MAINTAINABILITY
OF JOINT CONSUMER COMPLAINTS BEFORE NATIONAL COMMISSION FOR CONSUMER DISPUTES
The Supreme
Court has laid down the parameter under Section 12 (1) (c) of Consumer
Protection Act
ANIL
K KHAWARE
ADVOCATE
The Consumer Protection Act 1986 is now transformed
into The Consumer Protection Act 2019 is notified on 20TH July 2020 and
there has been a wholesome change in the Act. The 2019 Act inter alia has also phenomenally
enhanced the pecuniary limits of jurisdiction before the Consumer Commissions
as per the new Act of 2019 and the pecuniary limits as set out in both the Acts
are illustrated for comparison as under:
|
NAME OF
CONSUMER COMMISSION* |
Earlier
pecuniary limit (Rs)- in Consumer Protection Act 1986 |
Pecuniary
Limit (After enactment of Consumer
Protection Act 2019 |
|
DISTRICT COMMISSION* |
Up to
20,00,000/ ( Rs Twenty Lakhs) |
1,00,00,000/-(
Rs One Crore only) |
|
State
Commission |
Rs 20,0001
to Rs 1,00,00,000/ (Rs One Crore)- |
1,00,00,001
to Rs 10,00,00,00/-( Rs Ten Crore |
|
National
Commission |
Rs One Crore
and above |
Rs Ten Crore
and above |
*The
District Forum is also now named as District Commission, after the notification
of Consumer Protection Act 2019.
A PRELUDE
It may be noted that there is increase in
pecuniary jurisdiction, Five (5) to Ten (10) fold and therefore, the small time
home buyer or such other claimant shall necessarily have to approach District
Commission upto the claim of Rs One (1) Crore. Thereafter, therefore the ladder
of appeals to State Commission and National Commission shall follow that may
relegate back his complaint for decades. For instance, if for a value of just
above Rs One (1) Crore, a consumer earlier could have approached National Commission
as a court of first instance and the decision of national Commission for all
practical purposes would have been final. But now, the same will have to be
filed before District Commission (up to the value of Rs 1 Crore) and State Commission and after the decision by
state commission the another ladder of appeal shall be available before
National Commission. In contrast, by virtue of the Consumer Protection Act,
1986 earlier any claim above Rs 20,00,000/- was to be filed before State
Commission and above Rs One (1) Crore before national Commission, , but now the
claim up to Rs One (1) Crore shall have to be field before District Commission.
The delay in the decision shall therefore be inbuilt, in as much as a consumer
shall have to travel to multiple forums by virtue of appeal and yet another
appeal, before the issue could attain finality. It may be noted that there is
provision of appeal before the hon’ble Supreme Court u/s 67 of the Consumer
Protection Act 2019 against the order passed by National Commission, however,
very few cases goes up to Supreme Court and therefore, with the caveat as
aforesaid, generally the decision of National Commission for Consumer Disputes
shall be final.
The class action i.e a common cause emanating from
the proximate or common cause of various consumers could be clubbed together as
per Section 12(1) (C) of Consumer Protection act 1986 now correspond to section
35 of Consumer Protection Act
2019. The class action was permitted earlier vide amendment carried out in 1993
in the existing Act of 1986. In the New Act of 2019 the class action is
retained.
Section 12 (1) (c) of the Consumer Protection Act 1986
now corresponds to Section 35 (1)(C) of Consumer Protection Act 2019. This reads as:
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 any services provided or
agreed to be provided, may be filed with a District Commission by-
(a)…..
(b)…..
(c) 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.
The Consumer Protection Act
2019 had received the assent of President on 09.08.2019. The new Act so far as
the above provision is concerned was notified on 20th July 2020.
