KAWALJEET JAISWAL & 5 ORS. vs ADEL LANDMARKS LIMITED

The complainants have filed a common complaint in respect of respective plots booked by complainant nos.1 to 6 in their names for their residence in a plotted colony project named "Era Green World", Nuhu Road, Sector 8, District Palwal, being developed by OPs on the allegation of deficiency in service. Complainants have sought the following reliefs: i. Direct the OP to deliver legal possession of the plots to the complainants free of all encumbrances (including IFCI mortgage) along with required documents including service completion certificate and registered conveyance in favour of the complainants and to take all required steps pursuant to the foregoing and in the event for any reasons such legal possession cannot be delivered then OP be directed to refund the entire amount recovered from the complainant along with interest @24% per annum calculated from the date on which the amounts were recovered by OP till the date OP actually refunds the amount to each complainant;

ii. Direct the OP to pay compensation for delay in delivery of possession @ 18% PA compounded annually on the amounts paid by the complainants to OP from the due date of delivery of possession and to continue paying compensation in future on a monthly basis till the plots are legally delivered with Occupancy certificate and Registered Conveyance;

iii. Direct OP to pay a sum of Rs.5,00,000/- to each complainant as compensation for unfair trade practices for deceptive and unfair trade practices including illegal secret mortgage of plots to IFCI;

iv. Director OP to pay a sum of Rs.5,00,000/- to each complainant as compensation for mental harassment and anxiety;

v. Director OP to pay a sum of Rs.50,000/- to each complainant as compensation as reimbursement to legal expenses;

vi. Pass such other orders as this Hon''ble Commission deems fit in the interest of justice.

The complaint has been filed on behalf of more than one complainant and the complainants have sought permission to pursue the joint complaint vide IA No. 7304 of 2015, on the plea that the complainants have the same interest in the outcome of the consumer complaint.

We have heard the counsel for the complainants and perused the record. Section 12 (1) (c) of the Consumer Protection Act, 1986 reads as under: "12. 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) *****

(b) *****

(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".

On bare reading of the above provision it is clear that ordinarily a consumer complaint has to be filed by or on behalf of the aggrieved consumer. Section 12 (1) (c) is in the nature of exception which permits a class action to be initiated by one or more consumers provided necessary requirements of Section 12 (1) (c) are fulfilled. Those requirements are that, there should be numerous consumers having the same interest in the outcome of the consumer complaint, and also that the relief is also sought on behalf of other consumers so interested in the outcome of the complaint.

In the instant case, on perusal of the prayer clause it is clear that above noted complainants have sought personal reliefs for alleged deficiency in service on the part of the opposite parties and they have not sought any relief on behalf of other allottees who having same interest in the outcome of the consumer complaint. Therefore, in our considered view the requirements of Section 12 (1) (c) are not fulfilled in this case. The issue of interpretation and scope of Section 12 (1) (c) was considered by the larger bench of this Commission in a reference made in the case, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., in CC No.97 of 2016. The larger bench in its order dated 07-10-2016 has decided the above referred issued 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 "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."

A bare reading of the above makes it clear that unless the complaint has been filed in the nature of class action seeking relief for all the persons having community of interest in the outcome of the complaint the permission under Section 12 (1) (c) cannot be granted. As in the instant case, the requirements of Section 12 (1) (c) are not fulfilled we have no option but to dismiss the application to file a joint complaint and also to reject the complaint. The complaint is accordingly rejected with the observation that the complainants shall be at liberty to file either separate complaints on the same cause of action or they may resort to the class action if they so desire subject to the requirements of Section 12 (1) (c).