Consumer Protection Act, 2019: s.35(1)(c): Representative Suit – Appellant-builder launched project for construction of residential complex, comprising of 1134 units in three blocks namely Amber block, Blue block, and Crimson block – 91 persons who purchased 51 residential apartments, in a residential complex joined together and filed a consumer complaint before the National Consumer Disputes Redressal Commission to seek compensation on the ground of delay in handing over the possession by appellant – Consumer complaint was accompanied by an application under s.35(1)(c), seeking permission of 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 purchased apartments in the same complex – National Commission allowed application under s.35(1)(c) – Challenging the said application, appellant filed instant appeal – Held: s.35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested – The sine qua non for invoking s.35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest – s.38(11) of the Consumer Protection Act, 2019 makes the provisions of Or.I r.8 of CPC applicable to cases where the complainant is a consumer referred to in s.2(5)(v) – Explanation under Or.I r.8 distinguishes sameness of interest from sameness of the cause of action – Since “sameness of interest” is the prerequisite for an application under Or.I r.8, CPC read with s.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 – Total number of residential apartments constructed were 1134 but there were no pleadings in regard to 386 apartments of Amber block – Even in respect of the owners of the remaining 748 residential apartments in blue block and Crimson block, the complaint did 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 not equal to sameness of interest – The period of delay in completion of project and handing over of possession also does not appear to be uniform in all 1134 cases – Respondents cannot project sameness of interest for the purchasers – Hence, National Commission should not have granted permission to respondents to file the complaint in a representative capacity – Complaint filed by the respondents to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers.
Consumer Protection Act, 2019 – s.35(1)(c) – Interpretation of – Sine qua non for invoking s.35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest – Interestingly, s.35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and
(ii) “for the benefit of” – A complaint filed under s.35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest – Or.I r.8, CPC, unlike s.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 – Since “sameness of interest” is the prerequisite for an application under Or.I r.8, CPC read with s.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.
Consumer Protection Act, 2019: s.35(1)(c) – Sameness of interest – The period of delay in the completion of project and handing over of possession, does not appear to be uniform in all 1134 cases – 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. Consumer Protection Act, 1986: Consumer Protection Act, 2019 – s.12(1)(c) of the 1986 Act or s.35(1)(c) of the 2019 Act – For allowing an application under s.12(1)(c) of the 1986 Act or s.35(1)(c) of the 2019 Act, the pleadings and the reliefs are to be considered – If so considered, National Commission could not have granted permission to the respondents in this case, to file the complaint in a representative capacity for and on behalf of the owners of all the 1134 flats.
Consumer Protection Act, 2019: s.2(5)(i), s.36(1) – Interpretation of – Consumer – It is true that s.2(5)(i) uses the expression “a consumer” – If the vowel “a” and the word “consumer” appearing in s.2(5)(i) are to be understood to exclude more than one person, it will result in a disastrous consequence while reading s.2(5)(vi) – s.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 – Under s.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 – Anything repugnant cannot be read in the subject or context of s. 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 proper way of interpreting s.35(1) read with s.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.
Allowing the appeal, the Court
HELD: 1. 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 the 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 386 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. [Para 13][953-E-G]
2. 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 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”. 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. [Paras 14, 15][953-G-H; 954-A-C]
3. Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 applicable to cases where the complainant 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. 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. [Paras 16, 17][954-D-E]
4. 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. The Explanation under Order I Rule 8, is a necessary 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 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 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. [Paras 19, 20][956-E-G]
5. 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 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 748 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 not 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. [Para 21][956H; 957-A-D]
6. 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 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. The delay in handing over possession need not necessarily be the only deficiency in service on the part of the appellant-builder. Some of the 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). That a few purchasers have chosen to approach the Karnataka State Consumer Disputes Redressal 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. [Paras 22, 23][957-E-H]
Chairman, Tamil Nadu Housing Board, Madras v. T.N. Ganapathy (1990) 1 SCC 608 : [1990] 1 SCR 272; Chairman, Tamil Nadu Housing Board, Madras v. T.N. Ganapathy and Vikrant Singh Malik & Ors. v. Supertech Limited & Ors. (2020) 9 SCC 145; Rameshwar Prasad Shrivastava & Ors. v. Dwarkadhis Projects Private Limited & Ors. (2019) 2 SCC 417 : [2018] 14 SCR 1118; Anjum Hussain and Ors. v. Intellicity Business Park Private Limited and Ors. (2019) 6 SCC 519 : [2019] 7 SCR 1036 – referred to.
7. 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 the respondents in this case, to file the complaint in a representative capacity for and on behalf of the owners of all the 1134 flats. [Para 29][959-C-D]
8. 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 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.[Para 34][961-B-D]
9. 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. [Para 35][961-E-F]
10. 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. [Para 36][961-F-G]
11. 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. [Para 38][962-C-D]
12. 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 Section 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 Subsections (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. Therefore, 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 complaint and not a complaint in a representative capacity on behalf of 1134 purchasers. [Paras 39, 40][962-D-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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