It is in this backdrop, that the provisions of the
Act as regards pecuniary limit is to be analysed vis a vis the outlet accorded
within the purview of joint complaint i.e class complaint, if the complaints by
various consumers have commonality. The class complaint as illustrated above was
inserted for the first time in Consumer Protection act 1986 vide Amendment
carried out in 1993 and section 12 (1) (c) was inserted in it. The Consumer
Protection Act retains that provision in Section 35(1) (c). In view of high
pecuniary value the complainants in original complaint could hardly approach
national Commission, since the pecuniary limit set out in this regard for
National Commission is Rs 10 Crore. Thus, whether it is the home buyer or other
class of consumers, the consumers shall be deprived of approaching National
Commission, directly , in view of very high pecuniary ceiling. Therefore, the
class consumer complaint/joint complaint is significant, since various
complainants, if there is commonality could come together and if various
complainants together have combined value of Rs 10 Crore, the class complaint
could still be filed in National Commission. What is class action? What
constitute class action? Who can join in class action? What are the legal
principles of class action? All such aspect needed analysis as the issue is of
very high importance In fact, the provision of joint complaint was already
contemplated in the meanwhile, where class cause or action was permitted
to join together and for instance, if 12 consumers having a claim of Rs 90
Lakhs each joins together in a class action, they may together join hands and approach
National Commission , rather than the District Commission. In such a case 90
Lakhs of Twelve (12) complaint shall have the pecuniary value of Rs 10.80 Crore
and thus rendering them eligible for preferring the complaint as a class action
before National Commission directly as a court of first instance. This may
curtail the time that could be consumed while complaint were to travel
different appellate ladder. The endeavour in this write up is to analyse the
same and also to highlight as to when such a class action can be permitted. The
judgments/ recitations of National Commission and hon’ble Supreme Court shall
be of paramount importance.
CLASS
ACTION
Class action cases contemplate commonality of facts and reliefs
sought in the proceedings, where all the members of the class have a common
grievance and some of the persons in the said group initiates proceedings
before courts in their representative capacity for other members of the class.
Class action proceedings provide the courts/forums with an opportunity to
adjudicate claims of similarly placed persons; a class action proceeding is
advantageous as it prevents initiation and adjudication of multiple proceedings
in courts but also allows the adjudicating court to asses and award claims for
all members of the class which in turn aids in reducing litigation, avoiding
multiplicity and
expediting the whole process.
It is worthwhile in the context to specify that the Code of
Civil Procedure, 1908 itself contains the provisions of class proceedings under
Order I Rule 8, CPC, however, the
provision were not in much use. Similarly, Companies Act, 2013 has introduced
Section 245 which also contains provisions whereby right to initiate class
action proceedings before the National Company Law Tribunal to shareholders and
depositors are permitted against the Company, its directors, auditors(auditing
firms) and experts, advisors, consultants and other persons.
Thus, it is not
without reasons that remedy to initiate class action cases was incorporated in
the Consumer Protection Act, 1986 through the Consumer Protection (Amendment)
Act, 1993 which inserted specific provisions for initiating proceedings before
the consumer forums by expanding the definition of 'complainant” under
the 1986 Act and inserted Section 2(1)(b)(iv) which stated "one
or more consumers, where there are numerous consumers having the same
interest;"
The Supreme Court had the opportunity to advert to a judgment
rendered by National Consumer Disputes Redressal Commission (NCDRC) captioned
as Ambrish Kumar Shukla 2017)
1 CPJ 1 (NC): 2016 SCC OnLine NCDRC 1117 and approved the law laid down by
the full bench of the NCDRC. It was held in Ambrish
Kumar Shukla (supra) held that the essential test for the consumer forum
while entertaining a class complaint is to consider the test of oneness of the
interest is akin to a common grievance against the same person; once the test
is satisfied in a class complaint, the matter ought to be adjudicated on merits
and proceeded to revive the class complaint and remanded for adjudication on
merits. The Supreme Court in Sobha
Hibiscus Condominium vs. Managing Director, Sobha Developers Ltd. and Ors reported as MANU/SC/0178/2020 as recently in February,
2020 had the occasion to examine the locus of an association to file a class
action/class complaint. The question before the court was whether an
association which was formed by virtue of any law or rule, wherein, the
membership was mandatory and not voluntary, could maintain a class complaint. The
court after examining the definition of complainant/consumer under the Consumer
Protection Act, 1986 and also the scope of provisions relating to representative
complaints concluded and held that since the definition of 'complainant' is
restrictive and not exhaustive or inclusive, hence associations which are not
'voluntary' in nature cannot maintain a complaint under the Consumer Protection
Act, 1986.
The hon’ble Supreme Court while quoting with
approval the law laid down by the full bench of the NCDRC in Ambrish Kumar Shukla (supra) held that
the essential test for the consumer courts while entertaining a class complaint
is to consider the test of oneness of the interest is akin to a common
grievance against the same person; once the test is satisfied in a class
complaint, the matter ought to be adjudicated on merits and proceeded to revive
the class complaint and remanded for adjudication on merits.
