Brigade Enterprises Limited vs. Anil Kumar Virmani and Ors. - (Supreme Court) (17 Dec 2021)

Sine qua non for invoking Section 35(1)(c) of CP Act, 2019 is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest

MANU/SC/1285/2021

Consumer

The builder has come up with the present appeal challenging an order of the National Consumer Disputes Redressal Commission, passed under Section 35(1)(c) of the Consumer Protection Act, 2019 (CP Act), 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 main grievance of the Appellant-builder is that out of total of 1134 apartments constructed and sold by them, the owners of merely 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 representative capacity.

Section 35(1)(c) of the Act, 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. 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. Order I Rule 8 of 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.

Since “sameness of interest” is the prerequisite for an application under Order I Rule 8, CPC read with Section 35(1)(c) of the Consumer Protection Act, 2019, it was necessary for the Respondents to include in the consumer complaint, sufficient averments that would show sameness of interest.

The 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 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. Appeal allowed.

Tags : JOINT COMPLAINT FILING OF CONDITIONS