1.      These appeals have been filed by the same appellants against the order dated 26.6.2014 separately passed by the State Commission in CC Nos.8/2011, 64/2011, 08/12, 09/2012, 10/2012, 11/2012, 17/2011, 18/2011, 12/2012, 25/2011, 26/2011, 27/2011, 28/2011, 37/2011, 38/2011, 39/2011, 39/2012, 40/2011, 48/2011, 49/2011, 50/2011, 65/2011, 7/2012 & 13/2012 filed by Tamil Nadu Consumer Protection Organisation on behalf of different aggrieved persons who had booked flats in the Chennai project of the appellants.

2.      As the facts relating to these appeals are similar, they are being decided by a common order.  First Appeal No.1113 of 2014 shall be taken as the lead case.

3.      Brief facts of the lead case are that on 29.10.2003, an advertisement was issued by appellant No.2 in leading newspapers in Chennai for offering purchase of flat in Chennai, Tamil Nadu.  On 07.05.2005, an amount of Rs.1,15,600/- was deposited by the actual complainant as booking amount. It is the case of the appellants that on 14.09.2006 Ministry of Environment and Forests (hereinafter “MOEF”) issued a notification under the Environment (Protection) Rules, 1986 imposing certain restrictions and prohibitions on the new projects and activities based on their potential environmental impacts.  Due to this notification issued by the MOEF, the appellants had to face new hurdles in seeking approvals from various authorities in the State of Tamil Nadu.  In the period 2005-2010, the appellants herein sought regulatory approvals from the respective authorities in order to construct the residential units.  But due to procedural hurdles, the same could not be obtained despite various attempts by the appellants herein.  Therefore the appellants had offered to refund the money with 6% interest to the respondent in the year 2010.  The appellants also allege that due to procedural hurdles created by the local administration in Tamil Nadu, the delay was beyond the control of the appellants. 

4.      Aggrieved by the above position of progress in the project, on 23.2.2011, consumer complaint No.8 of 2011 was filed by the respondent before the State Commission.  The complaint was resisted by the appellants/opposite parties on the aforesaid grounds. On 01.12.2011, the appellants issued a public notice and offered refund with an interest @ 9% p.a. for the amount already paid by the actual complainant pursuant to the abandonment of the said project.  It has been claimed that more than 300 persons have already taken the refund of the money in view of this advertisement to their full and final satisfaction.  On 26.06.2014, the State Commission passed the following order:-

10.  Point No.4:   In the result, the complaint is allowed in part praying relief for delay compensation alone and in other respects the complaint is dismissed as pre-mature with the liberty to the complainant to seek remedy at appropriate time if so desired.

        As for as the delay compensation is concerned the opposite parties 1 & 2 are jointly and severally directed to pay 24% interest for the advance money and subsequent payment aggregating in all for Rs.1,83,031/- made by the complainant/consumer from the date of last payment made till the date of complaint and subsequently with 12% interest for the same till the commencement of project with due notification by public announcement through Medias, newspapers or entering into an agreement with the complainant/consumer with the option either to enter into an agreement to continue with the project or to withdraw from the project by getting refund of advance money and other payments already made if any as mentioned in the complaint apart from the delayed compensation as awarded above. 

        Since the delay compensation was awarded with sufficient rate of interest no separate compensation for disregard and mental agony are awarded.

        The opposite parties shall pay a sum of Rs.5000/- as costs to the complainant.

        The directions of payment shall be complied within a period of 6 weeks from the date of this order.”

5.      Hence the present appeals.

6.      Heard the learned counsel for both the parties and perused the record.  Learned counsel for the appellants stated that the complainant has deposited only 5% of the total consideration as booking amount, which was Rs.1,15,600/-.  Due to statutory requirements, which the appellants were not able to complete, the project was abandoned. The amount deposited by different persons who had booked in the project, was refunded.  Most of the persons have accepted the refund. However, these complainants have refused to accept the refund.  A public notice dated 01.12.2011 was also issued giving information regarding the abandonment of the project and informing that the refund of the deposited amount will be made with 9% p.a. interest.  The complainants did not come forward to take the refund. Instead they filed different complaints through Tamil Nadu Consumer Protection Organisation.  The complaint was filed for taking the flat though the complainant has paid only 5% of the total consideration amount and this was in the knowledge of the complainant that the project was already abandoned.  Specific performance cannot be possible as the statutory compliances are not there. Therefore, the complaint was not maintainable.  The complainant has accepted in his complaint that he did not accept the refund along with 6% p.a. interest.  Originally, the opposite party had offered to refund along with 6% p.a. interest, however, in the public notice it was clearly stated that the refund shall be made with 9% p.a. interest. 

