Azure Tree Townships LLP v. Srishti Building No. 343 Co-Operative Housing Society Limited - (National Consumer Disputes Redressal Commission) (26 May 2017)

National Commission has powers to call for records and pass appropriate orders in consumer disputes, where State Commission has exercised the jurisdiction not vested in it or acted illegally

MANU/CF/0330/2017

Consumer

Instant appeals have been filed against impugned order, passed by State Commission. Complaints were filed alleging deficiency in service rendered by OP builders to complainant society and its members, as a result of statutory and contractual breach on part of OP Builders. Directions have been sought through consumer complaints to builders to remove defects in construction and to carry out repairs etc. Directions have also been sought for making payment of certain amounts alongwith interest towards compensation for delay of 15 months in handing over possession. Particulars of claim attached with consumer complaint in one case shows that, total amount claimed is Rs. 98,68,432/-.

Complainant is a Cooperative Housing Society authorised through a resolution passed in a Special General Body Meeting of Society to collectively represent interests of its members. It is stated that, complaints have been filed by complainant society on its own behalf as well as on behalf of its members. Copies of individual agreements for sale executed by OP Builder with members of complainant society have been attached with complaint. It is evident, therefore, that complainant society has filed consumer complaint in question to look after interests of its members. There is no direct evidence to show that, complainant society itself is a 'consumer'. Evidently, this is a case where society is acting as a voluntary consumer association and has filed consumer complaints as a 'recognised consumer association' within meaning of section 12(1)(b) of Consumer Protection Act, 1986. Term 'voluntary consumer association' has been defined in a recent order passed by a three-Member Bench of this Commission in " Moulivakkam Trust Heights Flats Affected Buyers Association v. M/s. Prime Sristi Housing Pvt. Ltd. & Ors.", and complainant Society is covered in definition as such. There is no question of any permission being granted for filing complaints under Section 12(1)(c) of Consumer Protection Act, 1986, therefore, in present cases.

Averments made by Appellants/OPs before State Commission stating that, complainant should have obtained permission under Section 12(1)(c) before filing present complaints, is not valid in eyes of law. Further, averment made by learned counsel for Respondent as well that present complaint should be taken to have been filed under section 12(1)(a) of Act, is also not valid because Cooperative Society by itself is not a consumer in present case, rather they have filed consumer complaints on behalf of its members. It has been mentioned in complaints that, individual members had executed different individual agreements with OP builder. Regarding pecuniary jurisdiction, a three-Member Bench of this Commission have already decided in case of "Ambrish Kumar Shukla v. Ferous Infrastructure Ltd. " that, value of flat is also to be taken into consideration while deciding pecuniary jurisdiction of consumer fora. Once, said value is taken into account, cases go beyond pecuniary jurisdiction of State Commission.

It is made out from Section 22B of Act that, this Commission may transfer any complaint pending before District Forum of any State to that of another State, or before one State Commission to another State Commission. There is no provision for transfer of proceedings from State Commission to National Commission. Further, as laid down under section 21(b) of Act, this Commission has powers to call for records and pass appropriate orders in consumer disputes, where it appears to this Commission that, State Commission have exercised jurisdiction not vested in it, or has failed to exercise a jurisdiction so vested or has acted illegally or with material irregularity. In present case, consumer complaints are still pending before State Commission and they have not exercised their jurisdiction or failed to exercise said jurisdiction in terms of section 21(b) of Act. Therefore, contention raised by complainants that this Commission should call for records from State Commission and then proceed further in matter of deciding consumer complaints is misplaced.

State Commission have taken an erroneous view that, they had pecuniary jurisdiction to decide complaints. Order passed by State Commission is, therefore, set aside and it is held that, said complaints were not maintainable before State Commission for lack of pecuniary jurisdiction. Matters are remitted back to State Commission for taking further necessary action as per law by directing complainants to file their complaints before appropriate forum/commission of competent jurisdiction.

Relevant : Moulivakkam Trust Heights Flats Affected Buyers Association v. M/s. Prime Sristi Housing Pvt. Ltd. & Ors., Ambrish Kumar Shukla v. Ferous Infrastructure Ltd.

Tags : SERVICE DEFICIENCY COMPENSATION