Miscellaneous Application No.180 of 2016
Arising out of C.C. No.168/2016
Date of filing: 16.11.2016 Date of disposal:25.11.2016
Complainants:
1(a). Arup Kumar Mukherjee, S/o Nabanidhar Mukherjee,
1(b). Smt. Rani Mukherjee, W/o Arup Kumar Mukherjee,
2. Parimal Karmakar, S/o Late Nibaran karmakar,
3. Binod Tiwary, S/o Late Baij Nath Tiwary,
4. Rajib Lochan Mukherjee @ Rajib Mukherjee, S/o Sri Chattaranjan Mukherjee,
5(a). Smt. Alpona Mondal, W/o Astick Mondal,
5(b). Astick Mondal, S/oMadhusudan Mondal,
6(a). Sinchan Banerjee, S/o Sasanka Sekhar Banerjee,
6(b). Rita Banerjee, W/o Sinchan Banerjee,
7. Apurba Bandhopadhya, S/o Late Ajit Kumar Bandhopadhya.
All are resident of Elite Plaza, Nematpur, P.O.- Sundar Chalk, P.S. Kulti,
Dist-Burdwan, Pin-713360.
-VERSUS-
Opposite Parties:-
- Zigma Construction, a unit of Zigma Highriser Private Limited,
Having its office at Chittaranjan Road, Nematpur, P.O. Sitarampur,
P.S. Kulti, District-Burdwan, Pin-713359, Represented by its Director.
a. Sanjay Acharjee, S/o Late Shyamapada Acherjee,
Resident of Neamatpur, Lithuria Road, P.O. Sundar Chalk,
P.S. Kulti, District-Burdwan, Pin-713360.
b. Tajinder Singh, S/o Ekbal Singh, Resident of Hill View North, P.O. Asansol-4,
P.S. Asansol South, District-Burdwan, Pin-713304.
2. Sanjay Acharjee, S/o Late Shyamapada Acherjee,
Resident of Neamatpur, Lithuria Road, P.S. Kulti, District-Burwan, Pin-713356.
3. Tajinder Singh, S/o Ekbal Singh, Resident of Hillview North,
P.O. Asansol-4, P.S. Asansol South, District-Burdwan, Pin-713304.
Proforma Opposite Party-
4. Debasis Nag, S/o Late Fatik Chandra Nag, C/o Nag Glass Centre,
Lathuria Road, Neamatpur, P.O. Sundar Chalk,
P.S. Kulti, District-Burdwan, Pin-713360.
Order No.09, Dated: 25.11.2016
This order is arising out of the Miscellaneous Application being no-180/2016 filed by the OP nos-1, 2 and 3 in the C.C no-168/2016 challenging the maintainability of the petition of complaint.
It is mentioned in the application that the present complaint have been filed by several consumers u/S 12 (1)(c) of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step for removal of several defects in the questioned flats of the Complainants as mentioned. Along with the petition of complaint a separate petition filed praying for permission to file the complaint u/S 12 (1)(c) of the C.P. Act, 1986. It is apparent that the requirement of the said section is not fulfill in this case. Consumer Protection Act normally contemplates that every Complainants should have an independent cause of action and therefore independent complaints are to be filed. Here the Complainants have different set of agreement with the OPs. The value of different flat is different and the agreements have also been entered on different point of time. So, each of the Complainants has independent cause of action, if at all. Now, the Section 12 (1)( c) states that complaint by more than one consumer must necessarily be filed on behalf of or for the benefit of numerous consumers having a common grievance. Ingredients of the Section 12 (1)( c) having neither been pleaded nor established in the instant case and on that score alone the instant case is liable to be dismissed. There is another point for which this case is not maintainable. The pecuniary jurisdiction of this ld. Forum is ascertained on the basis of the value of the goods or services and compensation. If any, claimed. It is not equivalent to the value of the mere relief claimed. In the instant case the value of the flat of Arup Mukherjee is for Rs.22,50,000/-, Parimal Karmakar for Rs.16,00,000/- etc. Thus it is evident that the collective value of the goods or service of the Complainants has exceeded the pecuniary jurisdiction of this Ld. Forum. Therefore the complaint is not maintainable on the point of pecuniary jurisdiction also. According to the OP-1, 2 and 3 the complaint is liable to be dismissed and if this application is not allowed the said OPs will suffer irreparable loss and injury. Prayer has been made for allowing the application.
