JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

                   Complainants are the consumers who had booked and were allotted apartments in the development project undertaken by the opposite party known as ‘The Valley Panchkula”.  The complaint has been filed on the allegations of deficiency in service on the part of the opposite party by the aforesaid complainants for and on behalf of themselves as also the other consumers having same interest in the outcome of the complaint.  The complainants have thus moved application under section 12 (1) ( c) of the Consumer Protection Act, 1986 ( in short, the Act) seeking permission to pursue the complaint as a class action for and on behalf of themselves and other similarly placed consumers having same interest and not arrayed as parties in the complaint. The relief sought in the complaint is reproduced as under:

a.  Direct the opposite parties to hand over the physical and legal possession of their respective units complete in all respects in accordance with the apartment buyers agreement within a period of three months of The Valley Panchkula Project including installation of lift to the complainants and other allottees of “The Valley Panchkula Project;”

b.  Direct the opposite parties to pay interest calculated @ 18% interest compounded quarterly on the amount deposited i.e. from the date of delay in handing over  of the possession to the complainants calculated from the expiry of 24 months from the issuance of allotment letter /FBA till the date the possession is handed over to the complainants along with the registry and other allotees of ‘The Valley Panchkula Project”.

c.  Direct the opposite parties to refund the entire amount paid to opposite parties with 18% interest who doesn’t want to continue association with the opposite parties on grounds of enormous delay being caused and to other Allottees of ‘The Valley Panchkula Project”;

d.  Direct the transfer charges levied by OP’s as null and void in favour of the complainants and other Allottees of ‘The Valley Panchkula Project” and refund the same with 18% interest from the date of payment of transfer charges;

e.  Direct opposite parties to give 5% discount to all government employees in their ninth instalment including the complainants and other Allottees of ‘The Valley Panchkula Project”;

f.    Direct the opposite parties to provide occupancy certificate issued from Town and Planning Department while offering possession of the flat premises to the complainant and other Allottees of ‘The Valley Panchkula Project” to opposite parties;

g.    Direct the opposite parties to bear the brunt of increase in taxes for the delay caused by them post expiry of twenty four months from the date of agreement in favour of the complainants and other Allottees of ‘The Valley Panchkula Project”;

h.  That the demand towards the increase in saleable area must be set-aside raised by the opposite parties in favour of the complainants and other Allottees of ‘The Valley Panchkula Project”;

i.  Award compensation of Rs.5,00,000/-  to each complainants on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainants due to OP’s actions/omissions and to other Allottees of ‘The Valley Panchkula Project”;

j.  Opposite parties may be directed to pay Rs.55,000/- as litigation expenses to each complainants and other Allottees of the ‘The Valley Panchkula Project”;

k.  That any other and further relief in favour of the complainant as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”

2.                  The opposite party has opposed the application under section 12 (1 ( c) of the Act vide its reply filed on 01.05.2017.

3.                     I  have heard counsel for the parties and perused the record.  Section 12 of the Act deals with the manner in which complaint shall be made.  Section 12 (1) ( c) of the Act is reproduced 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 –

(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”

  4.              Learned counsel for the complainants has submitted that on bare reading of section 12 (1 (c ) of the Act, it it  is clear that one or more consumers can file a class action with permission of the District Forum where there are numerous consumers having same interest provided the complaint has been filed on behalf of or for the benefit of all the consumers so interested.  Counsel for the complainant has referred to judgment of the Larger Bench in the matter of Ambrish Kumar Shukla & Ors. Vs Ferrous Infrastructure Pvt. Ltd. CC No. 97/2016.

5.                Counsel for the opposite party developer has submitted that application under section 12 (1) ( c ) of the Act is liable to be dismissed as bare reading of the prayer clause of the complaint would show that there is no commonality of interest amongst the complainants. It is submitted that there are different sets of complainants, some of them are seeking possession of the respective apartments booked by them whereas others are seeking refund of the amount paid by them against the consideration amount with 18% interest p.a..  It is submitted that there is yet another class on whose behalf the complaint has been filed, namely, the government employees who are seeking 5% discount on sale consideration.

6.                In order to appreciate the contention of the respective parties, it would be useful to have a look on the judgment of the larger Bench in the matter of Ambrish Kumar Shukla & Ors. (supra) specifically constituted to give its opinion on interpretation and scope of Section 12 (1) ( c) of the Act. 

7.                The larger Bench of this Commission while dealing with the aforesaid issue has observed 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.

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As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure is the sameness of the interest i.e. a common grievance of numerous persons which is sought to get redressed through a representative action.  Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size, area of the flat / plot and the date of booking / allotment / purchase, would be wholly immaterial.  For instance, if a builder / developer has sold 100 flats in a project out of which 25 are three-bed room flats, 25 are two-bed room flats and 50 are one-bed room flats and he has failed to deliver timely possession of those flats, all the allottees irrespective of size of their respective flats / plots, the date of their respective purchase  and the cost agreed to be paid by them have a common grievance i.e. the failure of the builder/ developer to deliver possession of the flat / plot sold to them and a complaint filed for the benefit of or on behalf of all such consumers and claiming same relief for all of them, would be maintainable under Section 12(1)(c) of the Consumer Protection Act.  The relief claimed will be the same / identical if for instance, in a case of failure of the builder to deliver timely possession, refund, or possession or in the alternative refund with or without compensation is claimed for all of them.  Different reliefs for one or more of the consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint. 

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A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same / identical relief against the same person.  Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.

8.                On  bare reading of the above, it is clear that as per the finding of the Larger Bench,  the complaint under section 12 (1) ( c) of the Act can be proceed on behalf of or for the benefit of the complainants and all other similarly placed consumers provided all of them have common interest or common grievance and they are also seeking same / identical relief.  In the instant case, perusal of prayer clause of the complaint clearly shows that complaint has been filed by more than one complainant but the relief claimed by them is not identical.  One set of the complainants as per the prayer clause is seeking possession of the respective apartments booked by them with 8% interest p.a. for the period of delay in delivery of possession, whereas other set of the complainants does not wish to continue with the project and they are seeking refund of money paid with 18% interest thereon.  Thus, it is clear that in the instant case relief claimed in this complaint is not identical for all the complainants and the consumers who have not been arrayed in the complaint, which is not permissible.

9.                Thus, in view of the judgement of larger Bench in the matter of Ambrish Kumar Shukla & Ors. ( supra), this is not a fit case for granting permission under section 12 (1) ( c) of the Act.    It is pertinent to note that during the course of arguments, I specifically asked the counsel for the complainants if the complainants wanted to amend the complaint to restrict t only to one class of complainants and withdraw the claim of other class of the complainants with liberty to file fresh Lis on the same cause of action.  Counsel for the complainants declined the offer to amend the complaint and insisted that his application be decided on merits.

10.              In view of the discussion above, I am of the opinion that this is not a fit case for grant of permission under section 12 (1) ( c) of the Act.  Application is accordingly dismissed.   As the complainants have refused to amend the complaint to restrict it only to one class of the complainants seeking similar relief, the complaint is dismissed as not maintainable because of misjoinder of parties and causes of action.  It is pertinent to note that permission under section 12 (1) ( c) of the Act has already been granted to the complainants in Brig. Beant Parmar & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. in Consumer Complaint No. 1962 of 2017 relating to the same project.  Therefore, it is clarified that complainants in this case shall be at liberty to get  impleaded in Consumer Complaint No. 1962 of 2017, if they so desire.  or avail of the legal remedy available under law.