Consumer Connect: 'Doctors Continue To Be Covered Under Consumer Protection Act,' Says Expert

My friend is a doctor against whom a complaint has been filed in Bandra District Commission. I read that a Supreme Court bench has ruled that advocates are not covered under the Consumer Protection Act (CPA) and no complaint can lie against advocates in any consumer court. The court also observed that there was no legislative intent to cover other professional jobs under the CPA. Is it true? If true, can my friend apply for dismissal of the complaint against him?

Sadanand Shirke, Prabhadevi, Mumbai

It is true that a twojudge bench of the Supreme Court has held that advocates are not covered under the CPA. It is also true that the bench has observed that there was no legislative intent to cover any professionals or professional services under the CPA. This, according to me, is a mere observation (obiter) of the Supreme Court and not the ruling (ratio) on this point. Furthermore, this observation is not supported by any concrete evidence to establish that the Parliament ever intended to exclude professionals (including advocates, doctors, etc) from the purview of the CPA.

Your friend will not be in able to apply for dismissal of the complaint against him for the simple reason that a larger three-judges Supreme Court bench in its landmark judgment in 'IMA v/s VP Shantha' has held that doctors and medical services are squarely covered under CPA.

This judgment does not stand overruled by a smaller bench of two judges of the Supreme Court. That precisely is the reason why this smaller bench has requested the chief justice of India to revisit the 'IMA v/s VP Shanta' case judgment by constituting a larger bench.

Thus, unless this judgment in IMA vs VP Shanta case is duly overruled by a larger bench of at least five judges, no consumer commission can dismiss the complaints pending against doctors.

We are a group of 10 home buyers who booked flats with a developer in Mulund between 2013 and 2016. The builder had given different dates of possessions to all of us. However, the last date of possession was December 2019. All of us have paid in the range of Rs75 lakh to Rs1.2 crore. Due to the long delay we have cancelled our bookings and filed complaint before MahaRERA for full refund of our money with interest and compensation. We received the order from MahaRERA in our favour in February 2024. However, till date the builder has neither complied with the order nor challenged it. In such a case, what is a better option for us to execute this order MahaRERA or NCLT? We are told that MahaRERA takes too long to issue recovery certificate. Kindly advise.

Dilip Phadke, Mulund

You can file an application for executing this order under Section 40 of RERA 2016. However, it is true that it takes quite some time in MahRERA to get the recovery certificate issued. Even the further process of propertry attachment & auction is time-consuming.

The Insolvency & Bankruptcy Code, 2016 (IBC) does recognise homebuyers like you as ‘financial creditors’. To file an application under Section 7 of IBC and thereby recover the amount, there must be minimum of 10% of the homebuyers pooling together or at least 100 homebuyers of the same real estate project.

You have not indicated the total number of units in your real estate project. Hence let me illustrate by an example. If there are up to 100 units in your project, then only your group of 10 homebuyers will be entitled to file an application at NCLT under Section 7 of IBC. If your project has more than 100 units then your group of only 10 homebuyers will not be able to file an application under proviso 2 of Section7 (1) of IBC.

I suggest that notwithstanding some delay, at least initiate the execution process in MahaRERA since your builder he has not filed an appeal. You can approach NCLT even after getting the recovery certificate, provided you comply with threshold requirement under Section 7 (1) as stated above.

Advocate Shirish V Deshpande, chairman, Mumbai Grahak Panchayat Email: shirish50@yahoo.com

Published on: Monday, June 03, 2024, 10:39 AM IST