportionately higher exposures with concomitant risks of diversion of funds.
3. In view of the higher risks associated with such lump-sum disbursal of sanctioned housing loans and customer suitability issues, banks are advised that disbursal of housing loans sanctioned to individuals should be closely linked to the stages of construction of the housing project/houses and upfront disbursal should not be made in cases of incomplete/under-construction/green field housing projects. (Emphasis supplied)
4. It is emphasized that banks while introducing any kind of product should take into account the customer suitability and appropriateness issues and also ensure that the borrowers/customers are made fully aware of the risks and liabilities under such products.
Yours faithfully Sd/-
(Rajesh Verma) Chief General Manager"
17. From a perusal of the aforesaid provisions, we find that if one or more consumers, where there are numerous consumers, have the same interest, a class action Complaint can be filed on behalf of, or for the benefit of, all consumers so interested. The provisions of Order I Rule 8 CPC 1908, have been made applicable by Section 13(6) of the Act. Rule 8 of Order I CPC 1908, permits filing a suit/defend a suit by one person where there are numerous persons having the same interest in one suit. Explanation to Order I Rule 8 CPC 2008, provides that for determining as to whether the persons who sue or defend, have the same interest in one suit, it is not necessary to establish that such persons have same cause of action as the case may be.
18. The provisions of Order I Rule 8 CPC 1908, came up for consideration before the Hon'ble Supreme Court in the case of Chairman, Tamil Nadu Housing Board, Madras Vs. T.N. Ganapathy - (1990) 1 SCC 608 and the Hon'ble Supreme Court held as under:-
" The provisions of Order I of Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar v. Velandi Goundar, a Full Bench of the Madras High Court observed that on the plain language of Order I Rule 8, the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted. The court, while considering whether leave under the rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction as the present one.
Xxxxxxxxxxxx
9. It is true that each of the allottees is interested individually in fighting out the demand separately made or going to be made on him and, thus, separate causes of action arise in the case, but, that does not make Order I Rule 8 inapplicable. Earlier there was some doubt about the rule covering such a case which now stands clarified by the Explanation introduced by the Code of Civil Procedure (Amendment) Act, 1976, which reads as follows:-
"Explanation --For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be."
The objects and reasons for the amendment were stated below:
"Objects and Reasons: Clause 55; sub-clause (iv),--Rule 8 of Order I deals with representative suits. Under this rule, where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the court, sue or be sued, on behalf of all of them. The rule has created a doubt as to whether the party representing others should have the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action."
There is, therefore, no doubt that the persons who may be represented in a suit under Order I, Rule 8 need not have the same cause of action."
19. In the case of Ambrish Kumar Shukla (Supra), this Commission has held that:-
" The defect or deficiency in the goods purchased, or the services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the Complaint is filed. Therefore, the oneness of the interest is akin to a common grievance against the same person. If, for instance, a number of flats or plots in a project are sold by a builder/developer to a number of persons, he fails to deliver possession of the said flats/plots within the time frame promised by him, and a Complaint is filed by one or more such persons, either seeking delivery of possession of flats/ plots purchased by them and other purchasers in the said project, or refund of the money paid by them and the other purchasers to the developer/builder is sought, the grievance of such persons being common i.e. the failure of the builder/developer to deliver timely possession of the flats/plots sold to them, they would have same interest in the subject matter of the Complaint and sufficient community of interest to justify the adoption of the procedure prescribed in Order 1 Rule 8 of the Code of Civil Procedure, provided that the Complaint is filed on behalf of or for the benefit of all the persons having a common grievance against the same developer/builder, and identical relief is sought for all such consumers.
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."
20. It is not in dispute that out of the 8 Complainants who have filed the present Complaint, Complainant No.1 and 6 have taken housing loan from HDFC, Complainant Nos. 2 to 4 have taken housing loan from IBHF and whereas Complainant Nos. 5, 7 & 8 have taken housing loan from ICICI Bank. All the Complainants have executed separate Loan Agreements except Complainant Nos. 5, 7 & 8 who have executed Facility Agreement. The terms and conditions of the Loan Agreements and the Facility Agreements have not been placed on record. The Circular, dated 03.09.2013 issued by the Reserve Bank of India, as extracted above, only directs the Bank and not the financial institutions like HDFC and IBHF and, therefore, the financial institutions cannot be said to be bound by the said Circular which is the foundation for claiming relief (b) by the Complainants which is by way of an interim protection/relief till the disposal of the Complaint. Even otherwise, we find that a very vague allegation has been made by the Complainants in paragraph 29 of the Complaint regarding the applicability of the aforesaid Circular. Even though, the Complainants may have a community of interest and a common grievance and may have claimed similar reliefs as against the Opposite Party No.1, but the reliefs claimed as against the Opposite Party Nos. 2 to 4, are not common or similar to all the Complainants and other allottees which will depend upon the facts of each case. Therefore, the present Complaint against Opposite Party Nos. 2 to 4 cannot be permitted as a class action Complaint.
21. During the course of hearing, a suggestion was given to the Learned Counsel for the Complainant to restrict the Complaint to anyone of the financial institutions or Bank, as the Complainants may desire, but the suggestion was not accepted on the instructions received from the Complainants.
22. In view of the foregoing discussions, we do not find any merit in the I.A.No.6205 of 2018 filed u/s 12(1)(c) of the Act seeking permission to file a joint Complaint and it is rejected accordingly. Consequently, the Complaint is also dismissed as not maintainable.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER