| Headnote |
Consumer Protection Act, 2019: s.35(1)(c): Representative Suit – Appellant-builder launched project for construction of residential complex, comprising of 1134 units in three blocks namely Amber block, Blue block, and Crimson block – 91 persons who purchased 51 residential apartments, in a residential complex joined together and filed a consumer complaint before the National Consumer Disputes Redressal Commission to seek compensation on the ground of delay in handing over the possession by appellant – Consumer complaint was accompanied by an application under s.35(1)(c), seeking permission of 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 purchased apartments in the same complex – National Commission allowed application under s.35(1)(c) – Challenging the said application, appellant filed instant appeal – Held: s.35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested – The sine qua non for invoking s.35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest – s.38(11) of the Consumer Protection Act, 2019 makes the provisions of Or.I r.8 of CPC applicable to cases where the complainant is a consumer referred to in s.2(5)(v) – Explanation under Or.I r.8 distinguishes sameness of interest from sameness of the cause of action – Since “sameness of interest” is the prerequisite for an application under Or.I r.8, CPC read with s.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 – Total number of residential apartments constructed were 1134 but there were no pleadings in regard to 386 apartments of Amber block – Even in respect of the owners of the remaining 748 residential apartments in blue block and Crimson block, the complaint did 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 period of delay in completion of project and handing over of possession also does not appear to be uniform in all 1134 cases – Respondents cannot project sameness of interest for the purchasers – Hence, National Commission should not have granted permission to respondents to file the complaint in a representative capacity – Complaint filed by the respondents to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers. A Consumer Protection Act, 2019 – s.35(1)(c) – Interpretation of – Sine qua non for invoking s.35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest – Interestingly, s.35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and (ii) “for the benefit of” – A complaint filed under s.35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest – Or.I r.8, CPC, unlike s.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 pre- requisite for an application under Or.I r.8, CPC read with s.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. D Consumer Protection Act, 2019: s.35(1)(c) – Sameness of interest – The period of delay in the completion of project and handing over of possession, does not appear to be uniform in all 1134 cases – Complainants cannot project 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. Consumer Protection Act, 1986: Consumer Protection Act, 2019 – s.12(1)(c) of the 1986 Act or s.35(1)(c) of the 2019 Act – For allowing an application under s.12(1)(c) of the 1986 Act or s.35(1)(c) of the 2019 Act, the pleadings and the reliefs are to be considered – If so considered, National Commission could not have granted permission to the respondents in this case, to file the complaint in a representative capacity for and on behalf of the owners of all the 1134 flats. Consumer Protection Act, 2019: s.2(5)(i), s.36(1) – Interpretation of – Consumer – It is true that s.2(5)(i) uses the expression “a consumer” – If the vowel “a” and the word “consumer” appearing in s.2(5)(i) are to be understood to exclude more than one person, it will result in a disastrous consequence while reading s.2(5)(vi) – s.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 s.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 – Anything repugnant cannot be read in the subject or context of s. 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 – The proper way of interpreting s.35(1) read with s.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. |