VIKRANT SINGH MALIK Vs Supertech Case: Legal Prism
The hon’ble Supreme Court, even more recently in
the year 2020, had the occasion to deal with appeal Vikrant Singh Malik & Ors Vs Supertech Limited and Others Civil
Appeal No. 3526 of 2016 against the judgment passed by National
Consumer Disputes Redressal Commission (NCDRC) whereby the NCDRC had declined permission
to the complainants to file a composite complaint under the provisions of
Section 12 (1) (C) of Consumer Protection Act 1986 (As it then was). The NCDRC was
pleased to dismiss the consumer complaint which that was filed before it by Twenty-Six
(26) flat buyers, on the ground that there was nothing common between the
complainants, so no permission can be granted to the above complainants to file
one complaint in view of Section 12(1)(c) of the Act, though, liberty wads
accorded to the complainants to institute individual complaints before the
appropriate forum.
Significantly, , the complaint before the NCDRC
instituted by Twenty-Six (26) flat buyers, who had booked flats in a
residential project (named ‘Oxford Square’) of the Supertech Limited ( Builder)
at Sector GH-06, 16B, Greater Noida,
Uttar Pradesh (also known as “Noida
Extension”).
An application under Section 12(1)(c) read with Section
2(1)(b)(iv) of the Act was filed on behalf of the complainants to enable them
to pursue the complaint jointly. That the deficiencies of services, unfair
trade practices and irregularities adopted by the Opposite Parties against the
Complainants are identical in nature in and the complainants shall rely on
common evidence and the issues raised
and the relief sought is also common to all the complainants. It was thus submitted
that under these facts and circumstances the Complainants have made the present
application seeking permission for instituting the present complaint jointly,
having commonality of interest. It
was stated that no prejudice shall be caused to the Opposite Party if the
Complainants are allowed to institute the present complaint jointly, however,
grave loss and injury shall be caused to the Complainants if the present
application is not allowed. That the balance of convenience also lies in favour
of the Complainants who have been suffering in the hands of the Opposite Party
who has offered the possession of their respective flats with delay and in the
garb of offering possession is now demanding illegal charges to the tune of Seven
(7) to Eight(8) Lacs per flat and is further resorting to illegal acts of
giving possession of the respective flats to the complainants in absence of an
occupancy certificate.”
The relief
sought in the application was in the following terms:
“a) Allow present application and admit the
present complaint of the Applicants which has been filed jointly with
commonality of interest”
The title of the application, the pleadings in
support and the relief sought indicate that the twenty-six complainants claimed
a commonality of interest between them on the basis of their grievances against
the first respondent, which formed the subject matter of the complaint.
The NCDRC came to the conclusion that the
application was not maintainable under Section 12(1)(c) of the Act on the
grounds that:
(i)
The agreements under which flats were
booked by each of the complainants were separate;
(ii)
The agreements were executed between
the first respondent and the complainants on different dates, between August
2010 to January 2014;
(iii)
The flats booked by the complainants
were of different sizes;
(iv)
The total cost of each flat was
different;
(v)
The offers of possession to the
complainants by the first respondent were made on different dates, between
January 2015 to April 2015; and
(vi)
Each of the complainants claimed a
different amount in compensation, ranging between Rs 7.31 Lakhs and Rs 26.70 Lakhs.
Noting these
differences, the NCDRC held that there was nothing common between the
complainants in terms of the date of the agreement, cost and size of the flats,
and the compensation claimed. It was on this basis that the consumer complaint
was held not to be maintainable. While dismissing the complaint, liberty was
granted to each of the complainants to file individual complaints before the
consumer forum having jurisdiction to entertain the complaint. The judgment of
the NCDRC has given rise to the present appeal.
