Consumers with the same interest can file a joint complaint; not necessary to file a complaint in representative capacity: Supreme Court of India

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 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 a residential complex comprising of about 1134 apartments promoted by the appellant herein joined together and filed a Redressal Commission New Delhi. The Consumer complaint was permission of the National Commission to prosecute the matter jointly for the benefit of and on behalf of not only of the 91 apartments in the same complex. In other words the consumer complaint filed by those applicants who are respondents herein is the application by relying upon the decision of this Court in the Chairman Tamil Nadu Housing Board Madras vs. T.N Ganapathy1 and the decision of the National Commission in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd The main grievance of the appellant­builder as projected by 1134 apartments constructed and sold by them the owners of merely 51 apartments have joined together and invoked the 1 SCC 608 interest or grievance as some individual apartment owners have also invoked the jurisdiction of the Karnataka State Consumer 6. However the contention of Mr. Ajit Kumar Sinha learned counsel appearing on behalf of the respondents original decisions of this Court in Chairman Tamil Nadu Housing Board Supertech Limited & Ors.2 It is also his contention that the 1134 apartments which is a sine qua non for maintaining an application under Section 35(1)(c) and that therefore the National Before we get into an analysis of the rival contentions with into the reliefs prayed for by the respondents in their consumer 9 SCC 145 “That in view of the abovementioned facts and circumstances this Hon’ble Commission may graciously be each buyer having same interest delay compensation abnormal and inordinate delay in construction till handing over possession of flats to the complainants Award cost of the Complaint to the Complainants the aforesaid prayers in brief are as follows:that the appellant launched the subject project in the year 2013 that the project 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 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 O P Q R S and T that in respect of the flats in Blue block the promised delivery date was 30.06.2016 with a six months grace period that though the completion certificate and structural the balance was issued on 25.06.2019 that in respect of the buildings in Crimson block the promised delivery date was 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 trade practice inasmuch as the terms and conditions of the to the purchasers if there was delay in completion of the project they committed default or delay in making payment that on 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 that therefore they were constrained to file a From the aforesaid averments contained in the consumer in handing over possession was the primary ground on which compensation was sought by the respondents. We have already the prayer portion of the complaint does not contain the into account along with paragraph 45. Therefore paragraphs 45 “45. Computation of “Total Period of Delay”—The Complainants assert that the Total Period of Delay be Delay Period Start Promised Date of Possession not Delay Period End Either of the following two dates Occupancy Certificate the Date of Occupancy Occupancy Certificate then Date of possession of ‘possession’ as stated by the complainants in this para would mean legal possession only where said confirmation of readiness of the flat for possession in 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 executing sale deed or vice versa does not together 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 10. Paragraphs 45 and 46 contain a tacit admission that the 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 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 of Rs. 5 ­ per sq. ft. of saleable area per month which comes lesser. On the contrary the penalty charged by the OPs in without enjoying the property. Of the total number of complainants those who have preferred to approach this whereas the aggregate amount disbursed by the OP so the same buyers in the name of Delay Compensation is a meager 12. Before we proceed further we must record one important fact namely that even according to the respondents­complainants the apartments. It appears that none of the owners of these 386 apartments in Amber block have joined with the respondents­ completion of the project with reference to the timeline of events found in paragraph 14 of the consumer complaint refers only to in their counter to the original complaint pointing out that Blue capacity on behalf of the owners of the flats in Blue block and 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 invoked should have the same interest. Interestingly Section 35(1 c) uses the disjunction “or” in between two sets of words namely i) “on behalf of” and “for the benefit of”. Clause of Sub­ “one or more consumers where there are numerous the District Commission on behalf of or for the benefit of all 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 16. Section 38(11) of the Consumer Protection Act 2019 makes a consumer referred to in Section 2(5)(v) which defines a ‘complainant’ to mean one or more consumers where there are 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 to be sued and to be defended in an action in a representative “8. One person may sue or defend on behalf of all in same interest.—(1) Where there are numerous persons 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 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 2) The Court shall in every case where a permission or direction is given under sub­ruleat 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 reasonably practicable by public advertisement as the Court 3) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub­rulemay apply to the sub­rule of rule 1 of Order XXIII and no agreement under rule 3 of that Order unless the Court has given at the plaintiff s expense notice to all persons so interested in the on all persons on whose behalf or for whose benefit the suit is instituted or defended as the case may be.” In simple terms the salient features of the stipulations where there are numerous persons having the same interest in one suit one or more of such persons may where there are numerous persons having the same iii) the Court itself may without the plaintiffs or defendants that one or more such persons may sue or be sued or 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 vi) abandonment of the whole or part of the claim compromise or satisfaction shall not be allowed by the is issued either by personal service or by public defending in a representative capacity with any other person if the former was not prosecuting the suit or 19. The Explanation under Order I Rule 8 is of significance. It distinguishes persons having the same interest in one suit from 20. The Explanation under Order I Rule 8 is a necessary Order I Rule 1 CPC allows many persons to join in one suit as one suit as defendants. But to fall under Order I Rule 1 or 