APPLICATION UNDER ORDER XXI RULE 72 CPC

Affidavit | | | | | 11 | Appendix

Section 23 of the Consumer Protection Act, 1086. | | | | | 12 | ANNEXURE P-1”

A true copy of the Application bearing No.xxxxxfiled by the Appellant before the Hon’ble National Commission. | | | | | 13 | ANNEXURE P-2(colly)”

A true copy of the Reply filed by the Respondent to the Application bearing IA xxxxxfiled by the Appellant. | | | | | 14 | ANNEXURE P-3(colly)”

A true copy of the Consumer Complaint filed by the Respondent bearing xxxxx along with Annexures. | | | | | 15 | I.A. No. of 2023

Application for Condonation of Delay. | | | | | 16 | I.A. No. of 2023

Application for Stay. | | | | | 17 | Vakaltnama with Board Resolution. | | | |

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO. _______ OF 2023.

OFFICE REPORT ON LIMITATION

1.   The Appeal is / are within time.
   

2.   The Appeal is barred by time and there is delay of ………… days in filing the same against order dated …………… and Appeal for condonation of ……… days delay has been file.
   

3.   There is delay of ……. Days in refilling the Appeal and Appeal for condonation of …….. days delay in refilling has been filed.
   

BRANCH OFFICER

NEW DELHI

DATED :

  

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO. _______ OF 2023.

(Arising out of the impugned order dated xxxxx, passed by Xxxxx, in Consumer Case No.xxxxx in IA/xxxxx/2021)

I.A. NO. OF 2023

An Application for Condonation of Delay.

WITH

I.A. NO. OF 2023.

An Application for Stay

PAPER BOOK

FOR INDEX KINDLY SEE INSIDE

FILED BY

NEW DELHI

DATED :

ADVOCATE FOR THE APPELLANT

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO. _______ OF 2023.

CERTIFICATE

Certified that the Civil Appeal is confined only to the pleadings before the Court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Appeal. It is further certified that the copies of the documents attached to the Appeal are necessary to answer the question of law raised in the Appeal or to make out grounds urged in the Appeal for consideration of this Hon'ble Court. This Certificate is given on the basis of the instructions given by the Appellant.

FILED BY

ADVOCATE FOR THE APPELLANT

DRAWN ON

FILED ON:

  

RECORD OF PROCEEDINGS

  

SYNOPSIS AND LIST OF DATES

That the present Appeal is filed under Section 23 of the Consumer Protection Act, 1986 read with Order XXIV of the Supreme Court Rules, 2013 by the Appellant against the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxxwherein the Hon’ble National Commission has dismissed the Application preferred by the Appellant seeking dismissal of the Consumer Case No. xxxxx. The impugned order passed by the Hon’ble National Commission is clearly unsustainable in law and is liable to be set aside by this Hon’ble Court being totally contrary to the settled provisions of law.

That Respondent had preferred the Consumer Complaint No. 2 of 2021 before the Hon’ble Commission under Section 58 of the Consumer Protection Act, 2019 against the Appellant for the alleged deficiencies in units in the project named Xxxxx[hereinafter referred to as “Project”] developed by the Appellant.

DATES EVENTS

xxxxx It is an admitted fact that the Occupation Certificate bearing no. XXXXXTMC/ TDD/OC/xxxxx/18 dated xxxxxfrom the Thane Municipal Corporation for xxxxx and the possession of the respective units were handed over to the respective allottees in the year 2018 itself.

It is an admitted fact that the Respondent is not a voluntary consumer association as envisaged under the Act. It is also an admitted fact that the Respondent came into existence as per the mandatory provisions of the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred to as “RERA Act”].

Jan. 2021 In the month of January 2021, the Respondent, on behalf of the unit buyers without any due authorization from the respective unit buyers, filed the Consumer Complaint No. 2 of 2021 against the Appellant alleging deficiencies in the units.

….2021 That the Appellant filed its reply to aforesaid complaint case along with IAs including an IA No. xxxxx of 2021 under Section 2(5) of the Act read with Section 151 of CPC seeking dismissal of the aforesaid complaint case primarily on two grounds being the Respondent having no locus standi and the complaint being barred by limitation.

xxxxxThat the Hon’ble Commission suo moto clubbed the aforesaid consumer complaint with other consumer complaints being CC No. xx 2022, CC No. xxx/2022 and CC No. xxx/2021 vide Order dated xxxxx

xxxxx That the matter then came up hearing on xxxxxwhereupon the National Commission heard the arguments of the all the parties and reserved the order and passed the impugned order dated xxxxx.

xxxxx Hence, the present Civil Appeal.

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO. _______ OF 2023.

