SUDHANSHU JAYASWAL & ORS. vs M/S. RPS INFRASTRUCTURE LTD.

The instant complaint has been filed by 16 complainants who have agreed to purchase the flats from the opposite party/ developer by booking specific flats out of whom 8-16 persons who have agreed to repurchase the flats/ units from the original buyers of the opposite party by paying the consideration. The complaint has been filed on the allegation of various deficiencies allegedly committed by the opposite party. The prayer clause of the complainant reads as under: a. Direct the opposite party to give the possession of the proposed fully furnished flats/ units within the stipulated period as specified in the agreement;

b. Direct the opposite party to pay the damages as claimed in the foregoing paragraphs and the compensation chart annexure A 4 and consequential benefits thereof;

c. Direct the opposite party to bear the cost incurred for the legal proceeding;

d. Direct the opposite party to allow the site visit to inspect work progress and quality of the material used in the construction of project;

e. Pass any other order or orders, as this Hon''ble Court may deem fit and proper in the facts and circumstances of the case .

As the complaint has been filed by more than one consumer allegedly having similar interest, an application under section 12 (1) ( c) being IA No. 5694 of 2016, seeking permission to pursue the joint complaint has been filed.

We have heard the learned counsel for the parties. Counsel for the complainants have submitted that this is a fit case for grant of permission under section 12 (1) ( c), because, a perusal of prayer clause would show that all the 16 complainants are having same interest in the outcome of the complaint. It is argued that if permission is granted, the other consumers so interested in the outcome of this complaint can only be served by issuing publication.

We do not subscribe the above contention of counsel. Section 12 (1) (c ) of the Act is a specific provision which permits filing of class action complaint by more than one consumers provided they have the same interest in the outcome of the complaint and the requirement of section 12 (1) ( c ) are fulfilled. There was difference of opinion between various benches of this Commission regarding interpretation and scope of Section 12 (1) (c ). Accordingly, the matter was referred to a Larger bench. The Larger Bench comprising of three members of this Commission in CC No. 97 of 2016 titled Ambrish Kumar Shukla and 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd. vide order dated 07.10.2016 have answered the reference pertaining to the aforesaid question 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."

On a bare reading of the above, it is clear that permission under section 12 (1) (c ) cannot be granted to one or more consumers unless they have filed a class action complaint seeking relief not only for themselves but various other similarly placed consumers who may be having same interest in the outcome of the complaint. In the instant case, on reading of the prayer clause, it is obvious that complaint has been filed seeking relief only for 16 consumers who have joined hands. Therefore, it is obvious that it is not a class action complaint.

In order to meet the requirement of the order of the larger Bench, the counsel for the complainant has subsequently filed an IA no. 5695 of 2016 which is an application on behalf of complainants under order 1 rule 8 (1) (a) read with Section 151 CPC for pursuing the present complaint in a representative capacity. In the instant application it has been mentioned that the complaint entails various unfair trade practices and deficiency of service adopted by the opposite party which have adversely impacted all the complainants and other allottees of their respective flats being constructed in a residential project of the opposite party. It is submitted that the complainants are allottees of the same society being built by the opposite party and are aggrieved by such unfair trade practice of the opposite party which are common to all and therefore, have commonality of interest in the present complaint. It is further stated that the issues and grievances raised in the complaint are common to all the allottees of the said Society.

In view of the above, prayer has been made to seek leave of the Hon''ble Commission to pursue the present complaint in a representative capacity for the benefit of all the allottees of the flat in the said society under the name and style of M/s R P S Savana.

The opposite party in their reply have stated that the project in question comprises of approximately 2400 main dwelling units out of which approximately 1550 allottees have already taken possession of their respective units and further approximately 300 allottees have been offered possession. In fact out of the initial 16 complainants, six complainants have already taken possession and have withdrawn the complaints and one had already transferred his rights of allotment in favour of a third party. The other seven complainants have been offered possession on different dates from 06.08.2013 but they have opted not to take the possession and the remaining two complainants have been offered alternative units, however, they have declined. Thus, it cannot be said that the allottes of the project have a commonality of interest and grievances against the opposite party.

We have heard the counsel for the complainants and have also gone through the complaint. Complainants have failed to establish that all the allottees of the present project of the OP - M/s R P S Savana situated at Sector 88, Faridabad are aggrieved by the alleged unfair trade practice adopted by the opposite party has adversely impacted all the complainants as also the other allottees, as mentioned in the complaint as also IA no. 5695 of 2016 merely changing the complaint and prayer to state that the complaint has been filed "for the benefit of all members/ allottees who have been allotted their flats in the project by name and style of ''Savana'' in Sector 88, Faridabad" without establishing the commonality of interest as also common issues and grievances does not justify allowing the amendment of the complaint as a class suit. As such, in view of categoric finding of the Larger Bench, permission under section 12 (1) ( c) cannot be granted. Hence, IA No. 5695 of 2016 is accordingly dismissed. As a consequence, instant complaint filed by more than one consumer is also rejected as not maintainable. It is, however, made clear that this order will not come in the way of the complainants in availing of their legal remedy by approaching appropriate forum on the same cause of action.