REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1779 of 2021
BRIGADE ENTERPRISES LIMITED ... Appellant (s)
Versus
ANIL KUMAR VIRMANI & ORS. ... Respondent(s)
J U D G M E N T
V. Ramasubramanian, J.
1. Challenging an order of the National Consumer Disputes
Redressal Commission, passed under Section 35(1)(c) of the
Consumer Protection Act, 2019, allowing 91 purchasers of 51
apartments in the residential complex developed by them, to file a
consumer complaint in a representative capacity, on behalf of and
Signature Not Verified
for the benefit of more than about 1000 purchasers, the builder has
Digitally signed by
Jayant Kumar Arora
Date: 2021.12.17
16:45:17 IST
Reason:
1
come up with the above appeal.
We have heard Mr. Jayant Bhushan, learned senior counsel for
2.
the appellant, Mr. Ajit Kumar Sinha, learned senior counsel for the
respondents and Mr. Omanakuttan K. K., learned counsel
appearing for the intervenors.
3. About 91 persons who purchased 51 residential apartments, in
a residential complex comprising of about 1134 apartments,
promoted by the appellant herein, joined together and filed a
consumer complaint on the file of the National Consumer Disputes
Redressal Commission, New Delhi. The Consumer complaint was
accompanied by an application under Section 35(1)(c), seeking the
permission of the National Commission to prosecute the matter
jointly, for the benefit of and on behalf of, not only of the 91
applicants, but of numerous other consumers who have purchased
apartments in the same complex. In other words the consumer
complaint filed by those applicants, who are respondents herein, is
a class action and the permission sought by them was in the nature
of a permission that could be granted by the Civil Court in terms of
2
Order I Rule 8 of the Code of Civil Procedure.
Though the builder who is the appellant herein objected to the
4.
application under Section 35(1)(c), the National Commission allowed
the application by relying upon the decision of this Court in the
Chairman, Tamil Nadu Housing Board, Madras vs. T.N.
1
and the decision of the National Commission in
Ganapathy
Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd.
Aggrieved by the said Order, the builder has come up with the above
appeal.
5. The main grievance of the appellantbuilder, as projected by
Mr. Jayant Bhushan, learned senior counsel is that out of total of
1134 apartments constructed and sold by them, the owners of
merely 51 apartments have joined together and invoked the
jurisdiction of the National Consumer Commission and that such a
miniscule percentage of consumers cannot seek to file the complaint
in a representative capacity. It is also the contention of the learned
senior counsel for the appellant that there was no commonality of
1 (1990) 1 SCC 608
3
interest or grievance, as some individual apartment owners have
also invoked the jurisdiction of the Karnataka State Consumer
Disputes Redressal Commission, seeking redressal of their separate
and distinct grievances.
6. However, the contention of Mr. Ajit Kumar Sinha, learned
counsel appearing on behalf of the respondents/original
complainants is that the issue is no longer in view of the
res integra
decisions of this Court in Chairman, Tamil Nadu Housing Board,
vs. and vs.
Madras T.N. Ganapathy Vikrant Singh Malik & Ors.
2
Supertech Limited & Ors . It is also his contention that the
respondents have the sameness of interest with the buyers of all the
1134 apartments, which is a sine qua non for maintaining an
application under Section 35(1)(c) and that, therefore, the National
Commission was right in allowing the application.
Before we get into an analysis of the rival contentions with
7.
specific reference to the statutory provisions, it is necessary to look
into the reliefs prayed for, by the respondents in their consumer
2 (2020) 9 SCC 145
4
complaint and the pleadings on the basis of which the reliefs were
so sought. The reliefs sought by the respondents in their consumer
complaint, for the benefit of and on behalf of the purchasers of all
the flats in the entire residential complex reads as follows:
“That in view of the abovementioned facts and
circumstances this Hon’ble Commission may graciously be
pleased to pass orders and to direct the OP to:
i. Direct the OP to pay to each of the Complainants and to
each buyer having same interest delay compensation,
as stipulated in the Sale and Construction Agreements,
for unpaid period out of the “Total Period of Delay” as
indicated in Para 46 of the Consumer Complaint;
ii. Direct the OP to pay to each of the Complainants and to
each buyer having same interest, compensatory interest
@ 12% p.a. on individual consideration amount paid, for
abnormal and inordinate delay in construction, till
handing over possession of flats to the complainants,
computing total period of delay as indicated in Para 46
of the Consumer Complaint;
iii. Award cost of the Complaint to the Complainants;
and/or
iv. Pass any other and/or further relief, which this Hon’ble
Commission thinks fit and proper, in the facts and cir
cumstances of the case, in favour of the complainants
and against the OP.”