(Arising out of the impugned order dated xxxxx, passed by Xxxxx, in Consumer Case No.xxxxx in IA/xxxxx/2021)

Memorandum of Appeal under Section 23 of the Consumer Protection Act, read with Order XXIV of the Supreme Court Rules, 2013 against the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxxin the case titled as “xxxx vs xxxx’’

---

TO,

THE HON'BLE CHIEF JUSTICE OF INDIA AND HIS LORDSHIPS' COMPANION JUSTICES OF THE HON'BLE SUPREME COURT OF INDIA.

THE CIVIL APPEAL OF THE APPELLANT ABOVE NAMED MOST RESPECTFULLY SHOWETH:-

1.             That the present statutory Appeal is preferred under Section 23 of the Consumer Protection Act, 2019 \[the “Act”\] by the Appellant against the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxxwherein the Hon’ble National Commission has dismissed the Application preferred by the Appellant seeking dismissal of the Consumer Case No. xxxxx. The impugned order passed by the Hon’ble National Commission is clearly unsustainable in law and is liable to be set aside by this Hon’ble Court being totally contrary to the settled provisions of law.
   

2.             QUESTIONS OF LAW
   

I. Whether the Hon’ble Commission was right in clubbing the CC No. xxxxx with other consumer complaints?

II. Whether the Hon’ble Commission below was correct to interpret the facts and circumstances of the case beyond the scope of pleadings of the Respondent?

III. Whether the Hon’ble Commission was right in dismissing the IA No. xxxxxin light of fairly coming to the conclusion that the Complainant is a not a ‘Voluntary Consumer Association’?

IV. Whether the Hon’ble Commission was right in going beyond the scope of definition of the complainant as defined in Section 2(5) and 35 of the Act?

V. Whether the Hon’ble National Commission was correct in superseding the intention of the legislature?

VI. Whether the Hon’ble Commission was right in not dealing with the objection raised by the Appellant as to the reliefs sought by the Respondent being barred by limitation?

1.   FACTS OF THE CASE:
   

The facts of the case in brief are as under:-

i) That Respondent had preferred the Consumer Complaint No. 2 of 2021 before the Hon’ble Commission under Section 58 of the Consumer Protection Act, 2019 against the Appellant for the alleged deficiencies in units in the project named Xxxxx[hereinafter referred to as “Project”] developed by the Appellant.

ii) That it is an admitted fact that the Occupation Certificate bearing no. XXXXXTMC/ TDD/OC/xxxxx/18 dated xxxxx from the Thane Municipal Corporation for xxxxx and the possession of the respective units were handed over to the respective allottees in the year 2018 itself.

iii) That it is alleged that shortly after handing over the possession of the units to the respective buyers, they noticed some deficiencies in the units and the amenities promised to the respective buyers.

iv) That it is an admitted fact that the Respondent is not a voluntary consumer association as envisaged under the Act. It is also an admitted fact that the Respondent came into existence as per the mandatory provisions of the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred to as “RERA Act”].

v) That in the month of January 2021, the Respondent, on behalf of the unit buyers without any due authorization from the respective unit buyers, filed the Consumer Complaint No. 2 of 2021 against the Appellant alleging deficiencies in the units.

vi) That the Appellant filed its reply to aforesaid complaint case along with IAs including an IA No. xxxxx of 2021 under Section 2(5) of the Act read with Section 151 of CPC seeking dismissal of the aforesaid complaint case primarily on two grounds being the Respondent having no locus standi and the complaint being barred by limitation.

vii) That the Hon’ble Commission suo moto clubbed the aforesaid consumer complaint with other consumer complaints being CC No. xx/2022, CC No. xxx/2022 and CC No. xxx/2021 vide Order dated xxxxx

viii) That the matter then came up hearing on xxxxxwhereupon the National Commission heard the arguments of the all the parties and reserved the order and passed the order dated xxxxx.

1.   GROUNDS:
   

That the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxxis bad on the facts as well as on the merits of the case and is liable to be set aside by the following amongst various grounds which are taken without prejudice to each other:-

a. Because the Hon’ble National Commission has committed a grave error of law by laying down a precedent that a non-voluntary society of consumers can maintain a complaint under Section 35 of the Act.

b. Because the Hon’ble National Commission has erroneously circumvented the authority of this Hon’ble Court laid down in the Civil Appeal No. xxxx of 2016 titled xxxx M/s xxxx The Hon’ble National Commission, on coming to the conclusion that the Respondent is not a Voluntary Consumer Association, suo moto went ahead to decide that a non-voluntary association of consumer can file a complaint on behalf of the home buyers.

c. Because admittedly the Section 2(5) of the Act does not include a non-voluntary consumer society or a society and for that matter the Section 35 of the Act also does not include a non-voluntary consumer society or a society. Therefore, it is incomprehensible to understand as to how the Hon’ble National Commission has superseded the intention of the legislature.

