Brigade Enterprises Limited v. Anil Kumar Virmani & Ors.
V. RAMASUBRAMANIAN, J.
1. Challenging an order of the National Consumer Disput es
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 be half 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 all owed
the application by relying upon the decision of this Court in the Chairman,
Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy 1 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.
1 (1990) 1 SCC 608
949
5. The main grievance of the appellant-builder, as projecte d by
Mr. Jayant Bhushan, learned senior counsel is that out of total of 1134
apartments constructed and sold by them, the owners of mere ly 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 re presentative
capacity. It is also the contention of the learned senior counsel for the
appellant that there was no commonality of interest or grieva nce, 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.2 It is also his contention that the respondents have the sameness
of interest with the buyers of all the 1134 apartments, whi ch 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 comp laint
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 graciousl y 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;
2 (2020) 9 SCC 145
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
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
circumstances of the case, in favour of the complainants
and against the OP.”
8.The pleadings on the basis of which the respondents sought the
aforesaid prayers, in brief, are as follows: (i) that the appellant launched
the subject project in the year 2013; (ii) 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; (iii) 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 Crimson block, also calle d
Building Nos.3 and 4 were to have Wings O, P, Q, R, S and T; (iv) that
in respect of the flats in Blue block, the promised delive ry date was
30.06.2016 with a six months grace period; (v) that though the completion
certificate and structural stability certificate were a lso 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 completion certificate for the Crimson block was issue d by the
architect on 10.08.2018, the occupancy certificate was issued partially
on 28.12.2018; (viii) that the builder was guilty of unfair trade practice,
inasmuch as the terms and conditions of the agreement pre scribed a
paltry compensation of Rs.5 per square feet to the purchasers, i f 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
951
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 consume r
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 extracted the prayers
made in the original complaint. Interestingly the prayer porti on 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 11 34 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, n ot
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 Offer ed;
It would be relevant to state that the meaning and natu re of
‘possession’ as stated by the complainants in this para wou ld
mean legal possession only where said possession had been
given or offered to be given upon confirmation of readi ness
of the flat for possession, in adherence to Schedul e of
Construction Agreement.
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
46. It is clearly and unambiguously inferred that the Buy ers
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 acco rdance
with clauses of the agreement for construction. Hen ce,
possession without registering and executing sale d eed 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 Occ upancy
Certificate shall be reckoned as the pivotal event to ascer tain
delayed possession and calculating compensation bas ed
thereon.”
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 apartment s. 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 f ormulae
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 concerned. Th e relevant
portion of paragraph 41 of the complaint reads as follows:
“It is submitted that as per the Agreement terms repro duced
above, OPs are committed to pay meager delay compensati on
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 instal ment is
18% per annum. It is clear that the balance of performa nce
is over 180 times against the buyers who have been bearin g
the brunt of the absolute mismanagement of project by the
OPs. The buyer is not only patiently waiting for the possess ion
but also gets a double whammy to keep paying all th e
instalments without enjoying the property. Of the total numbe r
of complainants those who have preferred to approach this
Hon’ble Forum in this instant Complaint, the aggregate val ue
953
of sale for 51 complainant-buyers alone, is about Rs. 66 Cror e
whereas the aggregate amount disbursed by the OP so the
same buyers, in the name of Delay Compensation is a meag er,
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 respondents-complainants, 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 completion of the project,
with reference to the timeline of events found in paragr aph 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.
13. In view of the fact that none of the owners of the apartments
in Amber block have joined in the filing of the complaint, coupled with
the fact that there is no pleading with respect to t he 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 3 86
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 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
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
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”. Clause (c) of Sub-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 D istrict
Commission, on behalf of, or for the benefit of, all consum ers
so interested.”
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.
16. Section 38(11) of the Consumer Protection Act, 2019 makes
the provisions of Order I Rule 8 of the First Schedule to t he Code of
Civil Procedure, 1908 applicable to cases where the complainan t 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 b oth
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 capac ity.
