Supreme Court of India
Judges:
Jts. Hemant Gupta and Jts. V. Ramasubramanian
Introduction
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.
Facts
The appellant launched
the subject project in the year 2013; 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.
that in respect of the
flats in blue block, the promised delivery date was 30.06.2016 with a six-month
grace period. 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.
The builder was guilty of
unfair trade practice, in as much 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.
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.
Appellant
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 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.
Respondent
The issue is no longer
res integra in view of the decisions of this Court in Chairman, Tamil Nadu
Housing Board, Madras v. T.N. Ganapathy and Vikrant Singh Malik v. Supertech
Limited. 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.
Observation
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. If both events are done on separate times, the
later date of the two would prevail.
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
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”.
Section 38(11) of the
Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the
First Schedule to the Civil Procedure Code, 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.
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.
Reasoning
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.
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 delay in handing over
possession need not necessarily be the only deficiency in service on the part
of the appellant-builder
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. A joint complaint stands in contrast to a complaint
filed in a representative capacity.
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). 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.
Judgement
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 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.
Difference between joint
complaint and representative suit
When joint complaint is
filed the relief sought would be applicable only to those who are party to the
suit, i.e., those who have collectively filed the complaint. Since all these
people are parties to the dispute therefore no permission is required to file
the joint complaint.
Whereas the
representative suit is binding on all those who are not even a party to the
proceeding as the relief sought is on behalf of all. Since the judgement would
affect the unnamed consumers as well therefore it is mandatory to have
permission of the court for filling such complaint.
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