Consumer Case Number: CC/96/2016
Order dated: 07 Oct 2016
Coram: Justice D.K Jain, Justice B.C. Gupta, Justice V.K. Jain
Parties: Ambrish Kumar Shukla and 21 Ors. vs. Ferrous Infrastructure Pvt. Ltd.
FACTS OF THE CASE
The buyer booked an apartment with builder, Ferrous Infrastructures. The allotment was cancelled by the builder, and they stated that balance sale-consideration was not paid by the buyer. The buyer approached the concerned consumer court District Forum through his consumer court lawyer in India, seeking restoration of the flat with possession and compensation.
The respondent i.e., Ambrish Shukla contested the complaint and took a preliminary objection that the district consumer forum did pecuniary jurisdiction was not adequate to entertain the complaint. The District Forum vide its order dated 22.01.2013, noticing that the price of the apartment was Rs.46,02,653/-, held that the there is no pecuniary jurisdiction of district forum to entertain the complaint.
The appellant then approached the concerned consumer State Commission by way of a fresh Consumer Complaint. The State Consumer Commission however, took the view that if the grievance pertains to a deficiency in service, the complainant has to assess the deficiency in the service availed by him and the value of the flat is not to be taken into consideration while deciding whether the said Commission had pecuniary jurisdiction to hear the complaint or not. Noticing that the complainant had claimed Rs.10,00,000/- as compensation, the complaint was dismissed. Being aggrieved, the complainant has approached National Consumer Redressal Forum.
Vide order dated 11.03.2016, Bench No.1 of National Commission for consumer, noticing a divergence of opinion amongst various Benches of this Commission, on the issue of pecuniary jurisdiction, referred the said issue raised to a larger Bench.
LAWS RELATING TO THE CASE
Section 12(1) of the Consumer Protection Act reads as under:
(1) 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-
(a) The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) Any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) 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; or
(d) The Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.
Section 13(6) of the Consumer Protection Act reads as under:
(6) 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(1)(b) of the Consumer Protection Act reads as under:
(b) “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; or
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint;
Order I of Rule 8 of the Code of Civil Procedure which finds reference in Section 13(6) of the Consumer Protection Act, reads as under:
8. 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 the 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 to all persons so interested in the manner specified in sub-rule (2).
(5) Where 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.
ISSUES OF THE CASE
Vide order dated 11.08.2016 the following issues were referred by a single Member Bench of National Consumer Disputes Redressal Commission to the larger Bench:
(i) 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?
(ii) Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the pecuniary jurisdiction of a particular consumer forum?
(iii) Whether “the value of the goods or services and compensation, if any, claimed” is to be taken as per the original value of such goods, or service at the time of purchase of such goods or hiring or availing of such service, OR such value is to be taken at the time of filing the claim, in question?
(iv) In complaints proposed to be filed under section 12(1)(c) of the Act with the permission of Consumer Forum, whether the pecuniary jurisdiction is to be determined taking the value of goods or service for individual consumer, OR the aggregate value of the properties of all consumers getting together to file the consumer complaint is to be taken into consideration?
(v) For filing the consumer complaints u/s 12(1)(c), whether a group of cooperative societies could join hands to file a joint complaint?
(vi) Whether the term ‘consumer’ given in section 12(1)(c) includes the term ‘Person’ as defined in section 2(m) of the Act, meaning thereby that groups of firms, societies, association, etc. could join hands to file the joint complaints, u/s 12(1)(c) of the Act?
(vii) Many a time, it is seen that more than one joint complaint are already pending in respect of one particular housing project. There is a view that while applying section 12(1)(c) of the Act, only one of these complaints should be allowed to continue as a lead case, and all other complaints should be dismissed and the parties in these dismissed complaints should be directed to become parties in the lead case. Whether the above view is correct, OR in such cases, all complaints should be clubbed and heard together?
DECISION OF THE COURT
1. It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction of national commission.
2. The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer court.
3. The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.
4. In a complaint instituted by Best Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.
5. A complaint filed by Top Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act can be instituted only by one or more consumers, as defined in Section 2(1)(d) of the Consumer Protection Act. Therefore, a group of Cooperative societies, Firms, Association or other Society cannot file such a complaint unless such society etc. itself is a consumer as defined in the aforesaid provision.
6. More than one complaints filed by Goof Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act are not maintainable on behalf of or for the benefit of consumers having the same interest i.e. a common grievance and seeking the same / identical against the same person. In case more than one such complaints have been instituted, it is only the complaint instituted first under Section 12(1)(c) of the Consumer Protection Act, with the requisite permission of the Consumer Forum, which can continue and the remaining complaints filed under Section 12(1)(c) of the Consumer Protection Act are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.
REFERENCE DATED 24.5.2016
Vide order dated 24.05.2016, passed in CC No. 97 of 2016, the following issues relating to the interpretation of Section 12(1)(c) of the Consumer Protection Act were referred, by a two members Bench of National Consumer Court, to a larger Bench for its decision:
1) Whether a complaint filed by Famous Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act filed on behalf of or for the benefit of only some of the numerous consumers having a common interest or a common grievance is maintainable or it must necessarily be filed on behalf of or for the benefit of all the consumers having a common interest or a common grievance against same persons?
2) Whether a complaint filed by Best Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act is maintainable, before National Consumer Court, where the value of the goods or services and compensation, if any, claimed in respect of none of the allottees/purchasers exceeds Rupees one crore?
3) Whether a complaint filed by Best Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act is maintainable before National Commission, where the value of the goods or services and the compensation claimed in respect of an individual allottee exceeds Rupees one crore in the case of one or more allottees but does not exceed Rupees one crore in respect of other allottees?
4) Whether a complaint filed by Best Consumer Court Lawyers under Section 12(1)(c) of the Consumer Protection Act is maintainable, in a case of allotment of several flats in a project/building, where the allotments/bookings/purchases are made on different dates and or the agreed cost of the flat and the area of the flat is not identical in all the bookings/allotment/purchases?
DECISION
In the ncdrc judgement it was held that complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same/identical relief against the same person. A complaint filed by Consumer Court Lawyers on behalf of only some of them therefore will not be maintainable.
Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.
A complaint under Section 12 (1)(c) of the Consumer Protection Act is maintainable before this Commission where the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation, if any, claimed in respect of all such consumers exceeds Rs. 1 crore. The pecuniary jurisdiction of national commission is above Rs. 1 crore.
The value of the goods purchased or the services hired and availed of by an individual consumer or the size, or date of booking/allotment/purchase of the flat would be wholly irrelevant in such a complaint where the complaint relates to the sale/allotment of several flats/plots in the same project/building.
Want to know more of file a case in consumer court? Get legal advice from the best legal experts in India. Hire the Best Consumer Court Lawyers in India from MyAdvo. Email us at info@myadvo.in or call us at +919811782573.
MyAdvo acts as Client's legal concierge providing technology solutions for Lawyer Discovery, Price Discovery and Case updates. With the use of technological solutions, we match the client’s requirements with the lawyer based on expertise, location etc. Our dedicated team of 60+ in Delhi, Mumbai and Bangalore strive to do everything to help the client in taking the better-informed decision by understanding his legal situation and requirement.. Further, for any query regarding the operational or financial debtor you can consult the lawyer online and also ask legal question online. MyAdvo lets you find the lawyer anywhere in India online.
