PRESENT:-
Complainants by Adv. K. M. Yadav
Opponent by Adv. Wankhede
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
1) The complainants have filed this complainant under Section 12 of the Consumer Protection Act, against the opponent for getting compensation alleging deficiency of service on their part.
2) Facts giving rise to the present complaint in short are as under.
3) Opponent No.1 deals in construction business and it is partnership firm registered under Indian Partnership Act, 1932having its office on the address mentioned in the complainant and deals in business under the name and style Valaram Construction. Opponent No.2 & 3 are the partners of opponent No.1 having their offices on the address mentioned in the complaint. The opponents have developed and constructed multistoried building consisting of two wings having 43 flats in Valaram Lake View at Titwala, Tal-Kalyan, District-Thane.
4) The complainants are the bonafide flat purchasers of their respective flats in Valaram Lake View referred above. The opponents have executed registered agreement for sale in favour of complainants. The agreements for sale executed by the opponents in favour of complainant are as per the provisions of Maharashtra Ownership of Flat Act, 1963. It is the contentions of the complainants that, while executing the agreement for sale the opponents have agreed to provide various facilities and amenities such as open wiring and plumbing, green marble kitchen platform with steel sink, spartex flooring in complete flat, sliding window with glass, half tiles in bathroom and W.C., decorative building trance and compound wall. The opponents have also agreed to provide KDMC water supply, MSEB light and meter, street light, concrete and tar road, lawn cover, formation & registration of housing society, solar service, water motor of 7 hp, bore well, drainage pipes, water tank cleaning, watchman cabin and society cabin. The opponents have also agreed to provide occupation and completion certificate.
5) It is the contention of the complainants that opponents have mentioned different dates of possession to different complainants in their agreement of sale. The complainant have repeatedly approached to the opponents for getting possession of the flat but on one or other pretext the opponents have delayed the possession and took time to complete the work. In the month of June-2012 the opponents handed over the possession of the flats to some of the complainants but did not give possession letter to them. While getting the possession of the flat the complainants came to know that the opponents have failed to provide above mentioned facilities and therefore from time to time the complainant have approached to the opponents requesting them to fulfill their promises. Even meeting was called the representative of the opponents who also agreed to complete unfinished work. However, inspite of taking sufficient time opponents did nothing. Therefore the complainants have issued notice to the opponents on 27/06/2013. Even thereafter except assurances the opponents did nothing.
6) It is further contentions of the complainants that the opponents have not only failed to provide above mentioned facilities but also have used sub-standard construction material, electric material due to which the complainant are facing leakage problem. The opponents have also constructed three and half floor though opponents have got the plan sanctioned to construct 4th floor remaining one & half floor was sold to Mr. Ravi Taneja without the consent of flat purchasers. It is further contention of the complainants that since there is no water sup[ply provided by the opponents, the complainants have been compelled to purchase water privately by paying to the water tanker. The opponents have also provided temporary electric supply which is dangerous.
7) Before filing the complaint because of the mis-deed of the opponents the complainants have also filed police complainant against opponent at Titwala Police station. Even then opponents did nothing. Therefore the complainant have filed this complaint alleging the omission of the opponents to provide necessary agreed amenities as deficiency of service and claim compensation of Rs. 18,00,000/- and Rs.1,00,000/ towards cost of the complaint.
8) The opponents have resisted the complaint by filing their written statement wherein they have contended that complainant’s complaint is false, frivolous and not based on trued facts. The opponents have denied all adverse allegations made by the complainants in respect of deficiency of service and states that, complainants have made malafide allegations with intend to extract monetary compensation from the opponents. While challenging the maintainability of the complaint, the opponents state that before filing the complainant the complainant have not fulfilled the requisite statutory requirements though the complaint filed by them is in a representative character. While admitting agreements executed by the opponents in favour of complainants the opponents submit that the allegation leveled by the complainants in respect of incomplete work of their respective flats is not supported by cognate evidence. The opponents categorically deny that they have not provided required amenities. Opponents state that, they have attempted to drill bore well on two occasions. However, inspite of two attempts no water was available and there froe opponents were helpless. In respect of rest of the allegations the opponents have denied those allegations. According to opponents allegations of deficiency of service made by the complainants are without any cognate evidence and corroboration. Therefore opponents pray to reject the complaint.
