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SUPREME COURT OF INDIA
(From the National Consumers Disputes Redressal Commission, New Delhi)
HEMANT GUPTA, V. RAMASUBRAMANIAN, JJ.
Brigade Enterprises Limited - Appellant
Versus
Anil Kumar Virmani & Ors. - Respondents
Civil Appeal No. 1779 of 2021
Decided On : 17-12-2021
(A) Civil Procedure Code, 1908 – Order I Rule 8 – Consumer Protection Act, 2019 – Sections 35(1)(c) and 38(11) – Joint complaint – Explanation under Order I Rule 8 of CPC distinguishes persons having same interest in one suit from persons having same cause of action – To establish sameness of interest, it is not necessary to establish sameness of cause of action – There is no scope for contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if complaint is not on behalf of or for benefit of, all consumers interested in the matter – There may be cases where only “a few consumers” and not “numerous consumers” have 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 provisions of Section 35(1)(c), complaint filed by one or more consumers should be on behalf of or for benefit of numerous consumers having same interest – It does not mean that where there are only very few consumers having same interest, they cannot even join together and file a single complaint, but should take recourse only to independent and separate complaints. (Paras 21 and 34)
(B) Consumer Protection Act, 2019 – Sections 35(1)(c) and 38(11) – Civil Procedure Code, 1908 – Order I Rule 8 – Joint complaint – Maintainability of class action by aggrieved Apartment Buyers – Delay on part of builder in handing over possession, was primary ground on which compensation was sought by respondents – Since “sameness of interest” is pre-requisite for an application under Order I Rule 8, CPC read with Section 35(1)(c) of Consumer Protection Act, 2019, it was necessary for respondents to include in consumer complaint, sufficient averments that would show sameness of interest – Delay in handing over possession of residential apartments might have given rise to a cause of action for individual purchasers of flats to sue builder – But sameness of cause of action is not equal to sameness of interest – Period of delay in completion of project and handing over of possession, does not appear to be uniform in all 1134 cases – Respondents-complainants cannot project sameness of interest for purchasers in whose case period of delay was negligible and those in whose cases there was a huge delay – Delay in handing over possession need not necessarily be only deficiency in service on part of appellant-builder – Some of 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) – National Commission could not have granted permission to respondents in this case, to file complaint in a representative capacity for and on behalf of owners of all 1134 flats – However, it does not mean that complaint filed by respondents itself is liable to be thrown out – Complaint filed by respondents may have to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers – Impugned order of National Commission modified to the effect that complaint filed by respondents shall be treated as a joint complaint filed on behalf of only respondents herein and not as a complaint filed in a representative capacity on behalf of or for benefit of all owners of all 1134 flats. (Paras 9, 19, 21, 22, 23, 29, 40 and 41)
Facts of the case:
Challenging an order of National Consumer Disputes Redressal Commission, passed under Section 35(1)(c) of Consumer Protection Act, 2019, allowing 91 purchasers of 51 apartments in residential complex developed by them, to file a consumer complaint in a representative capacity, on behalf of and for the benefit of more than about 1000 purchasers, the builder has come up with instant appeal. Main grievance of appellant-builder is that out of total of 1134 apartments constructed and sold by them, 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.
Findings of Court:
Complaint filed by the respondents may have to be treated as a joint 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.
Result : Appeal allowed.
JUDGMENT :
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 for the benefit of more than about 1000 purchasers, the builder has come up with the above appeal.
2. We have heard Mr. Jayant Bhushan, learned senior counsel for 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 Order I Rule 8 of the Code of Civil Procedure.
4. Though the builder who is the appellant herein objected to the 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. Ganapathy, (1990) 1 SCC 608 and the decision of the National Commission in 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 appellant-builder, 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 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 res integra in view of the decisions of this Court in Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy and Vikrant Singh Malik & Ors. vs. Supertech Limited & Ors., (2020) 9 SCC 145. 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.
7. Before we get into an analysis of the rival contentions with specific reference to the statutory provisions, it is necessary to look into the reliefs prayed for, by the respondents in their consumer 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:-
i. Direct the OP
(1) A joint complaint stands in contrast to a complaint filed in a representative capacity. Sameness of cause of action is not equal to sameness of interest.(2) “Sameness of interest” is pre-requisit....
The main legal point established in the judgment is that a class action complaint under Section 12(1)(c) of the Consumer Protection Act requires specific averments to indicate 'sameness of interest' ....
Joint Complaint – Need for application of Order I Rule 8 of CPC would be required only in a case involving a complaint under Section 12(1)(c) of 1986 Act – It does not have any application when simil....
Class action complaints under the Consumer Protection Act require demonstrable 'sameness of interest' among plaintiffs, which must be evident in the pleadings; mere common objectives are insufficient....
The Consumer Protection Act applies to real estate transactions protecting consumers from deficiencies in service, affirming the State Commission's jurisdiction.
Subsequent purchasers retain consumer rights under the Consumer Protection Act and can seek remedies for deficiencies in service from property developers.
The court affirmed that housing construction agreements fall under the Consumer Protection Act, establishing that both parties were bound by the definitions of 'consumer' and 'service'.
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