The instant petition challenged an order of the National Consumer Disputes Redressal Commission passed under Section 35(1)(c) of Consumer Protection Act allows 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. Hence the present appeal. The facts were that :91 persons who purchased 51 residential apartments in a residential complex promoted by the appellant joined together and filed a consumer complaint at the national consumer disputes redressal commission. 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, not only of 91 applicants, but of numerous other consumers who have purchased apartments in the same complex. Though the builder, appellant, objected to the application, the commission allowed the application, hence the appeal. 

The respondents' major claim for compensation was based on the builder's failure to hand over possession on time. Pleadings of the respondent were that the appellant launched a project named “Brigade Lakefront” comprising about 1100 units in three blocks and that the builder was guilty of unfair trade practice as the  terms and 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.

Join Now! India's Largest directory of lawyers and legal professionals

Mr. Jayant Bhushan, learned counsel for the appellant contended 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. He further contended that there was  no commonality of interest as some apartment owners invoked the jurisdiction of Karnataka State consumer disputes redressal commission to seek redressal of separate grievances.

Mr. Ajith Kumar Sinha, the learned counsel for the respondents submitted that  the respondents have the sameness of interest with the buyers of all the 1134   apartments, which is sine qua non  for  maintaining an application under Section 35(1)(c).

When analysing the facts it is clear that the project comprises three blocks namely Amber block, Blue block and Crimson block. None of the owners of these 386 apartments in Amber block have joined with the respondents-complainants and 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. 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. 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 bench held that 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. Hence, the appeal is allowed and held that the complaint filed by the respondents shall be treated as a joint complaint filed on behalf of only the respondents and not in a representative capacity. 

For reading the complete judgment, please click below:-

Brigade Enterprises Limited v. Anil Kumar Virmani & Ors. [Civil Appeal No. 1779 of 2021]