d. Because, without prejudice, even if the interpretation of the Hon’ble National Commission is considered there is mention or whisper as to how the Respondent is using the services being provided by the Appellant or the prior approval of the homebuyers to the Respondent for using the services of the Appellant.

e. Because as per the averments stated in the complaint itself the CC No. 2 of 2021 has been preferred by a society registered under the Maharashtra Cooperative Societies Act, 1961. It is pertinent to mention that the Hon’ble National Commission has failed to consider the fact that the complaint in CC No. 2 of 2021 has been filed by one Mr. xxxx in the name of the Respondent without any authority by the Respondent. Moreover, no document showcasing the intention/permission by the units allottees to file the CC No. 2 of 2021 has been filed on record. Admittedly, nothing has been filed on record on behalf of the Respondent as to in what capacity Mr. xxxx has instituted the CC No. 2 of 2021. On perusal of the complaint in CC No. 2 of 2021 it is clear that the complaint had been filed by Mr. Xxxxxin his personal capacity. It is stated that such grave error committed by the Hon’ble National Commission is unwarranted and such ignorance by the Hon’ble National Commission may be fatal to the principles of law.

f. Because if such erroneous interpretation is sustained it will cause grave miscarriage of justice whereby by person without any authority or locus will prefer complaints and that too in a summary procedure proceedings.

g. Because the Respondent has purposefully not specifically valued the CC No. 2 of 2021 and rather those to give vague averments without stating the number of aggrieved unit allottees and the respective value of the units in the Project. The Hon’ble National Commission erroneously without determining the valuation of the CC No. 2 of 2021 went ahead to admit the CC No. 2 of 2021 and dismiss the IA No. xxxxx of 2021.

h. Because the Hon’ble National Commission has erred in suo motto clubbing the CC No. xxxxx with other consumer complaints as the clubbed complaints including the CC No. xxxxx were not at the same stage as that of the CC No. xxxxx. It is evident from the perusal of the Impugned Order wherein the Hon’ble Commission has issued fresh directions in all such consumer complaints for filing their reply while the Appellant herein had already filed its reply along with IA xxxxxin 2021 itself.

i. Because the Hon’ble National Commission while passing the impugned order has miserably failed to even adjudicate upon the objection of the Appellant as to the issue of limitation in CC No. 2 of 2021. It is an admitted case that the allottees of the units in the Project were handed over the possession in the year 2018 however, the CC No. 2 of 2021 came to be filed in the year 2021 which is beyond the limitation period prescribed under the provisions of the Act.

5. The Appellant states that he has not filed any other similar Appeal and/or Petition before this Hon’ble Court or any other Court / Tribunal against the impugned order dated xxxxxpassed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in the case titled as “xxxxx ’’

1.   GROUNDS FOR INTERIM RELIEF:-
   

      That the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx is ex-facie illegal and suffers from patent errors of law, therefore, the appellant is most likely to succeed in the instant Appeal. Further, irreparable loss and injury would be caused to the Appellant, if the operation of the impugned order is not stayed during the pendency of this Appeal.

1.   MAIN PRAYER:
   

It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:-

A. Admit and allow the instant Appeal and set aside the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxxin the case titled as “xxxx vs xxxx ”;

B. Dismiss the Consumer Case No.xxxxx

OR

Remand the matter to the Hon’ble National Commission with appropriate directions; and

C. Pass such further order or orders as this Hon’ble Court may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE APPELLANT AS DUTY BOUND SHALL EVER PRAY

DRAWN AND FILED THROUGH

ADVOCATE FOR THE APPELLANT

DRAWN ON

FILED ON

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

I.A. NO. OF 2023.

IN

CIVIL APPEAL NO. _______ OF 2023.

APPLICATION FOR CONDONATION OF DELAY

To the Hon’ble Chief Justice of India

And His Companion Justices of this Hon’ble Court.

MOST RESPECTFULLY SHOWETH :-

1.   The Appellant above named respectfully submits that the Appellant has filed the instant Appeal filed by the Appellant under Section 67 of the Consumer Protection Act, 2019 and set aside the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxx/2021, which is impugned in this petition.
   

2.   That the present application for condonation is part and parcel of the Civil Appeal and the same is not repeated for sake of brevity.
   

3.   That there is a delay in refilling of the Appeal due to the issue that due to …………..
   

4.   That the Appellant has good case on merit as on point of law and likely to succeed in this Hon’ble Court.
   

5.   That the delay in filling the Appeal is not intentional or willful but has been caused in the above circumstances. It is submitted that the said delay may graciously be condoned by this Hon’ble Court.
   