The pleadings on the basis of which the respondents sought
8.
5
the aforesaid prayers, in brief, are as follows: (i) that the appellant
launched the subject project in the year 2013; that the project
(ii)
styled as “Brigade Lakefront” was to comprise of about 1100 units
in three blocks, namely , Amber block, Blue block and Crimson
block; that Amber block, also called Building No.1, was to have
(iii)
seven wings, namely , Wings A, B, C, D, E, F and G; Blue block, also
called Building No.2 was to have Wings H, I, J, K, L, M and N and
Crimson block, also called Building Nos.3 and 4 were to have Wings
O, P, Q, R, S and T; that in respect of the flats in Blue block, the
(iv)
promised delivery date was 30.06.2016 with a six months grace
period; that though the completion certificate and structural
(v)
stability certificate were also issued by the Consultant/Architect for
the buildings in Blue block on 3.05.2017, the occupancy certificate
was issued partially on 28.12.2018 and the occupancy certificate for
the balance was issued on 25.06.2019; (vi) that in respect of the
buildings in Crimson block, the promised delivery date was
31.01.2018 with a grace period of six months; (vii) that though the
6
completion certificate for the Crimson block was issued by the
architect on 10.08.2018, the occupancy certificate was issued
partially on 28.12.2018; that the builder was guilty of unfair
(viii)
trade practice, inasmuch as the terms and conditions of the
agreement prescribed a paltry compensation of Rs.5 per square feet
to the purchasers, if there was delay in completion of the project,
while penal interest was levied on the buyers at 18% p.a. whenever
they committed default or delay in making payment; (ix) that on
account of the delay on the part of the appellant in handing over
possession, the buyers suffered losses in the form of payment of
monthly rent, interest on the loans taken and payment of higher
registration charges, as the circle rates had gone up in the
meantime; and (x) that therefore they were constrained to file a
complaint.
9. From the aforesaid averments contained in the consumer
complaint, it could be seen that the delay on the part of the builder
in handing over possession, was the primary ground on which
compensation was sought by the respondents. We have already
7
extracted the prayers made in the original complaint. Interestingly
the prayer portion of the complaint does not contain the
quantification of the total amount of compensation sought by the
respondents either individually or collectively for and on behalf of all
the purchasers of all the 1134 residential apartments. The prayer
portion of the complaint refers to paragraph 46 of the complaint, for
the purpose of computation of delay compensation. But paragraph
46 of the complaint does not convey any meaning except if taken
into account along with paragraph 45. Therefore, paragraphs 45
and 46 of the complaint are extracted as follows:
“45. Computation of “Total Period of Delay”—The
Complainants assert that the Total Period of Delay be
calculated as follows:
Delay Period Start – Promised Date of Possession, not
considering the grace period; and
Delay Period End – Either of the following two dates
based on facts of individual complainants:
a. Where possession was taken prior to issuance of
Occupancy Certificate, the Date of Occupancy
Certificate; OR
b. Where possession was taken after the issuance of
Occupancy Certificate, then Date of possession
Offered;
It would be relevant to state that the meaning and nature
of ‘possession’ as stated by the complainants in this
para would mean legal possession only where said
possession had been given or offered to be given upon
8
confirmation of readiness of the flat for possession, in
adherence to Schedule of Construction Agreement.
46. It is clearly and unambiguously inferred that the
Buyers shall receive possession by executing the Sale
Deed and getting the same registered. Both actual
possession and sale deed registration have to be done in
unison in accordance with clauses of the agreement for
construction. Hence, possession without registering and
executing sale deed or vice versa does not together
construe to be “possession” for the purpose of calculating
the delay suffered by the buyers. If both events are done
on separate times, the later date of the two would
prevail. It is respectfully submitted that for the given
residential project, the date of grant of Occupancy
Certificate shall be reckoned as the pivotal event to
ascertain delayed possession and calculating
compensation based thereon.”
