Instant complaint has been filed jointly by three complainants who had booked residential flats in the development project “Parsvnath Palacia” Plot No.5, Sector-P1, Greater Noida, U.P. with the opposite party developer. Allegations of the complainants are that though they had paid almost 95% of the consideration amount for the respective flats, the opposite party has failed to deliver the possession of the flats within the stipulated time. Claiming this to be deficiency in service, the complainants have filed joint complaint seeking following reliefs: - “In view of the above facts and circumstances, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to pass: Orders and directions to the opposite party and in favour of the complainant No.1 to hand over the possession of the subject matter flat i.e. flat No.B-1/904, 9th Flooor, Tower B-1 in Parsvnath Palacia, Plot No.5, Setor-5, Greater Noida, U.P. admeasuring 1320 sq. ft. comprising of two bedrooms, two toilets, living room, dining room, kitchen and balconies etc. at the earliest and also to pay interest @ 24% p.a. to complainant No.1 on the delay beyond agreed period of 36 months to hand over the possession. In alternative to prayer (i) Orders and directions be passed against the opposite party and in favour of the complainant No.1 to return to the complainant the entire principal amount of Rs.36,23,420/- to the complainant No.1 alongwith interest @ 24% p.a. from the date of respective payment upto the date of filing of the present complaint. Orders and directions to the opposite party and in favour of the complainant No.2 to hand over the possession of the subject matter flat i.e. flat No.A-4/304 (3rd Floor), Tower A-4 in Parsvnath Palacia, Plot No.5, Setor-5, Greater Noida, U.P. (admeasuring 1835 sq. ft. super area) consisting of three bedrooms, 3 toilets, living room, dining room, kitchen and balconies etc. at the earliest and also to pay interest @ 24 % p.a. to complainant No.2 on the delay beyond agreed period of 36 months to hand over the possession. In alternative to prayer (ii) Orders and directions be passed against the opposite party and in favour of the complainant No.2 to return to the complainant the entire principal amount of Rs.49,59,072/- to the complainant No.2 alongwith interest @ 24% p.a. from the date of respective payment upto the date of filing of the present complaint. Orders and directions to the opposite party and in favour of the complainant No.3 to hand over the possession of the subject matter flat i.e. Flat No.A-4/503 (5th Floor), Tower A-4 in Parsvnath Palacia Plot No.5, Sector-5, Greater Noida, UP admeasuring 1835 sq. ft. consisting of three bedrooms, 3 toilets, living room, dining room, kitchen and balconies etc. at the earliest and also to pay interest @ 24% p.a. to complainant No.3 on the delay beyond agreed period of 36 months to hand over the possession. In alternative to prayer (iii) Orders and directions be passed against the opposite party and in favour of the complainant No.3 to return to the complainant the entire principal amount of Rs.49,59,072/- to the complainant No.2 alongwith interest @ 24% p.a. from the date of respective payment upto the date of filing of the present complaint. 2. Alongwith the complaint, an application under Section 12 (1) (c) of the Consumer Protection Act, 1986 has been moved seeking permission to pursue the joint complaint. 3. As there was conflicting views in the Commission regarding the interpretation of Section 12 (1) (c) of the Act, the matter was referred by the Hon’ble President to a Larger Bench in Consumer Case No.97/2016 titled Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd. 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(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.” 3. 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. 4. 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 (1) (c) of the Act. Permission is accordingly declined as three 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. 5. 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. |