6.   That the present application has been made bonafide and in the interest of justice.
   

PRAYER

It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to ;-

A. Condone the delay of ____ days in filing the Civil Appeal against the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx;

B. Pass such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS THE APPELLANT AS DUTY-BOUND SHALL EVER PRAY.

FILED BY

ADVOCATE FOR THE APPELLANT

DRAWN ON

FILED ON

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO. _______ OF 2023.

(Arising out of the impugned order dated xxxxx, passed by Xxxxx, in Consumer Case No.xxxxx in IA/xxxxx/2021)

AFFIDAVIT

I, ………….. aged about ……… years, AR / Director of Ms.xxxxx , having office at xxxxx , XXXXXXXXX, do hereby solemnly affirm and state on oath as under:

1.   That I am the AR / Director of the Appellant Company in the above noted case and am well conversant with the facts and circumstances of the case and am competent to swear this affidavit.
   

2.   That I  state that  I have read  over and understood  the contents of the Synopsis, List of Dates and Events from page nos. \_\_\_\_\_\_to\_\_\_\_\_\_, Civil Appeal from para nos. \_\_\_\_\_ to   \_\_\_\_\_ at   page   Nos. \_\_\_\_\_to\_\_\_\_\_\_  alongwith   the   I.As. no.\_\_\_\_ to page \_\_\_\_) have been drafted by my counsel under my instructions and the averments made therein have been read and understood by me. I further state that the averments made therein are true and correct to my knowledge and belief.
   

3.   That the Annexure P-1 to P… to the Civil Appeal are true copies of their respective originals.
   

4.   That the facts stated in the above affidavit are true to my knowledge and belief. No part of the above affidavit is false and nothing material has been concealed therefrom.
   

DEPONENT

VERIFICATION :-

I, the deponent above named, do hereby verify and state that the contents of this affidavit are true and correct to the best of my knowledge and nothing is false and nothing material has been concealed therefrom.

Verified at ______ on this the day _____of August, 2023.

DEPONENT

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

I.A. NO. OF 2023.

IN

CIVIL APPEAL NO. _______ OF 2023.

APPLICATION FOR STAY:

To,

THE HON’BLE CHIEF JUSTICE OF INDIA,

AND HIS COMPANION JUSTICES OF THE

SUPREME COURT OF INDIA.

THE HUMBLE PETITIONER OF THE ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1.              The Appellant above named respectfully submits that the Appellant has filed the instant Appeal filed by the Appellant under Section 23 of the Consumer Protection Act, 2019 and set aside the impugned order dated xxxxx, passed by Hon’ble Xxxxx, in Consumer Case No.xxxxx in IA/xxxxx/2021, which is impugned in this petition.
   

2.              That the Petitioner has set out the material facts and circumstances of the case in the accompanying Appeal which are not repeated herein for the sake of brevity, and the Appellant craves leave of this Hon’ble Court to refer to and rely upon the same for the disposal of this Application.
   

3.              That the Respondent has filed the Complaint titled as “xxxx vs xxxx ” being Consumer Complaint No.xxxxx before Hon’ble Xxxxx with the intention of harassing and causing hardship to the Petitioner.
   

4.              That the petitioner has prima facie good case and balance of convenience has also heavily lies in their favour and they have full hope that they will success in this Hon'ble Court and if this Hon'ble Court will not stay the proceeding of titled as “xxxx vs xxxx ” being Consumer Complaint No.xxxxx before Hon’ble Xxxxx filed by the respondent, till the disposal of this petition, then the petitioner will suffer irreparable loss which cannot be compensated in terms of money.
   

5.              That no loss will be caused to the Respondent in the event the case titled as “xxxx vs xxxx ” being Consumer Complaint No.xxxxx before Hon’ble Xxxxx is stayed.
   

6.              That the present application is bonafide and in the interest of justice.
   

PRAYER

It is therefore respectfully prayed that this Hon’ble Court maybe pleased to:-

a) Stay of proceedings in the case titled as “xxxx vs xxxx” being Consumer Complaint No.xxxxx before Hon’ble Xxxxx filed by the respondent; till the disposal of the present Appeal; and

b) Pass such further order or orders as this Hon'ble Court may deem fit and proper of the facts of the case.

      FILED BY :

ADVOCATE FOR THE APPELLANT

DRAWN ON

FILED ON

  

APPENDIX

Section 23 of the Consumer Protection Act, 1986

Appeal.—Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i)  of clause (a)  of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: 1[Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.]

  

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO. _______ OF 2023.

(Arising out of the impugned order dated xxxxx, passed by Xxxxx, in Consumer Case No.xxxxx in IA/xxxxx/2021)

FILED BY

FILED ON

DATED :

ADVOCATE FOR THE APPELLANT