Paragraphs 45 and 46 contain a tacit admission that the
10.
period of delay in handing over possession of the flats, may vary
from buyer to buyer in respect of the purchasers of all the 1134
apartments. This is why the respondents have sought the
indulgence of the Commission to compute the delay in respect of
each case, on the basis of formulae indicated in paragraph 45.
11. However, paragraph 41 of the consumer complaint contains
the valuation of the complaint, at least insofar as the 91
complainants who jointly filed the consumer complaint are
9
concerned. The relevant portion of paragraph 41 of the complaint
reads as follows:
“It is submitted that as per the Agreement terms reproduced
above, OPs are committed to pay meager delay compensation
of Rs. 5/ per sq. ft. of saleable area, per month, which comes
to around 0.1% per annum of the sale consideration, or even
lesser. On the contrary, the penalty charged by the OPs in
case the buyers’ default or delay in paying the instalment is
18% per annum. It is clear that the balance of performance is
over 180 times against the buyers who have been bearing the
brunt of the absolute mismanagement of project by the OPs.
The buyer is not only patiently waiting for the possession but
also gets a double whammy to keep paying all the instalments
without enjoying the property. Of the total number of
complainants those who have preferred to approach this
Hon’ble Forum in this instant Complaint, the aggregate value
of sale for 51 complainantbuyers alone, is about Rs. 66 Crore
whereas the aggregate amount disbursed by the OP so the
same buyers, in the name of Delay Compensation is a meager,
less than Rs. 10 lakh which is just about 0.1% for the entire of
delay of more than 2 years
.”
12. Before we proceed further we must record one important fact,
namely, that even according to the respondentscomplainants, the
project comprised of three blocks namely Amber block, Blue block
and Crimson block. Amber block was to have seven Wings with 386
apartments. It appears that none of the owners of these 386
apartments in Amber block have joined with the respondents
complainants. This is why the entire discussion about the delay in
10
completion of the project, with reference to the timeline of events
found in paragraph 14 of the consumer complaint, refers only to
Blue block and Crimson block. The appellant has given a tabulation
in their counter to the original complaint, pointing out that Blue
block comprises of 412 apartments, out of which the owners of only
47 apartments have joined in the filing of the complaint and that
Crimson block has 336 apartments, out of which the owners of only
4 apartments have joined in the complaint.
In view of the fact that none of the owners of the apartments in
13.
Amber block have joined in the filing of the complaint, coupled with
the fact that there is no pleading with respect to the timeline of the
project in respect of Amber block, the consumer complaint filed by
the respondents cannot be treated as one representing the owners
of 386 apartments in Amber block. The respondents ought to have
either included as one of the complainants, the owner of one of the
apartments in Amber block or at least made necessary averments in
the pleading about the timeline for completion of the Amber block,
to make the complaint, as one filed in a representative capacity on
11
behalf of the owners of flats in all the three blocks. Let us now see
at least whether the complaint was maintainable in a representative
capacity on behalf of the owners of the flats in Blue block and
Crimson block, in the light of the requirements of Section 35(1)(c) of
the Act.
14. Section 35(1)(c) enables one or more consumers, where there
are numerous consumers having the same interest, with the
permission of the District Commission, to file a complaint, on behalf
of or for the benefit of all consumers so interested. It is needless to
point out that the sine qua non for invoking Section 35(1)(c) is that
all consumers on whose behalf or for whose benefit the provision is
invoked, should have the same interest. Interestingly, Section 35(1)
(c) uses the disjunction “ or ” in between two sets of words, namely,
“ on behalf of ”; and “ for the benefit of ”. Clause (c) of Sub
(i) (ii)
Section (1) of Section 35 reads as under:
“ one or more consumers, where there are numerous
consumers having the same interest, with the permission of
the District Commission, on behalf of, or for the benefit of, all
consumers so interested.”
12
15. Therefore, a complaint filed under Section 35(1)(c) could either
be “ on behalf of ” or “ for the benefit of ” all consumers having the
same interest.