The application has been contested by the Ld. Counsel for the Complainants verbally stating that for abundant precaution separate petition was filed praying for permission to file this complaint u/S 12 (1) ( c) of the Consumer Protection Act, 1986 because seven Complainants have filed this complaint in their separate names. On behalf of the seven Complainants/consumers or for the benefit of all the consumers no single consumer has filed this complaint. Therefore filing of the petition seeking for permission to file the complaint u/S 12 (1) (c) of the Consumer Protection Act, 1986 was not necessary or relevant. It is further contended by the Ld. Counsel for the Complainants that based on the prevalent Ruling wherein it was held that on the basis of ‘claim sought for and /or relief sought for’ complaint can be filed and wherein deed of conveyance has been already executed in favour of the purchaser, the value of the flat will not come for computing the pecuniary jurisdiction of the consumer Forum. But as the said proposition has been changed, according to the Complainants this complaint cannot be maintainable before this Ld. Forum from its pecuniary jurisdictional point of view. The Complainants have prayed for giving liberty to file the complaint before the appropriate Forum/ Commission.
We have carefully perused the content of the application filed by the OP-1, 2 and 3 and objection thereto raised by the Ld. Counsel for the Complainants orally and also heard argument from the Ld. Counsel for the contesting parties at length. We have also gone through the Rulings as relied on by the Ld. Counsel for the OP no-s 1, 2 and 3.
It is seen by us that the instant application have been filed by the abovementioned OPs in the CC no-168/2016 challenging the maintainability of the complaint on two scores i.e. the complaint is not maintainable u/S 12 (1) (c) of the Consumer Protection Act, 1986 and the complaint is also hopelessly barred by pecuniary jurisdiction of this Ld. Forum. Therefore firstly it is to be adjudicated as to whether this complaint is maintainable u/S 12 (1) (c) of the Consumer protection Act, 1986 or not.
We have noticed that this complaint was filed by several Complainants before this Ld. Forum alleging deficiency in service as well as unfair trade practice against the said OPs u/S 12 (1) ( c) of the Consumer Protection Act, 1986 on 26.09.2016. On 03.10.2016 this Ld. Forum was pleased to allow the petition u/S 12 (1) (c) relying on the judgment of the Hon’ble NCDRC passed in the case of M/s. Eicher Motors Limited vs. Dilip Chandra Kant Vaidya & Others decided on 07.11.2006, reported in (2006) (3) CPR (NC) 385 and admitted the complaint. On that date the Complainant moved another petition filed on the Section 13 (3) (B) of the Consumer Protection Act, 1986 praying for an interim order directing the OPs not to raise further any boundary wall over any portion of the common passage violating the sanctioned Municipality plan for the purpose of selling out substantial portion of the apartment to the proforma OP-4. Considering the urgency this Ld. Forum was pleased to allow the said petition for a limited period in view of the Regulation no-17 of 2005. After admission of the complaint notices were issued and scope was given to the OPs for challenging the petition filed u/S 13 (3) (B) of the Consumer Protection Act, 1986. Accordingly the OP nos-1, 2 and 3 appeared through their Ld. Advocate and the Proforma OP-4 inspite of receipt of notice did not turn up to contest the complaint along with the said petition. Be it mentioned that at the time of issuance of notices the order passed by this Ld. Forum u/S 13 (3) (B) of the C.P. Act, 1986 on 03.10.2016 was also sent down. Appearing before this Ld. Forum the OP nos-1, 2 and 3 filed their written version and also filed the instant application challenging the maintainability of the complaint, but did not challenging the interim order passed by this Ld. Forum on 03.10.2016. Therefore the interim order got its finality till disposal of this complaint. As the said OPs have challenged the complaint on law points as mentioned earlier, hence we took up the application for hearing and its disposal.
