M. SHREESHA, MEMBER

Aggrieved by a common order dated 19.12.2017, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short the State Commission) in Interlocutory/Miscellaneous  Applications in/and Complaint Cases No. 45 – 52, 54 of 2017 and 328 – 332, 440 – 444 of 2016, the Complainants have preferred these Appeals under Section 19 of the Consumer Protection Act, 1986 (for short the Act).  By the impugned order, the State Commission has dismissed the Complaints, 19 in number, observing as follows:      

          “The materials on record indicate that the complainants have not filed any application for leave of the Commission to file the complaint in a representative capacity in accordance with the provisions of 13(6) of the Act.  It should be noted here that the out of 690 flat owners, only 20 flat owners have lodged the complaint by themselves.

          Under the garb of Section 12(1)(c) or Section 13(c) of the Act which are primarily meant for common services, e.g. deficiency in maintaining common areas or common facilities, complaint regarding goods are not maintainable before this Commission particularly, when the flats were booked for different amount on different dates under different terms and conditions.  If complaint pertaining to deficiency in goods pertaining to many complaints is allowed in one complaint, it will create serious problem as observed by a Larger Bench of Hon’ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. (supra).

          Now, the question comes up for consideration where causes of actions are united, whether the pecuniary jurisdiction shall depend upon value of aggregate value of the flats of the complex or not.  The complainants in their petition of complaint have averred that they themselves entered into agreement or obtained allotment letter from OP No.1 by themselves and the causes of action are quite separate.  In order to understand the issue, it would be profitable to have a look to the provisions of Order 2 Rule 3 of Civil Procedure Code which provides –

“3.      Joinder of cause of action – (1) Save as otherwise provided, a plaintiff may unit in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants joinly may unit such causes of action in the same suit;

          2.       Where causes of action are united, the jurisdiction of the Court as regards the suits shall depend on the amount or the value of the aggregate subject-matters as the date of instituting the suit”.

          From the above provision, it will be quite clear that the complainants were within their rights to unite the cause of action in respect of all the flat owners.  It is also made clear that where the causes of action are united, the pecuniary jurisdiction shall depend upon the value of the aggregate subject matter at the date of institution of the proceeding.  In the case of Ambrish Kumar Shukla & 21 Ors. (supra) it has been laid down that it is the value of the goods or services and compensation claimed which determines the pecuniary jurisdiction of the Consumer Forum.  In the said decision the Larger Bench of the Commission has observed – “...  since a complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only there are numerous consumers having the same interest and it has to be filed on behalf of or for the benefit of all the consumers so interested i.e. all the numerous consumers having the same interest, it is the aggregate of the value of the goods purchased or services hired or availed of, by all those numerous consumers and the total compensation, if any claimed for all those numerous consumers, which would determine the pecuniary jurisdiction of the Commission”.

          The provisions of Section 17(1)(a)(i) of the Act deals with the pecuniary jurisdiction of the State Commission, which provides –

          “17.    Jurisdiction of the State Commission. –

1. Subject to the other provisions of this Act, the State Commission shall have jurisdiction

2. to entertain –

3. complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore ...”.

Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz. - (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction.  If any Court or Forum passes any order without any competence, the said order would be a nullity.  It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceedings.  In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi – vs. – D.L.F. Universal Ltd. & Anr.) the Hon’ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.

Considering all the above in view of the provisions of Sections 12(1)(c) and Section 17(1) of the Act and the authority referred above, I am constrained to hold that the complaint being not maintainable3 in this form, is liable to be rejected.

In view of the above, the MA/235/2017 of this case along with MA/236/2017 in CC/329/2016, MA/237/2017 in CC/330/2016, MA/238/2017 in CC/331/2016, MA/239/2017 in CC/332/2016, MA/240/2017 in CC/333/2016, MA/399/2017 in CC/440/2016, MA/400/2017 in CC/441/2016, MA/401/2017 in CC/442/2016, MA/402/2017 in CC/443/2016, MA/403/2017 in CC/444/2016, IA/66/2017 in CC/45/2017, IA/67/2017 in CC/46/2017, IA/68/2017 in CC/47/2017, IA/69/2017 in CC/48/2017, IA/70/2017 in CC/49/2017, IA/71/2017 in CC/50/2017, IA/72/2017 in CC/51/2017, IA/73/2017 in CC/52/2017 and IA/74/2017 in CC/54/2017 are, thus, allowed on contest.  There will be, however, no order as to costs.

Consequently, the complaints are rejected.  However, this order will not debar the complainants to approach the appropriate Forum in accordance with law.”  

Learned Counsel for the Appellants submitted that Respondent No.1, namely, Central Government Employees Welfare Housing Organisation (CGEWHO), chose to challenge the maintainability of the Complaints vide IA No. 66 of 2017 in Complaint Case No. 45 of 2017 and similar applications in other Complaint Cases, for which written objections were also filed by the Complainants. The grounds raised by CGEWHO in the said applications were with respect to Arbitration Clause; that it was a no profit no loss body; that the suit value was inflated; and lack of jurisdiction.  He contended that the State Commission, based on the submission of CGEWHO that if the total value of all the flats was taken together, the State Commission did not have the pecuniary jurisdiction, wrongly relied upon the case of Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1, and dismissed the Complaints.  He further submitted that all the Complaints were filed in an individual capacity against CGEWHO and the Construction Company, namely, M/s P.S. Group Reality Ltd., arrayed as Opposite Parties No. 1 and 2 in the original Complaints, on the ground of deficiency in service on their part in not executing and registering proper deed of conveyance and not providing all the common facilities and amenities etc.  He submitted that though most of the reliefs prayed for were common in nature, the Complainants chose to file individual complaints and not as a class action suit under Section 12(1)(c) of the Act.