Grounds of challenge RAISED BEFORE SUPREME COURT :
The appellant before the hon’ble Supreme Court had
assailed the judgment of National Commission on the following grounds:
(i)
The
judgment is contrary to a later decision
which has been rendered by its Full Bench in Ambrish Kumar Shukla v Ferrous
Infrastructure Pvt. Ltd. (2017) 1 CPJ 1 (NC): 2016 SCC OnLine NCDRC 1117 Among
the questions framed for decision by the Full Bench was the following:
“ (a) Whether a complaint under Section
12(1)(c) of the Consumer Protection Act is maintainable, in a case of allotment
of several flats in a project/ building, where the allotments/bookings/purchases
are made on different dates and/or the agreed cost of the flat and/or the area
of the flat is not identical in all the bookings/allotments/purchases.”
Answering the above question, the Full Bench of NCDRC
in Ambrish Shukla (Supra) held:
“13. As noted earlier, what is
required for the applicability of Section 12(1)(c) of the Consumer Protection
Act read with Order I Rule 8 of the Code of Civil Procedure is the sameness of
the interest i.e. a common grievance of numerous persons which is sought to get
redressed through a representative action. Therefore, so long as the grievance
of the consumers is common and identical relief is claimed for all of them, the
cost, size, area of the flat/plot and the date of booking/allotment/purchase, would
be wholly immaterial. For instance, if a builder/developer has sold 100 flats
in a project out of which 25 are three-bed room flats, 25 are two-bed room
flats and 50 are one-bed room flats and he has failed to deliver timely
possession of those flats, all the allottees irrespective of size of their
respective flats/plots, the date of their respective purchase and the cost
agreed to be paid by them have a common grievance i.e. the failure of the
builder/developer to deliver possession of the flat/plot sold to them and a
complaint filed for the benefit of or on behalf of all such consumers and
claiming same relief for all of them, would be maintainable under Section
12(1)(c) of the Consumer Protection Act. The relief claimed will be the
same/identical if for instance, in a case of failure of the builder to deliver
timely possession, refund, or possession or in the alternative refund with or
without compensation is claimed for all of them. Different reliefs for one or
more of the consumers on whose behalf or for whose benefit the complaint is
filed cannot be claimed in such a complaint.”
The Full Bench
decision in Ambrish Kumar Shukla (supra), the position of law was set at
rest for the NCDRC on 7th October 2016. The judgment impugned in the
appeal before supreme court in Vikrant
singh Malik (Supra) was rendered earlier on 19 February 2016. The
submission therefore was that the impugned judgment is contrary to the
principles enunciated in Ambrish Kumar Shukla and does not lay down the
correct position of law. The Supreme Court had the occasion to deal with Ambrish
Kumar Shukla ( Supra) in Anjum Hussain v Intellicity Business Park
Pvt. Ltd,
(2019) 6 SCC 519 which had taken note of the judgment delivered by the Full Bench
of the NCDRC in Ambrish Kumar Shukla (Supra) . Hence, it was urged that
it would be appropriate for supreme court to remit the proceedings back to the
NCDRC by allowing the complaint to proceed under the provisions of Section
12(1)(c). In this context, reliance was also placed on the provisions contained
in Section 13(6) read with Section 2(1)(b)(iv) of the Act.
The
averments of the respondent
Whereas according
to the respondent/opposite party, the NCDRC was justified in coming to the
conclusion that the complaint as instituted was not maintainable with reference
to the provisions of Section 12(1) (c). Though, originally the complaint was
filed by Twenty-Six complainants, after the decision of the NCDRC, only
twenty-one appellants have remained in the fray in the Civil Appeal which has
been filed before supreme Court. Even amongst the remaining Twenty-One (21) appellants,
only six have not taken possession, meaning thereby that the others have
resolved their grievances by taking possession from the first respondent.
As the NCDRC,
while rejecting the complaint, has found that the provisions of Section
12(1)(c) were not attracted on the grounds that there were separate agreements
with the flat buyers, each agreement was entered into on a different date, the
flat sizes and costs were different and the amount of compensation claimed by
each buyer was different. In forming this view, the NCDRC did not have the benefit
of the adjudication rendered subsequently by the Full Bench in Ambrish Kumar
Shukla (supra). The decision of the Full Bench has been cited with approval
in the decision of a two-judge Bench of this Court in Anjum Hussain (supra).
At this stage, the basic issue which falls for consideration in the present
appeal is whether the application that was filed on behalf of the appellants
fulfils the requirements of Section 12(1)(c). Section 12(1) of the Act reads as
follows:
“12. 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 Forum by—
(a)…….