The Ld. Counsel for the Applicants-OP nos-1, 2 and 3 has relied on the judgment passed by the Hon’ble NCDRC in the case of Devendra Nath Tripathi & Others vs. M.s Antriksh Developers & Promoterms Private Limited & Others, decided on 17.10.2016. Admittedly this complaint have been filed by several Complainants praying for refund of different amounts as taken by the OPs from the individual Complainants for installation of new electricity connection to the flat of the Complainants. Moreover this complaint has not been filed in a representative capacity as the names of the Complainants have been mentioned in the petition of complaint and they put their respective signature in the same. There is no mentioning that who will represent them on behalf of their interest. As the judgment relied on by the Applicants was not in force on 03.10.2016 and admittedly it came later, but now at the time of adjudication of this point we have to rely on the judgment as relied on by the OPs. We are to mention the Section 12 of the Consumer Protection Act, 1986 as enumerated in the said Act.
‘12. Manner in which complaint shall be made-
- 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-
- xxxxxxxxx
- xxxxxxxxx
- 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’
On bare reading of the above provision it is clear that ordinarily a consumer has to be filed by or on behalf of the aggrieved consumer. Section 12 (1) ( c) is in the nature of exception which permits a class action to be initiated by one or more consumers provided necessary requirements of Section 12 (1) (c) are fulfilled. Those requirements are that, there should be numerous consumers having the same interest in the outcome of the consumer complaint, and also that the relief is also sought on behalf of other consumers so interested in the outcome of the complaint.
In the instant case, on perusal of the content along with prayer clause it is clear that amount sought for personal relief for alleged deficiency in service on the part of the OPs and they have not sought any relief on behalf of other allottees who having same interest in the outcome of the consumer complaint. Therefore, in our considered view the requirements of Section 12 (1) (c ) are not fulfilled in this case. The issue of interpretation and scope of Section 12 (1) (c ) was considered by the larger bench of the Hon’ble NCDRC in a reference made in the case, Ambrish Kumar Shukla & Others vs. Ferrous Infrastructure private Limited, CC no-97/2016. The larger bench in its order dated 07.10.2016 has decided the above referred issue as under:-
“The primary object behind permitting a class action such as a complaint under Section 12 (1) ( c) of the Consumer protection Act 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.’
From the abovementioned observation it is clear that unless the complaint has been filed in the nature of class action seeking relief for all the persons having community of interest in the outcome of the complaint the permission under Section 12 (1) (c) cannot be granted. As in the instant case, the requirements of Section 12 (1) (c) are not fulfilled we have no option but to dismiss the complaint on this score. Therefore, the prayer of the OPs as made out in the instant application is hereby allowed in this context.
Now we are to adjudicate the most vital issue as to whether this complaint is barred by pecuniary jurisdiction of the Ld. Forum or not. For this reason we are to mention the relevant Section i.e. 11(1) of the Consumer Protection Act, 1986 as enumerated in the C.P. Act.
11. Jurisdiction of the District Forum-
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed does not exceed rupees twenty lakhs.
