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Pronounced
on 5th May, 2016
ORDER
PER
JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This complaint has been filed by 14 complainants against opposite party
alongwith application under Section 12 (1) (c) of Consumer Protection Act.
Brief facts of the case are that complainants are buyers/allottees/ owners/
consumers who have booked/purchased apartments/units in opposite party
project after making initial payments. Complaint has been filed
through complainant No. 1 to act as representative on behalf of all the
complainants having same interest. It was further submitted that
complainants booked area between 1550 sq. ft. to 2385 sq. ft. @ Rs. 2905/-
to Rs. 5,384/-. Complainants have made major payment as mentioned in
the complaint and have paid more than Rs. 5.00 crores. Allotment of
apartments was made in the year 2011-2013 but still possession has not been
handed over though grace period for possession has also elapsed. As
per agreement, opposite party is liable to pay penalty of Rs. 5.00/sq.
ft./pm to the complainants. Alleging deficiency on the part of
opposite parties, complainants filed complaint for direction to opposite
party to complete construction of apartments/units and hand over possession
to the complainants and further pay interest @ 24% p.a. on total amount
paid Rs.5,20,55,098/- and further to pay escalation charges and
compensation of Rs. 10.00 lakhs to each of the complainants towards mental
agony and harassment and Rs. 1.00 lakh as cost of litigation to each of the
complainants.
Heard Learned Counsel for the complainant for admission purposes and perused
record.
Learned Counsel for complainants submitted that as complainants are having
same interest on the same terms and conditions, complaint under Section 12
(1) (c ) of the Consumer Protection Act is maintainable.
Perusal of record reveals that complainant No. 1 booked apartment for a sum
of Rs. 1,14,89,935/- against which he has made payment of Rs.
96,38,647/-. As far other apartments of other complainants are
concerned, they are ranging from Rs. 38.00 lakhs to Rs. 76.00 lakhs.
Admittedly, this Commission has pecuniary jurisdiction to entertain
complaints only if value of goods or services and compensation claimed
exceeds Rs. 1.00 crore. Value of goods alongwith compensation claimed
by Complainant No. 2 to 14 does not fall within the pecuniary jurisdiction
of this Commission and in such circumstances, their complaints are not
maintainable before this Commission and they are supposed to file their
complaints before appropriate State Commission. Had complainant Nos.
2 to 14 filed complaints separately, they could not have been entertained
by this Commission for want of pecuniary jurisdiction. Under the garb
of Section 12 (1) (c) or Section 13 (6) of Consumer Protection Act which
are primarily meant for common services, e.g., facility of lift, deficiency
in maintaining common areas or common facilities, complaints are not
maintainable before this Commission merely because complainant No. 1’s
complaint is maintainable before this Commission.
Learned Counsel for complainant has placed reliance on judgment of this
Commission in Complaint No. 282 of 2012- Dewan Ashwani &
Ors. Vs. Unitech Reliable Projects Pvt. Ltd.; in which complaint
comprising many complaints was allowed as each complainant has got same
interest on same terms & conditions though value of their apartments
were ranging from Rs. 55.00 lakhs to Rs. 67.00 lakhs. It was further
submitted by him that SLP filed by opposite party was dismissed by Hon’ble
Apex Court. Perusal of order of Hon’ble Apex Court reveals that appeal
was dismissed as withdrawn and in such circumstances, it cannot be said
that order of this Commission was upheld on merits. In the case
in hand, different complainants have booked their apartments/ units for
different consideration for different area at different rates and in
different years. In such circumstances, it cannot be held that each
complainant has got same interest on same terms & conditions and
we do not agree with law laid down by coordinate bench in Dewan
Ashwani’s case (supra).
Learned Counsel for complainant submitted that if two coordinate benches
differ in their opinion, matter is to be referred to larger bench as held
by Hon’ble Apex Court in 2015 (319) ELT622 (SC)- Commnr. of Customs
and Central Excise Vs. Kraps Chem Pvt. Ltd. & Ors.; in
which it was held that if two coordinate benches in two cases render
conflicting opinion, the only course of action open for Tribunal is to
refer matter to larger Bench. The aforesaid case is not
applicable as there is no conflicting judgment of other
Bench rather this Bench is taking different view from the view taken by
other coordinate Bench in Dewan Ashwani’s case
(supra). In such circumstances, matter is not required to be referred
to larger Bench.
Only complainant No.1’s case falls within the pecuniary jurisdiction of
this Commission and complaints of other complainant Nos. 2 to 14 are not
maintainable before this Commission and merely by moving application under
Section 12 (1) (c) of Consumer Protection Act, complaints filed by other
complainants are not maintainable before this Commission. In such
circumstances, only the complaint filed by complainant No. 1 pertaining to
his apartment is maintainable before this Commission and complaint is
dismissed for mis-joinder of parties with liberty to complainant No. 1 to
file fresh complaint. Liberty is also granted to other complainants
to move to appropriate Forum for relief, if they so desire.
-sd/-
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