SANJAY KUMAR BARANWAL & ORS. vs SELENE CONSTRUCTIONS LTD.

By this order we propose to dispose of RA/196/2016 filed on behalf of the complainants.

Briefly stated facts relevant for the disposal of the review application are that Sanjay Kumar Baranwal and his wife Bhawna Kumari, Chander Prabha and her son Arun Choudhary and Smt. Anuradha Lal had entered into a builder buyer agreement with the opposite party. Being aggrieved of delay in delivery of possession, increase in super area, change in basic cost of the flat etc., the above said set of complainants filed a joint complaint in this Commission. No application seeking permission under Section 12 (1) (c) of the Consumer Protection Act, 1986 to pursue the joint complaint was filed. However, a prayer in this regard was made in prayer clause A. The predecessor Bench without disposing the plea under Section 12 (1) (c) of the Act, issued notice to the opposite party and proceeded with the complaint. During the pendency of the complaint, complainant Chander Prabha took possession of the subject flat booked by her. Taking note of the aforesaid fact, vide proceedings dated 19.5.2016 the predecessor Bench took the view that since Chander Prabha had already taken possession of the flat, the cause of action in her favour was no more similar to the cause of action in favour of the other set of complainants. Accordingly, it was observed that even if the cases of other set of complainants are taken together, their claim was less than Rs.1 crore as such it was held that National Commission has no jurisdiction to deal with the matter. The complaint was accordingly rejected and complainants were given liberty to approach the State Commission.

Learned counsel for the complainants has submitted that the impugned order suffers from error apparent on the face of record because this Commission while passing order dated 19.5.2016 failed to appreciate that complainant Chander Prabha though had received the possession of the flat, had not withdrawn her claim and therefore the National Commission was wrong in excluding her claim for the purpose of pecuniary jurisdiction. We find some force in this contention. Be that as it may, this joint complaint has been filed by more than one complainants, therefore, Section 12 (1) (c) of the Act comes into play which reads as under: -

"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 recognised 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"

The Larger Bench of this Commission in the matter of Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd CC/97/2016 vide order dated 7.10.2016 has interpreted the scope of Section 12 (1) (c) of Act. Relevant observations of the Larger Bench are reproduced as under: -

" As held by the Hon''ble Supreme Court in Tamil Nadu Housing Board (supra), the interest of the persons on whose behalf the claim is brought must be common or they must have a common grievance which they seek to get addressed. 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."

In view of the aforesaid position of law settled by the Larger Bench, we have no option but to hold that this is not a fit case for grant of permission under Section 12 (1) (c) of the Act because the complainants in the instant case have sought personal reliefs and they have not filed a class action complaint seeking relief for other such similarly placed persons. As the permission under Section 12 (1) (c) of the Act cannot be granted, the complainants cannot be permitted to pursue the joint complaint. Complaint is therefore rejected.

Review application is disposed of making it clear that this order will not come in the way of the complainants to approach the consumer Fora having appropriate jurisdiction on the same cause of action.