Raginee Mishka and others vs Nirala Infratech Pvt. Ltd.

Ms. Raginee Mishra and 15 others have filed the instant consumer complaint on the plea that the respective complainants booked residential flats in the development project located at GH-04, Tech Zone-IV, Greater Noida undertaken by the opposite party. It is the case of the complainants that the opposite party despite of having received substantial amount against the consideration agreed between the parties has failed to deliver the possession along with completion certificate and other relevant documents. The prayer made in the complaint is reproduced as under: (a) Direct the opposite patty to handover the possession of flats NE/T2-705, NE/T3-703, NE/T3-702, NF/TIO-302, NE/T4-605, NE/3-603, NE/T17-1406, NE/T2-704 and NE/T1-702 situated at Nirala Estate, GH-04, Tech Zone-IV, Greater Noida complete in all respects and in conformity with the allotment letter and brochure and for the consideration mentioned therein, with all additional facilities and as per quality standards promised, after obtaining all necessary Government approvals and execute all the necessary and required documents in respect of the said flat in favour of the complainants. (b) Direct the opposite parry not to make any claim for additional charges for the alleged increased area of the flat allotted to the complainants; (c) Direct the opposite party not to claim interest from the complainants as mentioned in their offer of possession letter, or/and (d) Direct the opposite party not to charge amount under category of farmer compensation; and/or (e) Direct the opposite party to pay Rs. 1,79,28,000 (one crore seventy nine lakh twenty eight thousands) to the complainants for delay in handing over the possession of the flat to the complainants; (f) Award compensation of Rs. 25.00.000 (twenty five lakh) to the complainants for poor quality of construction that has been rendered the flat inhabitable; (g) Award compensation of Rs. 10.00.000 (Ten lakh) to the complainants for mental pain and agony suffered by the complainants due to the actions of the opposite party and proper occupancy certificate in place after execution of maintenance agreement in this regard; or/and (h) Direct the opposite party to charge and collect maintenance charge from all the complainants only upon delivery of possession by fulfilling all statutory requirement of their respective flat with; (i) Award cost; and/or (j) Pass such other or further order(s) as this Hon''ble Forum deems fit and proper in the facts and circumstances of the case." 2. One of the prayers is that permission under Section 12(1)(c) of the Consumer Protection Act, 1986 to jointly proceed with the complaint be granted. 3. We have heard learned Counsel for the complainants. 4. As there was conflicting views in the Commission regarding the interpretation and scope of Section 12(l)(c) of the Act, the matter was referred by the Hon''ble President to a Larger Bench in Consumer Case No. 97 of 2016 titled Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC), 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(l)(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(i)(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." 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(l)(c) of the Act. Permission is accordingly declined as 16 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. 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. Complaint dismissed.