Section 38(11) of the Consumer Protection Act, 2019 makes
16.
the provisions of Order I Rule 8 of the First Schedule to the Code of
Civil Procedure, 1908 applicable to cases where the complainant is
a consumer referred to in Section 2(5)(v), which defines a
‘ complainant ’ to mean one or more consumers, where there are
numerous consumers having the same interest.
17. Order I Rule 8, CPC, unlike Section 35(1)(c) operates both ways
and contains provisions for a twoway traffic. It not only permits
plaintiffs to sue in a representative capacity but also permits people
to be sued and to be defended in an action, in a representative
capacity. Order I Rule 8 reads as follows:
“8. One person may sue or defend on behalf of all in
—(1) Where there are numerous persons
same interest.
having the same interest in one suit,—
(a) one or more of such persons may, with the
permission of the Court, sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons
so interested;
13
(b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so
interested.
(2) The Court shall, in every case where a permission or
direction is given under subrule (1), at the plaintiff's expense,
give notice of the institution of the suit to all persons so
interested, either by personal service, or, where, by reason of
the number of persons or any other cause, such service is not
reasonably practicable, by public advertisement, as the Court
in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is
instituted, or defended, under subrule (1), may apply to the
Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned
under subrule (1), and no such suit shall be withdrawn under
subrule (3), of rule 1 of Order XXIII, and no agreement,
compromise or satisfaction shall be recorded in any such suit
under rule 3 of that Order, unless the Court has given, at the
plaintiff's expense, notice to all persons so interested in the
manner specified in subrule (2).
(5) Where any person suing or defending in any such suit does
not proceed with due diligence in the suit or defence, the Court
may substitute in his place any other person having the same
interest in the suit.
(6) A decree passed in a suit under this rule shall be binding
on all persons on whose behalf, or for whose benefit, the suit
is instituted, or defended, as the case may be.”
18. In simple terms, the salient features of the stipulations
contained in Order I Rule 8 CPC can be summed up as follows:
(i) where there are numerous persons having the same
interest in one suit, one or more of such persons may,
with the permission of the Court, sue on behalf of or for
the benefit of all persons so interested;
14
(ii) where there are numerous persons having the same
interest in one suit, one or more of such persons may be
sued or one or more such persons may defend such suit,
on behalf of or for the benefit of all persons so interested;
(iii) the Court itself may, without the plaintiffs or defendants
seeking any permission under Order I Rule 8(1)(a), direct
that one or more such persons may sue or be sued or
may defend the suit on behalf of and for the benefit of all
persons interested;
(iv) notice of the institution of the suit to all persons so
interested either by personal service or by public
advertisement should be ordered by the Court in both
categories of cases, namely, where permission is given by
the Court on the application of the individuals or
direction is issued by the Court itself;
any person on whose behalf or for whose benefit the suit is
(v)
instituted or defended may seek to be made a party to the
suit;
abandonment of the whole or part of the claim,
(vi)
withdrawal of the suit or the recording of any agreement,
compromise or satisfaction shall not be allowed by the
Court unless notice to all persons interested in the matter
is issued either by personal service or by public
15
advertisement.
the Court may at any time substitute the person suing or
(vii)
defending in a representative capacity, with any other
person, if the former was not prosecuting the suit or
defence with due diligence.
(viii) the decree passed in the suit covered by this Rule will be
binding on all persons.
19. The Explanation under Order I Rule 8 is of significance. It
distinguishes persons having the same interest in one suit from
persons having the same cause of action. To establish sameness of
interest, it is not necessary to establish sameness of the cause of
action.
20. The Explanation under Order I Rule 8, is a necessary
concomitant of the provisions of the Rules 1 and 3 of Order I.
Order I Rule 1, CPC, allows many persons to join in one suit as
plaintiffs. Order I, Rule 3 allows many persons to be joined in
one suit as defendants. But to fall under Order I Rule 1 or
16
Order I Rule 3, the right to relief should arise out of or be in
respect of the same act or transaction allegedly existing in
such persons, jointly, severally or in the alternative. To some
extent, Rules 1 and 3 of Order I are founded upon the
sameness of the cause of action. This is why the Explanation
under Order I Rule 8 distinguishes sameness of interest from
the sameness of the cause of action .