The instant complaint have been filed by the Complainants praying for direction upon the OPs for making payment a sum of Rs.50,000/- to the each Complainants totaling of Rs.3,50,000/- due to huge mental agony suffered on account of negligence on the part of the OPs and to make payment of Rs.30,000/- to the each Complainants, totaling for Rs.2,10,000/- to them for adopting unfair trade practice by the OPs. Therefore the Complainants have claimed a sum of Rs.5,60,000/- in total as compensation from the OPs as the prayer portion of the complaint reveals. It is evident from the complaint that seven Complainants as mentioned in the cause title of the complaint purchased seven separate flats from the OPs and out of the seven Complainants deed of conveyance has been executed in favour of six Complainants and in respect of Complainant no-7 the deed has not yet been executed in his favour. The allegation of the Complainants is that the OPs have failed to provide a separate and proper electricity connection for the purpose of running the lift, water pump and illuminating the common areas of the apartment inspite of providing possession to the Complainants in their respective flats. It is alleged that though the OPs have taken money from the individual Complainants towards installation of new electric connection to their respective flats, and the Complainants have to incur all expenses from their own pocket and in total the seven Complainants paid a sum of Rs.1,55,000/-. Apart from this, allegations have been made by the Complainants in respect of other deficiencies, illegalities, irregularities of the OPs as mentioned in the paragraph nos- 8 and 9 of the complaint. Though compensation has been sought for, but nowhere in the prayer portion the value of the respective flats of the Complainants was added with the amount of compensation. During admission hearing on 03.10.2016 the ld. Counsel for the Complainants had relied on the judgment passed by the Hon’ble National Commission in the case of M/s. Eicher Motors Limited vs. Dilip Chandra Kant Vaidya & Others, decided on 07.11.2006 reported in (2006) 3 CPR (NC) 385, wherein the Hon’ble NCDRC was pleased to hold that the complaint is maintainable since the Complainant being dominus litis i.e. master of the suit or complaint could restrict the claim to Rs.20,00,000/-, the complaint could be entertained only by the Hon’ble SCDRC and non else at the relevant time. Placing reliance on the said judgment the instant complaint was admitted. But subsequently on 07.10.2016 this issue was considered by the larger bench of the Hon’ble NCDRC in a reference made in the case, Ambrish Kumar Shukla & Others vs. Ferrous Infrastructure private Limited, CC no-97/2016. The larger bench in its order dated 07.10.2016 has decided the above referred issue as under:-
Vide order dated 11.08.2016 passed in First Appeal no-166/2016, First Appeal no-504/2016 and the First appeal no-505/2016, the following issues were referred by a single bench of the Hon’ble NCDRC to the larger Bench.
- In a situation, where the possession of a housing unit has already been delivered to the Complainants and may be, sale deeds etc also executed, but some deficiencies are pointed out in the construction/development of the property, whether the pecuniary jurisdiction is to be determined taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction.
- ……………………………………….
- ………………………………………..
- to (vii)…………………………………
On the abovementioned issue the Larger Bench of the Hon’ble NCDRC has observed in the paragraph no-14 of the said judgment, which runs as follows:
Reference order dated 11.08.2016
Issue no-(i)
“It is evident from a bare perusal of Sections 21,17 and 11 of the Consumer Protection Act that it is the value of the goods or services and compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than one crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than 1.00 crore, certain defects are found in the house, and the cost of removing defects is Rs.5.00 lacs, the complaint would have to be filed before the NCDRC, the value of the service itself being more than Rs.1.00 crore.”
In the instant complaint the value of the flat of the Complainant no-1(a) & (b) is for Rs.22,50,000/- and if we add the amount of compensation for Rs.80,000/- then it is coming at Rs.23,30,000/-, which exceed the pecuniary jurisdiction of this Ld. Forum. As the value of the flat and compensation has exceeded the pecuniary jurisdiction of this Ld. Forum after considering the Complainant no-1(a) & (b), hence the total value of the flats of the seven Complainants and the compensation as prayed for will certainly cross the pecuniary jurisdiction of this Ld. Forum. Therefore the contention of the OP nos-1, 2 and 3 as made out in the application is hereby allowed.
Going by the foregoing discussion hence it is ordered that the Miscellaneous Application being no-180/2016 is hereby allowed on contest. However considering the facts and circumstances there is no order as to cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member,
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member
D.C.D.R.F., Burdwan
Consumer Complaint No.168/2016
Order No.10, Dated: 25.11.2016
As the M.A. being no- 180/2016 is allowed on contest, hence the complaint being no-168/2016 is also dismissed on contest being not maintainable as the same hits the pecuniary jurisdiction of this Ld. Forum as well as it also hits the section 12 (1) ( c ) of the Consumer Protection Act, 1986. As the C.C. No.168/2016 is dismissed being non-maintainable hence the interim order passed on 3.10.2016 in t h order No.3 should go.
(Silpi Majumder) (Asoke Kr. Mandal)
Member President
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
