Consumers With Same Interest Can File Joint Complaint; Not Necessary To File Complaint In Representative Capacity : Supreme Court

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"."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 the 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 complaint, but should take recourse only to independent and separate complaints."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 filedThe 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.Factual BackgroundAbout 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...

Consumers With Same Interest Can File Joint Complaint; Not Necessary To File Complaint In Representative Capacity : Supreme Court

Shruti Kakkar

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