(b)……;
(c)
one or more consumers, where there are numerous
consumers having the same interest, with the permission of the District Forum,
on behalf of, or for the benefit of, all consumers so interested; or
(d)
…………
Under clause
(c), a complaint can only be filed with the permission of the District Forum by
one or more consumers on behalf of or for the benefit of all consumers so
interested, where there are numerous consumers having the same interest. Hence,
the requirements for a complaint under Section 12(1)(c) are that::
(i)
it
can be filed by one or more consumers;
(ii)
it is filed for or on behalf of numerous
consumers who have the same interest; and
(iii)
it requires the permission of the District
Forum.
The
expression “complainant” is defined in Section 2(1)(b) of the Act thus:
“(b)
“complainant” means—
(i)
a consumer; or
(ii)
any voluntary consumer association registered under the Companies Act, 1956 (1
of 1956), or under any other law for the time being in force; or
(iii)
the Central Government or any State Government, who or which makes a complaint;
(iv)
one or more consumers, where there are numerous consumers having the same
interest;
(v)
in case of death of a consumer, his legal heir or representative;” (emphasis
supplied)14
Clause
(iv) of Section 2(1)(b) contemplates that the expression ‘complainant’ means inter
alia, one or more consumers, where there are numerous consumers having the
same interest.
Section 13(6)
of the Act, the provisions of Order I Rule 8 of the Code of Civil Procedure,
19088
are
made applicable where a complainant is a consumer referred to in Section
2(1)(b)(iv). Section 13(6) provides as follows:
“(6)
Where the complainant is a consumer referred to in sub-clause (iv) of
clause (b) of sub-section (1) of Section 2, the provisions of Rule 8 of
Order I 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 Forum thereon.”
Order I Rule 8
of the CPC deals with a situation where there are numerous persons having the
same interest in one suit. Order I Rule 8(1) provides 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;
(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.”
Under sub-rule
(3) of Order I Rule 8, any person on whose behalf, or for whose benefit, a suit
is instituted, or defended, under sub-rule (1), may apply to the court to be
made a party to such suit. Further, sub-rule (6) of Order 1 Rule 8 stipulates
that a decree passed in a suit under the 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.
In
Rameshwar Prasad Shrivastava v Dwarkadhis Projects Private Limited,
the hon’ble Supreme Court has described the relationship between Section
2(1)(b)(iv), Section 12(1)(c) and Section 13(6) of the Act in the following
terms:
“14. The
language used and the text in Section 13(6) is clear that wherever a complaint
is filed by a complainant in the category referred to in Section 2(1)(b)(iv),
the provisions of Order 1 Rule 8 CPC shall apply with the modification
that reference to suit or decree shall be construed as reference to a complaint
or order of the District Forum. The expression “with the permission of the
District Forum” as appearing in Section 12(1)(c) must be read along with
Section 13(6) which provides the context and effect to said expression. In our
view Sections 12(1)(c) and 13(6) are not independent but are to be read
together and they form part of the same machinery.”
Therefore, a complaint under Section 12(1)(c) can
be filed only with the permission of the District Forum. The procedural
requirements under Order I Rule 8 of the CPC are attracted as a consequence of
the provisions of Section 13(6) of the Act.
21 Section 12(1)(c) of the Act applies to a
situation where there are numerous consumers “having the same interest”.
In that case, a complaint may be filed by one or more consumers with the
permission of the District Forum “on behalf of, or for the benefit of, all
consumers so interested”. The test under Section 12(1)(c) is of the sameness
of the interest. The complaint is filed in a representative capacity, on
behalf of or for the benefit of all the consumers who are interested. Similarly,
under Section 2(1)(b)(iv), in defining the expression “complainant”, the
statute incorporates the identical test of the sameness of interest,
where there are numerous consumers. In such a situation, the expression
“complainant” has been defined, inter alia, to include one or more
consumers, each of whom has the same interest where there are numerous
consumers involved in the dispute.
The Full Bench
of the NCDRC dealt with the provisions of Section 12(1)(c) in its decision in Ambrish
Kumar Shukla (supra). Adverting to the judgment of the Supreme Court
judgment in T N Housing Board v T N Ganapathy (1990) 1 SCC 608,
the Full Bench of NCDRC in Ambrish Kumar Shukla(supra) held:
“11.
