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Dr. Vivek Kumar Singh & Others v/s M/s. Sweta Estates Private Limited

    Consumer Case No. 3139 of 2017

    Decided On, 10 August 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Complainants: Haider, Fatima Husainm Kanishka Prasad, Advocates. For the Opposite Parties: Pravin Bahadur, Amit Agarwal, Advocates.



Judgment Text

This consumer complaint has been filed by Mr. Vivek Kumar Singh and others alongwith application under Section 12(1) (c) of the Consumer Protection Act, 1986.

2. It has been alleged in the complaint that complainants are the purchasers of flats from the OP and they have received possession of their respective flats, though with delay and some of them have even got the conveyance deed executed but the complainants are aggrieved by the fact that certain flat buyers have not yet got the conveyance deed registered and they have paid holding charges even when the flats were not ready. The main prayers relate to execution of conveyance deed, payment of interest @ 18% p.a. on the amount paid by the complainants for delayed possession, refund of amount charged for increased area and refund the amount of excess additional amount charged by way of cost of escalation on the construction and refund of VAT, payment of Rs.10 lakhs as compensation to each complainant and Rs.25 lakhs as litigation charges.

3. The notice was issued to the OP for haring on the application filed by the complainants under Section 12(1) (c) of the Consumer Protection Act, 1986.

4. Heard both the parties on the application filed under Section 12(1) (c) of the Consumer Protection Act, 1986 filed by the complainants for allowing joint complaint.

5. The learned counsel for the complainants stated that though the possession has been taken by the complainants, however, the complainants are aggrieved by the fact that the possession has been delivered with delay and the OP has not paid any compensation for this delay, whereas the complainants are entitled to 18% p.a. interest on the deposited amount for this delay. The grievances of the complainants are common and same reliefs have been claimed in the complaint for not only the 18 complainants who filed the complaint but for other similarly placed allottees and therefore, this complaint has been filed as a class action and no reliefs have been asked for individual complainants. Thus, basic tenets of Section 12(1)( c) of the Consumer Protection Act, 1986 as laid down in the judgement of the Larger Bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., Consumer Complaint No.97 of 2016 decided on 7.10.2016 are satisfied and hence, complaint be admitted and permission under Section 12(1) (c) of the Consumer Protection Act, 1986, may be granted.

6. On the other hand, the learned counsel for the OP stated that the reliefs sought for in the prayer clause of the complaint are specific to the complainants who have filed the complaint and they are not for other similarly situated allottees. In this regard, learned counsel referred to the judgment of this Commission in C.C. No.638 of 2017, Dr. Sanjay Wadhwan and 9 others Vs. Dreamland Promoters and Consultants Pvt. Ltd., wherein this Commission has observed as under:

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.'

7. It was further argued by the learned counsel that the conveyance deed has already been executed in respect of four complainants out of 18 complainants, namely, Swaran Singh, Dushant Kumar, Pawan Kaushal and Pankaj Ghai. Thus the grievances of all the complainants are not same. The OP is ready to execute the conveyance deed for all the complainants, if not yet executed, provided all the conditions for execution of sale deed are satisfied. The learned counsel for the OP further stated that out of 18 complainants most of them have taken possession of their respective flats in the year 2014 or in the early 2015. Only one person has taken possession in the year 2016 and only one person has taken possession in November, 2015. The complaint has been filed on 25.10.2017 and therefore, except for two complainants, the complaint is barred by limitation as the same has been filed after two years of taking possession of the flats. In this regard, learned counsel for the OP has relied upon the judgment of this Commission in Major Sandeep Vinayak and others Vs. Army Welfare Housing Organization and others, CC No.221 of 2017 decided on 19.5.2017, wherein the permission under Section 12(1)(c) of the Consumer Protection Act, 1986 has been denied on the ground that most of the complainants had taken possession before two years of filing of the complaint. The relevant portion of this judgement reads as under:

'Section 24 (A) of the Consumer Protection Act, 1986 provides for two years limitation for filing of a consumer complaint from the date on which the cause of action occurs. It is obvious that the complainants who had taken possession as early as in the year 2013, 2014 or during first five months of year 2015, their complaints are barred by limitation. It appears that the complainants filed a joint complaint under Section 12 (1) (c) with mala fide intention to avoid limitation clause in respect of the complainants who have failed to file the complaint within the period of limitation. In view of the above, we do not find any reason to accord permission under Section 12 (1) (c) of the Act. The application under Section 12 (1) (c) of the Act is accordingly rejected. Consequently, the complaint is dismissed with the observation that the complainants shall be at liberty to avail of the remedy available to them by approaching the appropriate forum.'

