19 Dec 2021 2:29 PM GMT
The Supreme Court has held that where there are more consumers than one having similar grievance, it is not necessary that they must file consumer complaint in representative capacity under Section 35(1)(c) of the Consumer Protection Act 2019. Instead, these few consumers can join together and file a joint complaint."There is nothing in the Consumer Protection Act 2019 to prohibit these...
The Supreme Court has held that where there are more consumers than one having similar grievance, it is not necessary that they must file consumer complaint in representative capacity under Section 35(1)(c) of the Consumer Protection Act 2019. Instead, these few consumers can join together and file a joint complaint.
"There is nothing in the Consumer Protection Act 2019 to prohibit these few consumers from joining together and filing a joint complaint", the Court observed.
The Court contrasted a "joint complaint" from a complaint filed under "representative capacity".
The Court also observed that the though Section 2(5)(i) of the Act- which defines "complainant"- uses the word "a consumer", it has to be understood as including plural consumers.
"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", the Court observed.
The Court gave the following illustration to explain the point :
"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)".
When can a consumer complaint in representative capacity can be filed
The court observed that to file a consumer complaint in representative capacity under Section 35(1)(c) of the Consumer Protection Act, 2019, the complaint filed by one or more consumers should be on behalf of or for the benefit of numerous consumers having the same interest.
The bench of Justices Hemant Gupta and V Ramasubramanian was considering a civil appeal challenging an order ("impugned judgement") of the National Consumer Disputes Redressal Commission passed under Section 35(1)(c) of the Act.
In the impugned judgement NCDRC had allowed 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.
While allowing the appeal, the bench in Brigade Enterprises Limited V. Anil Kumar Virmani & Ors said that since "sameness of interest" was the prerequisite for an 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.
"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 bench further observed.
About 91 persons who purchased 51 residential apartments, in a residential complex comprising about 1134 apartments, promoted by the appellant (Brigade Enterprises Limited)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 u/s 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.
Though the builder objected to the application u/s 35(1)(c) but the National Commission by relying on the Top Court's decision in Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy (1990) 1 SCC 608 and National Commission's decision in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd.
Aggrieved, the builder approached the Top Court.
Submission of Counsels
Senior Advocate Jayant Bhushan appearing for the builder contended that out of total 1134 apartments constructed and sold by them since the owners of merely 51 apartments have joined together and such a miniscule percentage of consumers could not file a complaint in a representative capacity. It was also his contention that there was no commonality of interest or grievance, as some individual apartment owners had also invoked the jurisdiction of the Karnataka State Consumer Disputes Redressal Commission, seeking redressal of their separate and distinct grievances.
Senior Advocate Ajit Kumar Sinha appearing for the respondents contended that the issue was 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. He further contended that the respondents had the sameness of interest with the buyers of all the 1134 apartments, which was 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.
Advocate Omanakuttan KK appeared for the intervenors.
Supreme Court's Analysis
The judgement authored by Justice V Ramasubramanian, while referring to Section 35(1)(c) of the Act, observed that it 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 was further observed that the sine qua non for invoking Section 35(1)(c) was that all consumers on whose behalf or for whose benefit the provision was invoked, should have the same interest.
Relying on Section 38(11) of the Act which makes the provisions of Order I Rule 8 of the First Schedule to CPC, 1908 applicable to cases where the complainant is a consumer, the bench said,
"Order I Rule 8, CPC, unlike Section 35(1)(c) operates both ways and contains provisions for a two way 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."
Emphasising on the explanation under Order I Rule 8, the bench said that the same distinguished persons having the same interest in one suit from persons having the same cause of action. In this regard it further noted that to establish sameness of interest, it was not necessary to establish sameness of the cause of action.
Referring to the definition of complainant u/s 2(5), the bench said, "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; (iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers; and (v) the Central Government, Central Authority or State Authority.
While allowing the appeal, the bench modified NCDRC's order to the effect that the complaint filed by the respondents could be treated as a joint complaint filed on the behalf of only the respondents and not as one filed in a representative capacity on behalf of or for the benefit of all the owners of all the 1134 flats.
Case Title: Brigade Enterprises Limited v. Anil Kumar Virmani & Ors.| Civil Appeal No.1779 Of 2021
Coram: Justices Hemant Gupta and V Ramasubramanian
Citation : LL 2021 SC 756
Click Here To Read/Download Judgment