Since “ ” is the prerequisite for an
21. sameness of interest
application under Order I Rule 8, CPC read with Section 35(1)(c) of
the Consumer Protection Act, 2019, it was necessary for the
respondents to include in the consumer complaint, sufficient
averments that would show sameness of interest. As we have
pointed out earlier the total number of residential apartments
constructed in three blocks comprising of about 20 wings (7 wings
each in Amber and Blue blocks and 6 wings in Crimson block ) were
1134. There are no pleadings insofar as the purchasers of 386
residential apartments in the 7 wings of Amber block are concerned.
17
Even in respect of the owners of the remaining 748 residential
apartments in blue block and Crimson block, the complaint does
not contain any specific averments regarding sameness of interest.
The delay in handing over possession of the residential apartments
might have given rise to a cause of action for the individual
purchasers of flats to sue the builder. But sameness of the cause of
action is not equal to sameness of interest. The existence of
sameness of interest, has been questioned by the appellantbuilder
on the ground that delay compensation as stipulated in the
Agreements was offered to the purchasers and that some of them
accepted the same without any demur or protest, while a few others
have refused to accept. It is not clear from the consumer complaint
as to how (i) those who have accepted the compensation under
protest; those who accepted without protest; and those who
(ii) (iii)
refused to accept the compensation, have the sameness of interest.
22. The period of delay in the completion of the project and the
handing over of possession, does not appear to be uniform in all
1134 cases. The respondentscomplainants cannot project
18
sameness of interest for the purchasers in whose case the period of
delay was negligible and those in whose cases there was a huge
delay.
23. We may have to look at the issue also from the point of view of
the buyers. The delay in handing over possession need not
necessarily be the only deficiency in service on the part of the
appellantbuilder. Some of the purchasers of flats may also have
other complaints and their right to proceed against appellant cannot
be stultified by a few individuals invoking Section 35(1)(c). That a
few purchasers have chosen to approach the Karnataka State
Consumer Disputes Redressal Commission to ventilate their
individual grievances shows that all the 1134 buyers do not have
the same interest as that of the respondents. At least if the
respondents have given the names of purchasers of all flats on
whose behalf the present complaint could be entertained, they
would have been better off. But they have not done so.
Reliance is placed by the learned senior counsel for the
24.
respondents, upon the Judgment of this Court in Chairman,
19
Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy (supra),
to drive home the point that the object of Order I Rule 8 is to
facilitate the decision of questions in which large number of persons
are interested, without recourse to the ordinary procedure and that,
therefore, the provision must receive an interpretation which will
subserve the object of its enactment. This Court pointed out in the
said case that though each of the allottees of plots by the Housing
Board may be interested individually in fighting out the demand
separately made or likely to be made by the Board, it would not
make Order I Rule 8 inapplicable.
25. But the above decision in Tamil Nadu Housing Board (supra)
cannot be pressed into service by the respondents for two reasons,
namely, that what was questioned in a representative suit in that
(i)
case, was the additional demand sought to be made by the Housing
Board on all the allottees uniformly, for an amount over and above
the tentative price originally fixed; and (ii) that in any case this
Court restricted the applicability of the decision only to those
allottees of the low income group. Therefore, the sameness of
20
interest has to be tested on the basis of the nature of the reliefs
claimed and the pleadings that pinpoint the sameness of interest.
In
26. Rameshwar Prasad Shrivastava & Ors. vs. Dwarkadhis
3
Projects Private Limited & Ors. , this Court was concerned with a
case where a complaint filed by a group of 19 persons who were
allotted residential apartments in a Group Housing Project, came to
be dismissed by the National Commission, for want of a proper
application under Section 12(1)(c) of the 1986 Act [equivalent to
Section 35(1)(c) of the 2019 Act]. After referring to the definition of
the expression “ complainant ” in Section 2(1)(b)(iv) of the 1986 Act
and the requirement of Section 13(6) of the 1986 Act, this Court
upheld the Order of the National Commission holding the complaint
to be not maintainable. This Court held that the requirement of
Order I Rule 8 prescribed in Section 13(6) of the 1986 Act should be
read into Section 12(1)(c) of the 1986 Act.
