Anup K. Thakur:— This complaint has been filed by four complainants namely Avinash Gaur, Sunil Mhetre, Pankaj Jain and Shashie Bhardwaj. The complainants are all “Consumers” as defined in Section 2(d)(ii) of the C.P. Act, 1986. Respondent no. 1 (Builder) is a Company duly incorporated under the Companies Act, 1956. The common grievance of the complainants relates to gross unfair trade practice and deficiency in services, on the part of respondent no. 1 in respect of the flats purchased by them in the Group Housing Project named “Aravali Heights” located at Sector - 24, Dharuhera.
2. The project was launched and flats offered for sale in June, 2007. The license for constructing the Group Housing Complex was granted on 8.1.2007. In terms of Builder Buyer Agreement, respondent no. 1 was supposed to hand over the completed flats, within three years. The respondent no. 1 failed to do so. For the delay, the respondent no. 1 refused to pay interest. The complainants sent various letters, e-mails. Respondent no. 1 however blatantly and with impunity indulged in unfair trade practices by demanding enhanced EDC, IDC, PLC, Electricity Charges, Maintenance charges, Club Charges etc. As per the plaint, Respondent no. 1 is required to pay penalty charges @ 36% for the delayed possession since the builder charges 36% interest from the buyer for any delay in payment of installments. The complainants were constrained to sign the one-sided Builder Buyer Agreement as they had already paid almost 95% of the cost of the flat. Hence, the delay has caused much harassment and substantial monetary loss to the complainants. Respondents nos. 2 & 3 have allegedly issued an occupation certificate to respondent no. 1 and relying on the said same, respondent no. 1 was allegedly offering possession of flats to the complainants, knowing that they were not fit for occupation. The cause of action is recurring in nature and has accrued at Delhi and Dharuhera. Thus, the complainants filed consumer Complaint in this Commission seeking various reliefs, including delivery of possession.
3. The first and foremost issue before us is whether this consumer complaint is maintainable under section 12(1)(c) of the Consumer Protection Act, 1986.
4. This complaint was filed on 18.2.2014 on behalf of four complainants. At the time of filing, it was treated as a simple joint complaint. However, after the judgment of a larger Bench in CC No. 97 of 2016 - Ambrish Kumar Shukla v. Ferrous Infrastructure Pct. Ltd. decided on 7.10.2016, the question of maintainability arose since this judgment laid down conditions for admissibility of complaints under section 12(1)(c) of the Consumer Protection Act, 1986. On 23.01.2017, the Authorized representative of the complainants sought time to argue on maintainability, even as the parties sought time for exploring the possibility of an amicable settlement.
5. We heard the learned counsels on this aspect of maintainability of the complaint in it's present form as a class action plaint eligible to be admitted under section 12 (1)(c).
6. Learned counsel on behalf of the complainant argued that this complaint was filed much before the larger Bench judgment and therefore, the complaint could be proceeded with as it is. She also argued that the conditions laid down for pursuing a joint complaint under section 12(1)(c) by the aforesaid judgment had the impact of restricting the definition of a joint complaint, and that, it could be argued that “All consumers subsumes some consumers”. Therefore, this complaint could be allowed as a joint complaint under sec. 12(1)(c).
7. Counsel on behalf of the respondent argued that nothing could be clearer than the judgment delivered in Ambrish Shukla's case mentioned earlier. The judgment was lucid and had clearly illustrated the matter, leaving no doubt that if a joint complaint has to be made, it had to be in the nature of a class action suit, and that it therefore had to apply to all consumers who had the same interest, same grievance and the same cause of action before a common opposite party. Hence, the present complaint was not maintainable as a class action plaint under section 12 (1)(c).
8. It was revealed during the course of hearing that in an earlier complaint CC no. 250 of 2013, agitating similar issues on behalf of 18 or 19 complainants, an application to amend the complaint so as at align it with the requirements of 12(1)(c), had been made. However, it was not pressed and was therefore dismissed as not pressed. As a consequence, CC 250 of 2013 was found to be not maintainable as a joint complaint and was therefore dismissed.
9. We are thus confronted with a situation in which, in the same project and against the same opposite party-builder, we have two similar complaints, by two different sets of complainants. In the earlier CC 250 of 2013, the set of 18-19 complainants did not press ahead with a joint application. In the present complaint, CC No. 43 of 2014, only 4 complainants wish to press a joint application under sec. 12(1)(c).
10. It appears to us that the present complaint filed as it is on behalf of only four consumers, cannot be maintained as a Class Action Suit even though a separate application under section 12(1)(c) of the C.P. Act, 1986 has since been filed. This is so because we already know that the earlier CC No. 250 of 2013 was, for presumably good reasons, not pursued to make it a joint complaint. Pressing the present complaint in that direction is therefore futile. We can at least be certain that these 18-19 complainants would not be a party to the joint complaint. If so, the complaint would no longer represent nor be on behalf of all the consumers. Therefore, we see the prayer of the complainant to admit the present complaint as a class action suit to be futile.
11. In view of this discussion, we are of the opinion that this consumer complaint is not maintainable under section 12(1)(c) of the Consumer Protection Act, 1986. We accordingly dismiss the Consumer Complaint No. 43 of 2014 with full liberty to the complainants to approach an appropriate Forum to address their grievances.