Order I Rule 8 reads as follows:-
“8. One person may sue or defend on behalf of all in sa me
interest.—(1) Where there are numerous persons 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 interest ed;
(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 permissi on or
direction is given under sub-rule (1), at the plaintiff’s expense,
give notice of the institution of the suit to all p ersons so
interested, either by personal service, or, where, by reason of
955
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 sui t
is instituted, or defended, under sub-rule (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 sub-rule (1), and no such suit shall be withdrawn under
sub-rule (3), of rule 1 of Order XXIII, and no agre ement,
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 inter ested in the
manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit
does not proceed with due diligence in the suit or d efence,
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 b inding
on all persons on whose behalf, or for whose benefit, the sui t
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;
(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;
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
(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;
(v) any person on whose behalf or for whose benefit the suit is
instituted or defended may seek to be made a party to the
suit;
(vi) abandonment of the whole or part of the claim, 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 eithe r by
personal service or by public advertisement.
(vii) the Court may at any time substitute the person suing or
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 b e
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 necessar y
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 o ne 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 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 .
21. Since “sameness of interest ” is the pre-requisite for an
application under Order I Rule 8, CPC read with Section 35(1)(c) of the
957
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. Even in respect of the owners of the remaining 7 48
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 no t equal to
sameness of interest. The existence of sameness of interest , has been
questioned by the appellant-builder 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; (ii) those who accepted without protest; and (iii) those
who 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 al l 1134
cases. The respondents-complainants cannot project 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 appell ant-builder.
Some of the purchasers of flats may also have other compla ints and
their right to proceed against appellant cannot be stult ified by a few
individuals invoking Section 35(1)(c). That a few purchasers have chosen
to approach the Karnataka State Consumer Disputes R edressal
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.
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
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. 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 prov ision
must receive an interpretation which will subserve the ob ject 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, (i) that what was questioned in a representative suit in that
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) thatin 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 claimed and the pleadings that p inpoint the
sameness of interest.
26. In Rameshwar Prasad Shrivastava & Ors. vs. Dwarkadhis
Projects Private Limited & Ors. 3, 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 un der
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.
27. In Anjum Hussain and Ors. vs. Intellicity Business Park
Private Limited and Ors. 4, this Court reversed the decision of the
3 (2019) 2 SCC 417
4 (2019) 6 SCC 519
959
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
and Ors. (supra), this Court upheld the order of the National 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 th ose 26
complainants.
29.All the above decisions show that for allowing an application
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 t he
respondents in this case, to file the complaint in a representative capacity
for and on behalf of the owners of all the 1134 flats.
30.That takes us to the next question as to the fate of the complaint
filed by the respondents. It is sought to be contended that once t he
application under Section 35(1)(c) is held liable to be re jected, 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—
(i) a consumer; or
(ii) any voluntary consumer association registered u nder
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
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
(vi) in case of death of a consumer, his legal heir or legal
representative; or
(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 t o in
sub-clause (v) of clause (5) of section 2, the provision s of
Order I Rule 8 of the First Schedule to the Code of Ci vil
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:
“35. Manner in which complaint shall be made.- (1) A
complaint, in relation to any goods sold or delivered or
agreed to be sold or delivered or any service provided o r
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 o f such
goods or service;
(b) any recognised consumer association, whether the
consumer to whom such goods are sold or delivered
or agreed to be sold or delivered or such service i s
provided 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
consumers having the same interest, with the permission
of the District Commission, on behalf of, or for th e
benefit of, all consumers so interested; or
961
(d) the Central Government, the Central Authority or the State
Government, as the case may be:
Provided that the complaint under this sub-section may be
filed electronically in such manner as may be prescrib ed.
34. A careful reading of the above provisions would show that
there is no scope for the contention that wherever th ere 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 ca nnot even
join together and file a single complaint, but should take recourse only to
independent and separate complaints.
35.It is true that Section 2(5)(i) uses the expression “a consumer”.
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 subje ct 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
is purchased by the husband and wife jointly or by a parent and c hild
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]
jointly. If they have a grievance against the builder, both o f 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; (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.
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 Se ction 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 Sub-sections (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.
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) 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 compla int and not a
complaint in a representative capacity on behalf of 1134 purc hasers.
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 impugne d order,
advertisements were issued and the intervenors have alr eady filed
impleadment application before the National Commission. The y are
entitled to be impleaded.
963
41. In view of the above, the appeal is allowed, the impugne d
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 co mplaint
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 herein, in view of what is stated in their ap plication,
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.
Devika Gujral Appeal allowed.
BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR
VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]