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 21. Since “sameness of interest” is the pre­requisite for an 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 1134. There are no pleadings insofar as the purchasers of 386 Even in respect of the owners of the remaining 748 residential might have given rise to a cause of action for the individual action is not equal to sameness of interest. The existence of on the ground that delay compensation as stipulated in the as to how those who have accepted the compensation under protest those who accepted without protest andthose who 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 delay was negligible and those in whose cases there was a huge 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 few purchasers have chosen to approach the Karnataka State Consumer Disputes Redressal Commission to ventilate their 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 24. Reliance is placed by the learned senior counsel for the respondents upon the Judgment of this Court in Chairman Tamil Nadu Housing Board Madras vs. T.N. Ganapathyto drive home the point that the object of Order I Rule 8 is to are interested without recourse to the ordinary procedure and that therefore the provision must receive an interpretation which will Board may be interested individually in fighting out the demand separately made or likely to be made by the Board it would not the tentative price originally fixed and 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 interest has to be tested on the basis of the nature of the reliefs be dismissed by the National Commission for want of a proper application under Section 12(1)(c) of the 1986 Act of the 1986 Act this Court to be not maintainable. This Court held that the requirement of In Anjum Hussain and Ors. vs. Intellicity Business Park 2 SCC 417 6 SCC 519 12(1)(c) is to reduce multiplicity of proceedings and that therefore In Vikrant Singh Malik and Ors. vs. Supertech Limited and Ors. this Court upheld the order of the National the 1986 Act on the ground that the reliefs prayed for in the consumer complaint were confined only to 26 complainants and Act the pleadings and the reliefs are to be considered. If so considered the National Commission could not have granted representative capacity for and on behalf of the owners of all the 30. That takes us to the next question as to the fate of the once the application under Section 35(1)(c) is held liable to be rejected the complaint should also go as more than one consumer of the word “complainant” and also satisfy the requirements of i) a consumer 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 vi) in case of death of a consumer his legal heir or legal represen­ in case of a consumer being a minor his parent or legal apply subject to the modification that every reference therein to a “35. Manner in which complaint shall be made.­ A be sold or delivered or such service is provided or 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 the District Commission on behalf of or for the benefit of all consumers so interested or the Central Government the Central Authority or the Provided that the complaint under this sub­section may be 34. A careful reading of the above provisions would show that 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 capacity. For attracting the provisions of Section 35(1)(c) the same interest they cannot even join together and file a single complaint but should take recourse only to independent and or legal representative” will be a complainant. Unless the words heirs’ and ‘legal representatives’ a meaningful reading of the 36. Under Section 13(2) of the General Clauses Act 1897 words in 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. 37. We may take for example a case where a residential apartment not fall under Section 35(1)(c) but fall under Section 35(1)(a Persons filing such a complaint cannot be excluded from Section also be treated as one by persons falling under Section 2(5)(v 38. Therefore the proper way of interpreting Section 35(1) read by a single consumer by a recognised consumer Association behalf of or for the benefit of numerous consumers and the Protection Act are in addition to and not in derogation of the not expressly exclude the application of the provisions of CPC 40. Therefore we are of the considered view that while the National Commission was wrong in this case in the peculiar facts and circumstances in permitting an application under Section 35(1)(c filed by the respondents itself is liable to be thrown out. The 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 In view of the above the appeal is allowed the impugned order of the National Commission is modified to the effect that the complaint filed by the respondents shall be treated as a joint implead themselves as parties to the complaint filed by the respondents may be allowed by the National Commission to do so by the respondents in their consumer complaint. The intervenors 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

Summary: 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, (i)  “on behalf of”; and  (ii)  “for the benefit of”. 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. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice Hemant Gupta &amp; Hon’ble Justice V. Ramasubramanian in the matter of BRIGADE ENTERPRISES LIMITED vs ANIL KUMAR VIRMANI &amp; ORS [CIVIL APPEAL NO.1779 of 2021]. 
The facts of the case were that 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.

The Hon’ble Supreme Court observed that a careful reading of Section 35(1) 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.

Additionally, the Hon’ble Supreme Court observed that 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.

Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order 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.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 The facts of the case were that 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. 
The Hon’ble Supreme Court observed that a careful reading of Section 35(1) 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.

Additionally, the Hon’ble Supreme Court observed that 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.

Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order 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.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble Supreme Court observed that a careful reading of Section 35(1) 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. 
Additionally, the Hon’ble Supreme Court observed that 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.

Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order 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.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 Additionally, the Hon’ble Supreme Court observed that 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. 
Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order 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.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 Finally, the Hon’ble Supreme Court allowed the present appeal, and the impugned order 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.