In
27. Anjum Hussain and Ors. vs. Intellicity Business Park
4
Private Limited and Ors. , this Court reversed the decision of the
3 (2019) 2 SCC 417
4 (2019) 6 SCC 519
21
National Commission which dismissed an application under Section
12(1)(c) of the 1986 Act, on the ground that the object of Section
12(1)(c) is to reduce multiplicity of proceedings and that, therefore,
it must receive an interpretation which would subserve the object of
its enactment.
28. In Vikrant Singh Malik and Ors. vs. Supertech Limited
(supra) this Court upheld the order of the National
and Ors. ,
Commission that dismissed an application under Section 12(1)(c) of
the 1986 Act, on the ground that the reliefs prayed for in the
consumer complaint, were confined only to 26 complainants and
that even the pleadings as framed and drawn up, highlighted only
the specific grievances of those 26 complainants.
All the above decisions show that for allowing an application
29.
under Section 12(1)(c) of the 1986 Act or Section 35(1)(c) of the 2019
Act, the pleadings and the reliefs are to be considered. If so
considered, the National Commission could not have granted
permission to the respondents in this case, to file the complaint in a
22
representative capacity for and on behalf of the owners of all the
1134 flats.
That takes us to the next question as to the fate of the
30.
complaint filed by the respondents. It is sought to be contended that
once the application under Section 35(1)(c) is held liable to be
rejected, the complaint should also go, as more than one consumer
cannot institute a complaint unless they come within the definition
of the word “ complainant ” and also satisfy the requirements of
Section 38(11) read with Order I Rule 8 CPC.
31. It is true that the definition of the word “ complainant ” is little
misleading. Section 2(5) of the Consumer Protection Act, 2019 reads
as under:
| “ | (5) "complainant" means— |
|---|
| (ii) | | any voluntary consumer association registered under any law |
| | for the time being in force; or |
| (iii) | | the Central Government or any State Government; or |
|---|
| (iv) | | the Central Authority; or |
|---|
| (v) | | one or more consumers, where there are numerous consumers |
| | having the same interest; or |
| (vi) | | in case of death of a consumer, his legal heir or legal represen | |
| | tative; or | |
23
| (vii) | in case of a consumer being a minor, his parent or legal |
|---|
| guardian; |
32. Section 38(11) reads as under:
| “ | 38. | | Procedure on admission of complaint. |
|---|
| (11) | | Where the complainant is a consumer referred to in subclause |
|---|
| (v) of clause (5) of section 2, the provisions of Order I Rule 8 of the | | |
| First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall | | |
| apply subject to the modification that every reference therein to a | | |
| suit or decree shall be construed as a reference to a complaint or the | | |
| order of the District Commission thereon.” | | |
33. Section 35(1) reads as under:
“ (1) A
35. Manner in which complaint shall be made.
complaint, in relation to any goods sold or delivered or agreed
to be sold or delivered or any service provided or agreed to be
provided, may be filed with a District Commission by—
(a) the consumer,
(i) to whom such goods are sold or delivered or agreed to
be sold or delivered or such service is provided or
agreed to be provided; or
(ii) who alleges unfair trade practice in respect of such
goods or service;
(b) any recognised consumer association, whether the con
sumer to whom such goods are sold or delivered or
agreed to be sold or delivered or such service is pro
vided or agreed to be provided, or who alleges unfair
trade practice in respect of such goods or service, is a
member of such association or not;
(c) one or more consumers, where there are numerous con
sumers having the same interest, with the permission of
24
the District Commission, on behalf of, or for the benefit
of, all consumers so interested; or
(d) the Central Government, the Central Authority or the
State Government, as the case may be:
Provided that the complaint under this subsection may be
filed electronically in such manner as may be prescribed.
34. A careful reading of the above provisions would show that
there is no scope for the contention that wherever there are more
consumers than one, they must only take recourse to Order I Rule 8
CPC, even if the complaint is not on behalf of or for the benefit of,
all the consumers interested in the matter. There may be cases
where only “ a few consumers ” and not “ numerous consumers ” have
the same interest. There is nothing in the Act to prohibit these few
consumers from joining together and filing a joint complaint. A joint
complaint stands in contrast to a complaint filed in a representative
capacity. For attracting the provisions of Section 35(1)(c), the
complaint filed by one or more consumers should be on behalf of or
for the benefit of numerous consumers having same interest. It does
not mean that where there are only very few consumers having the
same interest, they cannot even join together and file a single
25
complaint, but should take recourse only to independent and
separate complaints.