7.      It was further argued by the learned counsel for the appellants that the same organisation namely, Tamil Nadu Consumer Protection Organisation has filed different complaints of different complainants. However, authorisations from different complainants were not filed.  Therefore, it cannot be said that the complainants have authorised the complainant organisation to file complaint on their behalf.   Furthermore this Commission vide order dated 06.09.2016 and 13.1.2017 had ordered the complainant Organisation to file the authorisation from different complainants on whose behalf this organisation has filed the consumer complaints. Only 32 such authorisations have been filed.  This Commission in its order dated 23.3.2017 has also recorded the fact that counsel for respondents/complainants admitted that no authorisation were filed before the State Commission as it was not required.  The fact is that without authorisation, the complainant Organisation could not have filed the complaint and the State Commission should have dismissed the complaint only on this ground.  Learned counsel for the appellants further stated that it is true that the question of authorisation was not raised in the written statement filed by opposite party.  However, a legal issue can be raised at any stage.

8.      The learned counsel for the appellants further raised the question of pecuniary jurisdiction  and stated that the State commission was not authorised to entertain the complaint as the amount deposited by the complainant was only Rs.1,15,600/- .  The claim was clearly inflated in the complaint and it was the duty of the State Commission to have checked such inflated claim and the State Commission should have dismissed the complaint on the ground of pecuniary jurisdiction.

9.      It was further argued by the learned counsel for the appellants that more than one complaint under Section 12 (1)(c) of the Consumer Protection Act, 1986 is not maintainable as held by the larger Bench of this Commission in Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC). This plea was taken in the written statement as follows:-

“I state that the complaint is not maintainable in law since the complainant did not obtain the permission under Section 12 C of the Consumer Protection Act.”

10.    It was further contended by the counsel for the appellants that if these complaints are treated as complaints filed under Section 12(1)(b) of the Consumer Protection Act, 1986, then all the ingredients are not established as required as per the decision of the larger bench of this Commission in Moulivakkam Trust Heights Flats Affected Buyers Association Vs. M/s. Prime Sristi Housing Pvt. Ltd. & 29 Ors., CC 560 of 2014, decided on 05.05.2017 (NC).

11.    Challenging the order of the State Commission, the learned counsel argued that the State Commission has allowed the payment of interest on the deposited amount without any order of either handing over the possession or refund.  The order of the State Commission is totally illegal and cannot be sustained in law as no order for the payment of compensation can be made without settling the main grievance of the complainant. Moreover, when there is no certainty about the project and in fact it is already abandoned, so no order can be passed assuming that the project will come up.  In fact, no such order can be passed where constant monitoring is required by the court for implementation of the order.  In this regard, learned counsel relied upon the judgment of the Hon’ble Supreme Court in Her Highness Maharani Shantidevi P. Gaikwad Vs. Savjibhai Haribhai patel and others, (2001) 5 SCC 101, where the Hon’ble Apex Court has observed that:

“58. It was further contended by Mr. Nariman that the agreement is not specifically enforceable also in view of clause (d) of sub- section (1) of Section 14 of the Specific Relief Act, 1963. This provision provides that a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise, is not specifically enforceable. There is considerable force in the submission of learned counsel. Even the High Court had substantially proceeded on the basis that the implementation of the scheme may require supervision but held that it can be supervised by the competent authority. Having regard to the nature of the scheme and the facts and circumstances of the case, to our mind it is clear that the performance of the contract involves continuous supervision which is not possible for the court. After repeal, such continuous supervision cannot be directed to be undertaken by the competent authority as such an authority is now non-existent.”

12.    On the other hand, learned counsel for the respondent/complainant stated that under the heading ‘jurisdiction’ in complaint, it is clearly written that total amount involved is more than Rs.20,00,000/- and less then Rs.1 crore, therefore, the State Commission had the jurisdiction.  It was further stated that the total cost of the flat was Rs.23.12 lacs and therefore, in the light of the judgment of the larger bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra), the pecuniary jurisdiction has to be decided based on the total consideration of the property and therefore, the State Commission clearly had the pecuniary jurisdiction to decide these complaints.

13.    It was argued by the learned counsel for the complainant that the consumer complaint was filed on 23.02.2011 and after filing of the complaint, the alleged public notice dated 01.12.2011 was issued.  The copy of the notice filed by the appellants does not indicate whether this notice was published in any newspaper.  It is just a public notice created by the appellants for the purpose of defeating the complaint. 

14.    It was further argued that for the present complaints, Section 12 (1)(c) of the Consumer Protection Act, 1986 is not relevant as the consumer complaints have been filed under Section 12(1)(b) of the Consumer Protection Act, 1986.  Under Section 12(1)(b) of the Consumer Protection Act, 1986, a voluntary consumer organisation can file complaint on behalf of any consumer.  There is no bar in respect of number of complaints to be filed by consumer organisation. In fact no authorisation was necessary for filing the complaint by voluntary consumer organisation under Section 12(1)(b) of the Consumer Protection Act, 1986.  It was argued by the learned counsel that even the decision of larger bench of this Commission in Moulivakkam Trust Heights Flats Affected Buyers Association Vs. M/s. Prime Sristi Housing Pvt. Ltd. & 29 Ors. (supra) does not mention requirement of authorisation to be filed on behalf of the consumer.  However, 32 authorisations have already been filed and the complainant organisation is trying to arrange left over authorizations.

