R V Prasannakumaar & 47 Ors vs Mantri Castles Pvt. Ltd

This review application has been filed by review applicants/opposite parties Mantri Castles Pvt. Ltd. & anr. This review application has been filed for review of order dated 08.06.2018 passed by this Commission in Consumer Complaint No.913 of 2016.

Heard learned counsel for both the parties.

Learned counsel for the review applicants argued that in the list of 58 complainants mentioned in the order, the complainant mentioned at Sr. No.19, namely, Gangadharaiah C.P. had filed withdrawal application and therefore, his name should not have been there. Similarly for complainants mentioned at Sr. No.57 & 58, Kiran Sundarrajan and Swapna Belvadi and Sundaresan V and Shobha Sundaresan, it was mentioned, though the impleadment application was filed, however, no order was passed on that impleadment application. Accordingly, they cannot be included in the list of complainants.

Apart from the above, learned counsel further argued that there are 16 complainants, who had already taken possession on 5.5.2016 without any protest and therefore, they are not entitled to any interest.

Learned counsel for the review applicants further argued that impugned order dated 08.06.2018 passed by this Commission directed the opposite parties to complete the common facilities and amenities as per the agreement within a period of six months from the date of this order, failing which the OPs shall pay compensation @Rs.1,000/- per month to each of the complainants under the present complaint. It was argued by the learned counsel that the common facilities and amenities were already completed as stated in the affidavit filed by the opposite parties in compliance of the order dated 13.01.2017 passed by this Commission wherein it is clearly stated that the project is complete including all the common facilities and amenities. It was argued by the learned counsel in this context that the order passed by this Commission becomes superfluous and this portion is required to be deleted from the order.

On the other hand, learned counsel for the complainants stated that he agreed that the complainant mentioned at Sr. No.19 had already withdrawn his complaint, therefore, his name may be deleted. The complainants mentioned at Sr. No.57 and 58 had moved impleadment application and this Commission could not pass any order on the impleament of these complainants. As this is a class action complaint and these complainants have applied after public notice, their names are to be included in the list of complainants and no prejudice will be caused to the opposite parties, if their names remain included as the order passed by this Commission shall be applicable on all the similarly placed persons even if they are not a party to the present complaint case.

With respect to 16 complainants, who have taken possession, it was argued by the learned counsel for the complainants that the possession was taken under protest as would be clear from the legal notice issued by these complainants in May, 2016.

With respect of common facilities and amenities, it was pointed out by the learned counsel that the opposite parties in their affidavit evidence dated 30.1.2017 have clearly stated the following:

"6. I state that the Opposite parties have not committed that at the time of delivering the possession of respective flats to the flat owners, they will complete the entire facilities and amenities in the project. The obligation under the contract is to handover the completed apartment on the date of possession and not the completed amenities and facilities, which the apartment purchasers were made aware will be completed in a phased manner considering the size of the project and considering that development of the entire project is being undertaken in phases. However, all of the facilities and civic amenities except the club house have also been completed and the club house is scheduled to be completed by end of June 2017. Thus once the club house is also completed all the facilities and amenities stated in the contract will be completed."

Learned counsel for the complainants further argued that review has to be limited only to the errors apparent on the face of the record. Review cannot be filed for making changes in the impugned order in respect of its findings on merits. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in Union of India Vs. Sandur Manganese and Iron Ores Limited and Ors., (2013) 8 SCC 337, wherein it has been observed that "Mere disagreement with view of the judgment cannot be ground for invoking review jurisdiction- as long as the point is already dealt with and answered, parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under review jurisdiction-"

Learned counsel further referred to judgment of Hon'ble Supreme Court in S.Bagirathi Ammal Vs. Palani Roman Catholic Mission, (2009) 10 SCC 464, wherein the Hon'ble Supreme Court has clarified that "under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest it can be set right by reviewing the order."

I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the record. The review under Section 22 (2) is limited to the error apparent on the face of the record. Section 22 (2) of the Consumer Protection Act, 1986 reads as follows:

" Without prejudice to the provisions contained in sub-section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record."

After perusal of the record and in the light of the judgment of the Hon'ble Supreme Court in Union of India Vs. Sandur Manganese and Iron Ores Limited and Ors. (supra) and in & S.Bagirathi Ammal Vs. Palani Roman Catholic Mission, (supra), I find that the only error apparent on the face of the record is in respect of the complainants mentioned at Sr. No.19,57 & 58. For complainant No.19, Gangadharaiah C.P. both the parties have agreed that his name may be deleted as he had already withdrawn his complaint. There is no specific order from this Commission allowing the impleadment application filed by the complainant mentioned at Sr. No.57, Kiran Sundarrajan and Swapna Belvadi & 58 Sundaresan V and Shobha Sundaresan. Though these complainants may claim the benefit of the order passed by this Commission in the present class action complaint where permission was granted under Section 12 (1)(C) of the Consumer Protection Act. 1986, in my view, it is not necessary to keep these complainants in the list of parties as complainants. Accordingly the complainants mentioned at Sr. No.19 namely, Gangadharaiah C.P., Sr. Nos.57 & 58, Kiran Sundarrajan and Swapna Belvadi and Sundaresan V and Shobha Sundaresan, are deleted from the list of complainants in the judgment and order dated 08.06.2018 passed by this Commission.

So far as the question of 16 complainants is concerned, who have taken possession, the claim of the learned counsel for the complainants is that the possession was taken under protest, whereas the same has been denied by the learned counsel for the opposite parties, who states that no such protest is mentioned in the possession letter/certificate. It has been alleged that the possession was received on 05.05.2016. The impugned order dated 08.06.2018 of this Commission directs that the opposite parties shall pay compensation for delayed possession as per the agreement i.e. @ Rs.3/- per sq.ft. per month along with 6% p.a. interest on the deposited amount from 01.02.2014 till 31.7.2016. As these 16 complainants have taken possession before 31.07.2016, they would be entitled to these compensations only upto their date of taking the possession. Thus, for the complainants who have taken possession before 31.07.2016, they will be entitled to get the compensation @ Rs.3/- per sq.ft. per month as well as compensation @6% p.a. on their deposited amounts before 31.01.2014 from 01.02.2014 till their date of possession. The impugned order stands modified to this extent.

Coming to the question of common facilities and amenities, even if the assertion of the opposite parties is accepted that all the common facilities and amenities are completed, then also, the order of this Commission will not affect the opposite parties as six months' time was granted from the date of order to the opposite parties to complete facilities and amenities. Moreover, in the light of order and judgment of Hon'ble Supreme Court in S.Bagirathi Ammal Vs. Palani Roman Catholic Mission (supra) and in Union of India Vs. Sandur Manganese and Iron Ores Limited and Ors. (supra), this issue cannot be considered further in the review application. The review application is accordingly disposed of in terms of the above orders/directions.