8. Learned counsel for the OP further stated that there are total 826 allottees in the project. However, only 18 persons have come before this Commission and filed complaint and that too on frivolous grounds. It was stated that out of 826 most of the allottees have already got possession and most of them have executed the conveyance deed. In this situation, the permission for filing the joint complaint cannot be given, as already held by this Commission in CC No.108 of 2011, Sudhanshu Jayaswal and others Vs. RPS Infrastructure Ltd., wherein the following has been observed:

'5. On a bare reading of the above, it is clear that permission under section 12 (1) (c ) cannot be granted to one or more consumers unless they have filed a class action complaint seeking relief not only for themselves but various other similarly placed consumers who may be having same interest in the outcome of the complaint. In the instant case, on reading of the prayer clause, it is obvious that complaint has been filed seeking relief only for 16 consumers who have joined hands. Therefore, it is obvious that it is not a class action complaint.

8. The opposite party in their reply have stated that the project in question comprises of approximately 2400 main dwelling units out of which approximately 1550 allottees have already taken possession of their respective units and further approximately 300 allottees have been offered possession. In fact out of the initial 16 complainants, six complainants have already taken possession and have withdrawn the complaints and one had already transferred his rights of allotment in favour of a third party. The other seven complainants have been offered possession on different dates from 06.08.2013 but they have opted not to take the possession and the remaining two complainants have been offered alternative units, however, they have declined. Thus, it cannot be said that the allottes of the project have a commonality of interest and grievances against the opposite party.

9. We have heard the counsel for the complainants and have also gone through the complaint. Complainants have failed to establish that all the allottees of the present project of the OP – M/s R P S Savana situated at Sector 88, Faridabad are aggrieved by the alleged unfair trade practice adopted by the opposite party has adversely impacted all the complainants as also the other allottees, as mentioned in the complaint as also IA no. 5695 of 2016 merely changing the complaint and prayer to state that the complaint has been filed 'for the benefit of all members/ allottees who have been allotted their flats in the project by name and style of ‘Savana’ in Sector 88, Faridabad' without establishing the commonality of interest as also common issues and grievances does not justify allowing the amendment of the complaint as a class suit. As such, in view of categoric finding of the Larger Bench, permission under section 12 (1) ( c) cannot be granted. Hence, IA No. 5695 of 2016 is accordingly dismissed. As a consequence, instant complaint filed by more than one consumer is also rejected as not maintainable. It is, however, made clear that this order will not come in the way of the complainants in availing of their legal remedy by approaching appropriate forum on the same cause of action.'

9. I have given a careful consideration to the arguments advanced by both the parties and have examined the record. It has been argued by learned counsel for the OP that out of 826 allottees of the Project, most of the allottees have taken the possession and have got the conveyance deed registered and even from 18 present complainants, four have got the conveyance deed registered. So clearly all the complainants do not have common interest and same grievances. Moreover, it is seen that except for 2 complainants who have taken possession in the year 2016 or in November, 2015, all other 16 complainants have taken possession in the year 2014 or in first half of the year 2015 i.e. before two years of filing of the present complaint in October, 2017. Thus, the majority of the complainants whose complaints would be barred by limitation have joined hands with a few complainants to evade the issue of limitation in the garb of joint complaint. This Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (R.P.No.1915 of 2015 decided on 11.12.2015), has held the following:-

'13. I have carefully considered the decisions relied upon by the complainant Dr. Gopal Bhutda. In none of the judgements, it has been held that the period of limitation in respect of patent defects will commence from a date later on the date on which the said patent defects comes to the notice of the complainant. No doubt, a builder is under an obligation to rectif

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y the defects, if any, found in the house constructed by him, but if he fails to do so, the complainant is required to approach a consumer forum within two years from the date on which the said defect is noticed by him for the first time. In case he was prevented by sufficient cause from filing a complaint within the prescribed period of limitation, he must file an application seeking condonation of delay in filing the complaint…….' 10. Relying on the above judgment as well as the judgment passed by this Commission in Major Sandeep Vinayak and others Vs. Army Welfare Housing Organization and others (supra), I am of the view that all the complainants are not similarly placed so far as limitation is concerned. Hence, neither the grievances are common nor all the complainants are similarly placed. Thus, the ingredients of 'commonality ' and 'class action' are missing from the present complaint. Hence, permission under Section 12(1)(c) of the Consumer Protection Act, 1986 cannot be granted. Accordingly, application filed under Section 12(1)(c) of the Consumer Protection Act, 1986 is rejected. Consequently the complaint is dismissed as not being maintainable.
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