Learned Counsel appearing for Respondents contended that since the interest was common and the prayer was also common, the State Commission was right in dismissing the Complaints on the ground that no application under Section 12(1)(c) of the Act was filed and also on the ground of pecuniary jurisdiction.

Respondent No.2 also filed its written submissions.

For better understanding of the case, Section 12(1)(c) of the Act is reproduced as hereunder:

“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”

It is seen from the record that the State Commission has observed that the Complainants have not filed any application for leave of the Commission to file the Complaint in a representative capacity in accordance with provisions of Section 13(6) of the Act.

The provisions under Section 12(1)(c) cannot replace the provisions of Section 12(1)(a), as both these provisions are quite mutually co-extensive and are optional.  If an individual Complainant exercises his/her choice to file a Consumer Complaint, being a Complainant, defined under Section 2(1)(b)(i) of the Act, he cannot be forced to file a Consumer Complaint by way of a class action suit under Section 12(1)(c) of the Act.

The decision of the Larger Bench of this Commission in Ambrish Kumar Shukla (supra) does not prevent the Complainants who want to approach the Consumer Fora by filing their respective individual Complaints.  In fact, while dealing with Issue No. (vii) in Para No.14 of the said case, the Larger Bench has observed as follows:

“However, as far as the individual complaints instituted prior to grant of the requisite permission under Section 12(1)(c) of the Consumer Protection Act is concerned, they having been validly instituted, such complainants cannot be compelled to withdraw their individual complaint and become a party to the subsequently instituted complaint filed in a representative capacity. They having already taken recourse to the legal proceedings, the complaint instituted in a representative capacity, will not be deemed to have been instituted on behalf of or for the benefit of such complainants even if their grievance is identical to the grievance expressed in the complaint instituted in a representative character.  They having already approached the Consumer Forum for the redressal of their grievance, it would be difficult to say that the complaint filed in a representative character was intended on their behalf or for their benefit as well.  In fact, there may be a consumer having an identical grievance, who has already approached the Consumer Forum by way of an individual complaint and whose complaint has already been adjudicated before the requisite permission under Section 12(1)(c) of the Consumer Protection Act is accorded in a complaint filed in a representative capacity.  Since, there cannot be more than one adjudication in respect of the same grievance of the same person, it cannot be said that the complaint instituted in a representative capacity was filed on his behalf or for his benefit as well. Therefore, the consumers, who are already before the Consumer Forum when the requisite permission, in terms of Section 12(1)(c) of the Consumer Protection Act is accorded, will be out of the purview of the said complaint.  Since it cannot be said that the complaint in the representative capacity was filed on their behalf or for their benefit as well, the order passed in such a complaint will not be binding on them.  If however, such persons want to withdraw their pending complaints and join the complaint instituted in the representative capacity, there is no bar on their adopting such a course of action. The decision, of course, would rest with them whether to continue with the individual complaint already instituted by them or to withdraw the said complaint and become party to the complaint filed in a representative capacity.

          In one of the written submissions, it is contended that since a complaint in a representative capacity can be filed only on behalf of all the consumer having the same interest, such a complaint will not be maintainable where one or more individual complaints, expressing such a grievance are already pending.  We however, are unable to accept the contention.  No such restriction finds place in Section 12(1)(c) of the Consumer Protection Act or in Order I Rule 8 of the Code of Civil Procedure.   Accepting such a contention would defeat the very purpose of allowing such a suit/complaint since every consumer would be compelled to file an individual complaint leading to multiplicity of proceedings.  Such an interpretation would not serve the cause either of the consumer or of the service provider.”

From the afore-noted judgment, it is clear that individual Complaints instituted before grant of the requisite permission under Section 12(1)(c) of the Act can continue, despite grant of the said permission.  It would also be open to such Complainants to withdraw their individual Complaints and join as parties to the Complaint instituted in a representative capacity.  The principles laid down in the aforesaid case squarely applies as none of the purchasers of Kendriya Vihar Phase-II has instituted or made an application for grant of requisite permission to file a class action suit under Section 12(1)(c).  Therefore, the question of the individual Complainants either joining a class action suit or preferring an application to institute a class action suit does not arise.  There are 19 separate causes of action and the pecuniary jurisdiction of each Complaint shall be considered independently.  It is seen from the record that each Complainant has duly mentioned the value of the flat and the damages and other monetary reliefs in the prayer portion of the Complaint, which, when added, does not cross the threshold limit of Rs.1.00 Crore and, hence, the State Commission has the pecuniary jurisdiction to entertain the Complaints. 

At the cost of repetition, it may be stated that in case any Complaint is already admitted under Section 12(1)(c) of the Act, only then individual Complaints of the same project, praying for the same reliefs, cannot be entertained.

For all the afore-noted reasons, we are of the considered view that the Complainants have exercised their choice of filing the Complaints as individual Complaints under Section 12(1)(a) and not as a class action suit under Section 12(1)(c) and, therefore, there was no necessity to seek leave of the Commission or obtain permission for filing Complaint under Section 12(1)(c) of the Act.  Hence, we are of the view that the State Commission has not correctly applied the ratio decided by the Three Member Bench of this Commission in the case of Ambrish Kumar Shukla (supra).

In this view of the matter, the Appeals are allowed; the impugned order is set aside; and the Complaints are remanded back to the State Commission for being decided in accordance with law. 

The parties/their Counsels are directed to appear before the State Commission on 20.12.2018 for further proceedings.  The State Commission shall dispose of the Complaints as expeditiously as practicable, preferably within six months from the date of first appearance by the parties.     

It is clarified that we have not expressed any opinion on the merits of the Complaints.