Brigade Enterprises Limited vs Anil Kumar Virmani

BRIGADE ENTERPRISES LIMITED ... Appellant (s)

Versus

ANIL KUMAR VIRMANI & ORS. ... Respondent(s)

JUDGMENT

V. Ramasubramanian, J.

1. 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

apartments in the residential complex developed by them, to file a

consumer complaint in a representative capacity, on behalf of and Signature Not Verified

for the benefit of more than about 1000 purchasers, the builder has Digitally signed by Jayant Kumar Arora Date: 2021.12.17 16:45:17 IST Reason: 1 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 behalf 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

2 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 allowed

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.

Aggrieved by the said Order, the builder has come up with the above

appeal.

5. The main grievance of the appellant­builder, as projected by

Mr. Jayant Bhushan, learned senior counsel 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. It is also the contention of the learned

senior counsel for the appellant that there was no commonality of

1 (1990) 1 SCC 608

3 interest or grievance, 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, which 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

2 (2020) 9 SCC 145

4 complaint 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 graciously 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;

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 cir­ cumstances of the case, in favour of the complainants and against the OP.”

8. The pleadings on the basis of which the respondents sought

5 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 called 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 delivery date was 30.06.2016 with a six months grace

period; (v) that though the completion certificate and structural

stability certificate were also 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

6 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; (viii) that the builder was guilty of unfair

trade practice, inasmuch as the terms and conditions of the

agreement prescribed a paltry compensation of Rs.5 per square feet

to the purchasers, if 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 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 consumer

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

7 extracted the prayers made in the original complaint. Interestingly

the prayer portion 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 1134 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, not 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 Offered;

It would be relevant to state that the meaning and nature of ‘possession’ as stated by the complainants in this para would mean legal possession only where said possession had been given or offered to be given upon

8 confirmation of readiness of the flat for possession, in adherence to Schedule of Construction Agreement.

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 possession and sale deed registration have to be done in unison in accordance with clauses of the agreement for construction. Hence, possession without registering and executing sale deed 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 Occupancy Certificate shall be reckoned as the pivotal event to ascertain delayed possession and calculating compensation based 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

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

9 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 complainant­buyers 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 respondents­complainants, 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

10 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

11 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 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.”

12

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 two­way 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;

13

(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 sub­rule (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 sub­rule (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 sub­rule (1), and no such suit shall be withdrawn under sub­rule (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 sub­rule (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;

14 (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;

(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

15 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

16 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 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. 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.

17 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 appellant­builder

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 respondents­complainants cannot project

18 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

appellant­builder. 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.

24. Reliance is placed by the learned senior counsel for the

respondents, upon the Judgment of this Court in Chairman,

19 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

20 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

21 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

22 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

(vi) in case of death of a consumer, his legal heir or legal represen­ tative; or

23

(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 sub­clause

(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 con­ 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 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 con­ sumers having the same interest, with the permission of

24 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 sub­section 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

25 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.

26

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 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

27 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 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.

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

28 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

29 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.

…..…………....................J. (Hemant Gupta)

.…..………......................J. (V. Ramasubramanian)

DECEMBER 17, 2021 NEW DELHI.

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