15.    Learned counsel for the respondent/complainant further stated that the respondent does not want to linger on the litigation and has now filed a fresh application on 10.7.2018 for refund of the deposited amount along with interest as ordered by the State Commission. 

16.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the material on record.  First of all, coming to the question of pecuniary jurisdiction, I find that the total consideration of the flat was Rs. 23.12 lacs and therefore, in the light of the judgment of the larger bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra), the State Commission was fully entitled to deal with the complaint filed by the complainant.

17.    Coming to the question of authorisation, it is seen that the question of authorisation was not raised in the written statement filed by the appellants/opposite parties.  Section 12(1)(b) of the Consumer Protection Act, 1986 allows a voluntary consumer organisation to file complaint on behalf of a consumer whether the consumer is a member of such organisation or not.  Clearly, the idea of authorisation is implicit in this Section.  Definitely, a voluntary consumer organisation cannot take up the issue on behalf of the complainant if the complainant does not authorises or is not willing to file the complaint through voluntary consumer organisation.  As, this issue was not taken up by the opposite party in their reply to the complaint, therefore, the State Commission also did not take up this issue for examination.  As different complainants who booked the flats with the opposite party have not separately approached the opposite party, therefore, it cannot be presumed that the complainants had not given their consent to the complainant organisation to file the complaint on their behalf.  Moreover, whatever interest has been awarded by the State Commission would actually go into the accounts of the complainants who booked the flats, the complainant voluntary organisation is not going to reap any benefit out of these complaints.  Moreover, in none of these complaint cases, the appellants have filed any document to prove that the complainant organisation was not authorised by the concerned complainant to file the complaint on his behalf.  Moreover, Section 99 of the Code of Civil Procedure, 1908 (CPC) reads as under:-

"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: -No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

Provided that nothing in this section shall apply to non-joinder of a necessary party.”

18.    From the above provision of the CPC, it is clear that the decree passed by trial court cannot be rectified only on the ground of some irregularity in the proceeding before the trial court, which is not material for delivering substantive justice.  From this point of view as well as on the grounds aforementioned, the question of authorisation is not material to be decided at this stage.

19.    Now coming to the merit of the impugned order of the State Commission, it is seen that the State Commission has neither passed any order for giving possession, nor for refund of the paid amount, but has only passed the order for paying interest @24% p.a. on every month as if the amount was deposited in same monthly income scheme. In a cases where the possession is delayed and compensation for delay in possession is granted, the same is either adjusted against the amount payable by the complainant or it is to be paid to the complainant by the opposite party at the time of handing over the possession. In the present case, the possession was nowhere in sight as the project itself was abandoned.  Section 14 (d) of the Consumer Protection Act, 1986 is the provision relating to award of compensation, which reads as follows:-

“14. Finding of the District Forum-

(d)   to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:”

20.    From the above provision, it is seen that the compensation is required to be quantified and it cannot be awarded in a continuing manner.  Thus, the order passed by the State Commission is not in accordance with the provisions of Consumer Protection Act, 1986.  However, no purpose will be served if the matter is remanded to the State Commission for deciding the complaint afresh as the complainant has already filed an application for refund of the deposited amount with interest.  The fact is that the appellants/opposite parties advertised the project without obtaining the required clearances and without getting any formal approval of the project from the competent authorities.  They accepted the bookings without any approvals and this clearly is an unfair trade practice as well as deficiency in service.  However, with a view to end litigation between the parties, I deem it appropriate to set aside the order dated 26.6.2014 of the State Commission and to order refund of the deposited amount in each complaint case along with interest @12% pa. from the date of respective deposits till actual payment.  The refund should be made in the name of the complainant who had booked the flat. The opposite party shall also be liable to pay a compensation of Rs.15,000/- (rupees fifteen thousand only) and cost of litigation as Rs.5,000(rupees five thousand only) to the actual complainants, who had booked the flats in each complaint case. 

21.    From the impugned orders of the State Commission, it is seen that the complainants in different complaints have deposited the amounts as under:-

22.    Accordingly, the appellants/opposite parties are directed to refund the amount deposited by different complainants as above along with interest @12% pa. from the date of respective deposits till actual payment along with compensation of Rs.15,000/- (rupees fifteen thousand only) and litigation cost of Rs.5,000/- (five thousand only) in each complaint case for one residential unit. The order be complied by the appellants/opposite parties within 45 days from the date of receipt of the order.  The appeals stand accordingly disposed of.