Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 indulgence of the Commission to compute the delay in respect of each case, on the basis of formulae 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. The relevant portion of paragraph 41 of the complaint reads as follows: “It is submitted that as per the Agreement terms reproduced above, OPs are committed to pay meager delay compensation 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 instalment is 18% per annum. It is clear that the balance of performance is over 180 times against the buyers who have been bearing the brunt of the absolute mismanagement of project by the OPs. The buyer is not only patiently waiting for the possession but also gets a double whammy to keep paying all the instalments without enjoying the property. Of the total number of complainants those who have preferred to approach this Hon’ble Forum in this instant Complaint, the aggregate value of sale for 51 complainant-buyers alone, is about Rs. 66 Crore whereas the aggregate amount disbursed by the OP so the same buyers, in the name of Delay Compensation is a meager, 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 paragraph 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 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.
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 District Commission, on behalf of, or for the benefit of, all consumers 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 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.
17. 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. Order I Rule 8 reads as follows:- “8. One person may sue or defend on behalf of all in same 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 interested; (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 permission or direction is given under sub-rule (1), at 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 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 suit 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 agreement, 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 interested 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 defence, 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 binding on all persons on whose behalf, or for whose benefit, the suit 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 either 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 be 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 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.
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 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.
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 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 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. 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 provision must receive an interpretation which will subserve the object 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) 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 claimed and the pleadings that pinpoint 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 under 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 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 those 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 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.
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 the application under Section 35(1)(c) is held liable to be rejected, 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 under 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 to in sub-clause (v) of clause (5) of section 2, the provisions of Order I Rule 8 of the First Schedule to the Code of Civil 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 or 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 of 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 is 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 the benefit of, all consumers so interested; or (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 prescribed.
34. 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 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.
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 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 is purchased by the husband and wife jointly or by a parent and child BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.] 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).
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 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 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 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 application before the National Commission. They are entitled to be impleaded.
41. 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 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. 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 application, 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.]