It is true that Section 2(5)(i) uses the expression “ a consumer ”.
35.
If the vowel “ a ” and the word “ consumer ” appearing in Section 2(5)(i)
are to be understood to exclude more than one person, it will result
in a disastrous consequence while reading Section 2(5)(vi). Section
2(5)(vi) states that in the case of death of a consumer, “ his legal heir
or legal representative ” will be a complainant. Unless the words
“ legal heir ” and “ legal representative ” are understood to mean ‘legal
heirs’ and ‘legal representatives’, a meaningful reading of the
provision may not be there.
36. Under Section 13(2) of the General Clauses Act, 1897, words in
the singular shall include the plural and vice versa in all Central
Acts and Regulations, unless there is anything repugnant in the
subject or context. We cannot read anything repugnant in the
subject or context of Section 2(5) or 35(1)(c) or 38(11) of the
Consumer Protection Act, 2019 to hold that the word in the
singular, namely, “consumer” will not include the plural.
26
37. We may take for example a case where a residential apartment
is purchased by the husband and wife jointly or by a parent and
child jointly. If they have a grievance against the builder, both of
them are entitled to file a complaint jointly. Such a complaint will
not fall under Section 35(1)(c) but fall under Section 35(1)(a).
Persons filing such a complaint cannot be excluded from Section
2(5)(i) on the ground that it is not by a single consumer. It cannot
also be treated as one by persons falling under Section 2(5)(v)
attracting the application of Order I Rule 8 CPC read with Section
38(11).
38. Therefore, the proper way of interpreting Section 35(1) read
with section 2(5), would be to say that a complaint may be filed:
(i)
by a single consumer; (ii) by a recognised consumer Association;
by one or more consumers jointly, seeking the redressal of their
(iii)
own grievances without representing other consumers who may or
may not have the same interest; (iv) by one or more consumers on
27
behalf of or for the benefit of numerous consumers; and (v) the
Central Government, Central Authority or State Authority.
39. It must be remembered that the provisions of the Consumer
Protection Act are in addition to and not in derogation of the
provisions of any other law for the time being in force, by virtue of
Section 100. Even Section 38 which prescribes the procedure to be
followed by the Commission for enquiring into the complaint, does
not expressly exclude the application of the provisions of CPC.
Though Subsections (9), (11) and (12) of Section 38 make specific
reference only to a few provisions of the Code of Civil Procedure, the
principle behind Order I Rule 1 enabling more than one person to
join in a suit as plaintiff is not expressly excluded.
Therefore, we are of the considered view that while the National
40.
Commission was wrong in this case, in the peculiar facts and
circumstances in permitting an application under Section 35(1)(c)
read with Order I Rule 8 CPC, it does not mean that the complaint
filed by the respondents itself is liable to be thrown out. The
complaint filed by the respondents may have to be treated as a joint
28
complaint and not a complaint in a representative capacity on
behalf of 1134 purchasers. The purchasers of other flats, such as
the intervenors herein may join as parties to the consumer
complaint, if they so desire. As a matter of fact, it is stated by the
intervenors that pursuant to the impugned order, advertisements
were issued and the intervenors have already filed impleadment
application before the National Commission. They are entitled to be
impleaded.
In view of the above, the appeal is allowed, the impugned order
41.
of the National Commission is modified to the effect that the
complaint filed by the respondents shall be treated as a joint
complaint filed on behalf of only the respondents herein and not as
a complaint filed in a representative capacity on behalf of or for the
benefit of all the owners of all the 1134 flats. Persons who wish to
implead themselves as parties to the complaint filed by the
respondents, may be allowed by the National Commission to do so,
provided their grievance is also limited to the grievance as projected
by the respondents in their consumer complaint. The intervenors
29
herein, in view of what is stated in their application, shall also be
allowed to be impleaded in the consumer complaint. The
intervention application is closed with the above direction. There
shall be no order as to costs.
…..…………....................J.
(Hemant Gupta)
.…..………......................J.
(V. Ramasubramanian)
DECEMBER 17, 2021
NEW DELHI.
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