9) On respective contentions of the parties following points arises for our considerations. Our findings are recorded against the same.
POINTS
- Whether the complainants suffer for statutory requirements? Yes
- Do the complainants prove that opponents indulged in deficiency \of service by not providing agreed amenities and mentioned? Redundant
- Whether complainants are entitled to get compensations? No
- What order? As per final order.
REASONS
10)Since the opponents have challenged the maintainability of the for statutory compliances as per Section 12 (1) (C) of the consumer protection act, it goes to the root of the complaint.
11)Admittedly this complaint is filed by thirty complainants. These thirty complainants are staying in A & B- Wing. Even according to the complainant in A & B- wing there are 43 numbers of flat. It is not a case of complainants that remaining 13 flats nor it is the case of the complainants that in A & B wings there are only 30 flat holders. Therefore necessarily it follows that in remaining 13 flats also flat holders are residing.
12)Now, since all complainants are having same interest the provisions of section 12 (1) (C) of Consumer protection act will made applicable. Because of the same interest of the complainants along with interest of remaining flat holders this complainant can be termed as representative complaint. When complaints is filed by numerous consumers having same interest under Section 12 (12) )the permission of the forum is required for filing such complaint and when such complaint is filed under section 12 (1) ( C) of Consumer Protection Act the procedure laid downunder Section 13 (6) Consumer Protection Act is required to be followed as laid down under Order I Rule 8 of the First Schedule to the Civil Code of procedure.
13) “Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of Section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Consumer Forum thereon.”
Section (2) clause (b) defines the ‘complainant’.
Complainant means
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or
(iii) the Central Government or any State Government, who or which makes a complaint;
(iv) one or more consumers, where there are numerous consumers having the same interest; who or which makes a complaint;
(v) (in case of death of a consumer, his legal heir or representative).”
14) Thus, as per this definition of the ‘complainant’, one or more consumers can be treated as complainant when he is representing or he is having similar interest with numerous consumers.
15) Section 12 which specifically lays down the manner in which the complaint shall be made stated that the 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 the District Consumer Forum by-
(a) …………..
(b) …………..
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Consumer Forum, on behalf of, or for the benefit of all, consumers so interested;
16) So reading from these provisions together, inference follows that whenever one or more consumers files a complaint which is of the representative character in respect of the consumers who are not before the District Consumer Forum the procedure as laid down under section 13(6) is required to be followed.
Order I rule (8) is as follows:-
“One person may sue or defend on behalf of all in same interest.-
(1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.”
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of he institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the plaintiff’s expenses notice of all persons so interested in the manner specified in sub-rule (2).
(5) Whereby any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation—For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.”
17) This rule is required to be followed in a complaint which is a representative complaint. Therefore, unless and until the procedure as required under Order I rule (8) is followed, the complaint cannot be proceeded. ***
18)From the perusal of record it is seen that, though there are 43 flat holders out of them only 30 flat holders who are complainants have approached to the forum alleging deficiency of service on part of the opponents. However, while doing so the compliance of Section 12 (1) ) and Section 13 (6) of the Consumer Protection Act read withOrder I Rule 8of the first Schedule of Civil Procedure Code is not complied with. Therefore complaint suffers mandatory statutory requirements.Our view has been fortified by the judgment of State Commission, Mumbai in the case of Thorat V/s. Nalini Pandurang Limaye in First Appeal 1087/2009 decided on 05/01/2010 & judgment of State Commission, Mumbai in first Appeal No. RBT/A/12/623 in First Appeal 103/2010 in the case of Girish Oswal V/s. Murani J. Pilankar decided on 18/07/2012.Therefor we have no hesitation to conclude that complaint filed by the complainants suffers for mandatory statutory requirements. Therefore we decide point No.1 accordingly. In view of affirmative findings on point No. 1 we hold that, discussion on issue No.2 is redundant and therefore complainants are entitled to get any compensation.
ORDER
Complaint is dismissed. No order as to cost.
