The main grievance of the appellant builder, 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 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. This was the issue raised in Brigade Enterprises Ltd. vs Anil Armani Virmani & Ors. [Civil Appeal 1779 of 2021]
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 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.
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.
The court took a hypthetical situation as an example a case where a residential apartment vis 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).
Section 35: Manner in Which Complaint shall be Made.
Section-35. (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;
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. 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).
Therefore, the court observed that 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.
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.
Therefore, the Hon’ble Supreme Court was 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.
In view of the above, the appeal was allowed, the impugned order of the National Commission was 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.
Justice Hemant Gupta
Judge, Supreme Court of India
Justice V. Ramasubramanian
Judge, Supreme Court of India
Judges Image: Tribune India
Photo by Tierra Mallorca on Unsplash
