The main legal point established in the judgment is the requirement for a class action complaint under Section 12(1)(c) of the Consumer Protection Act, 1986, to have a common grievance against the same service provider and the relief sought to be common or similar to all the complainants.

ORDER :

IA/6205/2018 (Application under Section 12(1)(C) for permission to file Joint Complaint)

1. In order to pursue Consumer Complaint No. 749 of 2018 as a class action, filed under Section 12(1)(c) read with Sections 21(a)(i) and 22 of the Consumer Protection Act, 1986 (for short “the Act”), for the benefit of entire class of Allottees of the project in question, having same interest and grievance, the Complainants have filed the present Application.

2. For proper adjudication on the maintainability of this Application, it is necessary to advert to the averments made by the Complainants in the Complaint and the reply, if any, thereto filed by the Opposite Parties.

3. The Complaint as class action, under Section 12(1)(c), has been filed by 8 (Eight) Complainants on their own behalf and that of other Allottees of “Sunworld Arista” (for short, “the Project”) launched by the Opposite Party No. 1, namely, M/s. Sunworld Residency Private Limited (for short the “Developer”) at GH-1C, Sector-168, NOIDA Express Way, NOIDA, Uttar Pradesh. All the Complainants are represented by their Authorized Representative, namely, Mr. Shashi Kiran Pal, who is Complainant No. 01 in this Complaint.

4. According to the Complainants, the Developer has entered into identical agreements to sell the flats with all the Complainants and similar tripartite agreements evidencing advancement of loan by the Financial Institutions (Opposite Party Nos. 2 and 3) and Bank (Opposite Party No. 4); the issue involved in their cases is similar, inasmuch physical possession of the apartments, booked by them, has not been handed over by the Developer within the committed period; and consequentially same reliefs, i.e. refund of the deposited amount and not to enforce and encash the pre-Equated Monthly Instalments/Equated Monthly Instalments (for short, the “EMI”) of the home loans from the Complainants, have been prayed for by all the Complainants and the Complaint is proposed to have been filed in a representative capacity under the aforesaid provision.

5. For the sake of convenience, the material facts, enumerated hereinafter, are taken from the case of Complainant No. 1, namely, Mr. Shashi Kiran Pal.

6. In the year 2014-2015, the Developer through advertisements by way of brochure, banners, hoardings at prominent places and through Brokers as well as Banks, launched its housing Project and invited applications from the public for allotment of Apartments in its Project. In response to the Booking Application Form, vide allotment letter dated 12.12.2014, the Complainant No. 1 was allotted Flat No. T 10/1001, 10th Floor, Tower-10 admeasuring Super Built Up Area of 615 sq ft. in the aforesaid Project, by the Developer. Accordingly, an Apartment Allottees Agreement (for short, “the Agreement”) was executed between the Developer and the Complainant No. 1 on 12.12.2014 mentioning the details of apartment, payment Subvention plans, etc. The Complainant No. 1 paid a total sum of Rs. 42,97,176 to the Developer as the Principal Amount, out of which 6,97,176 was paid directly by him and 36,00,000 was paid by the Opposite Party No. 2, namely, Housing Development Finance Corporation Limited (hereinafter referred to as “HDFC”) in terms of Tripartite Agreement dated 13.12.2014 executed among the Complainant No. 1, Developer and the said HDFC for raising a loan towards payment of the sale/purchase of the residential apartment in the Project. Similar Tripartite Agreements were also executed by the other Complainants with other Bank/Financial institution, namely, India Bulls Housing Finance Ltd./Opposite Party No. 3 (hereinafter referred to as “IBHF”) and ICICI Bank Ltd./Opposite Party No. 4 (hereinafter referred to as “ICICI” Bank). For ready reference the details of the Tripartite Agreements entered between the Complainants, Developer and the Financial Institutions/Bank are given below