…The primary object behind permitting a class action such as a complaint under
Section 12(1)(c) of the
Consumer Protection Act being to facilitate the decision of a consumer dispute
in which a large number of consumers are interested, without recourse to each
of them filing an individual complaint, it is necessary that such a complaint
is filed on behalf of or for the benefit of all the persons having such a community
of interest. A complaint on behalf of only some of them therefore will not
be maintainable. If for instance, 100 flat buyers/plot buyers in a project
have a common grievance against the Builder/Developer and a complaint under
Section 12(1)(c) of the
Consumer Protection Act is filed on behalf of or for the benefit of say 10 of
them, the primary purpose behind permitting a class action will not be
achieved, since the remaining 90 aggrieved persons will be compelled either to
file individual complaints or to file complaints on behalf of or for the
benefit of the different group of purchasers in the same project. This, in our
view, could not have been the Legislative intent. The term ‘persons so
interested’ and ‘persons having the same interest’ used in Section 12(1)(c) mean, the persons having a common
grievance against the same service provider. The use of the words “all
consumers so interested” and “on behalf of or for the benefit of all consumers
so interested”, in Section 12(1)(c)
leaves no doubt that such a complaint must necessarily be filed on behalf of or
for the benefit of all the persons having a common grievance, seeking a
common relief and consequently having a community of interest against the same
service provider.”
This judgment of the Full Bench of the NCDRC was
cited by the Supreme Court in Anjum Hussain (supra). The Supreme Court had
held also cited its earlier decision in T N Housing Board (supra), noting
that the provisions of Order I Rule 8 have to be interpreted in a manner which
would subserve the object of the enactment. The Supreme Court has held by taking
note of the facts of the case ( Vikrant Singh Malik case) that the complaint
that has been filed by the appellants does not indicate that the grievances
which have been addressed before the NCDRC are on behalf of numerous consumers,
including the appellants. The reliefs in several prayer clauses are confined to
the twenty-six complainants, on whose behalf the complaint has been instituted.
The issue of parking charges, labour welfare charges , granting of license to
developer, club charges parking charges,
escalation charges, licence issues of granting
of licenses to the developer, delayed possession, payment of compensation were all
specifically in relation to the complainants only. The pleadings in the
complaint also indicated that they have been framed and drawn up to highlight
the specific grievances of only the complainants. They contain no averment that
the reliefs were sought on behalf or for the benefit all the consumers having
the same interest. The same was thus held to be not maintainable in terms of
section 12(1) ( C) of The Consumer Protection Act 1986.
ANJUM HUSSAI CASE AND VIKRANT SINGH MALIK CASE
DISTINGUISHED
The judgment rendered in ANJUM HUSSAIN CASE may be
further analyzed as regards maintainability as the application which was filed before the
NCDRC was styled as an application on behalf of the complainants under Section
12(1)(c) read with Section 2(1)(b)(iv), seeking leave to institute the
complaint jointly. The contents of the application also indicated that the case
of the complainants was that the reliefs which were sought were common to all
of them. Contrasted with the present case(Vikrant Singh Malik case) , the
complaint in Anjum Hussain (supra) had been instituted for the benefit
of the entire class of buyers who had booked shops/offices in a real estate
project consisting of residential units, shops and offices at Greater Noida. The complaint contained an
averment that its scope was not restricted to the complainants and that an
application seeking permission under Section 12(1)(c) was accordingly being
instituted. The distinction in the present case lies in the fact that the
pleadings in the complaint and application do not evince any intent to present
the complaint for or on behalf of the numerous consumers who share the same
interest. The complaint and application only seek to highlight the grievance of
Twenty-Six (26) complainants. They do not profess to possess a representative
character, which is an essential element of Section 12(1)(c) and of the
provisions of Order 1 Rule 8 of the CPC which find a reference in Section 13(6)
of the Act. In this context, the application though styled as one under Section
12(1)(c) was not referable to that provision. The essential ingredients of an
application under Section 12(1)(c) were not pleaded or established in the
application before the NCDRC. The application could not, in these
circumstances, have been treated as one referable to Section 12(1)(c).
It is thus held that the application that was
filed on behalf of the appellants purportedly under Section 12(1)(c) of the Act
was not maintainable having regard to the frame of the complaint, the nature of
the pleadings and the reliefs that were sought.
However, it was held that though the application
could have been dismissed, but rather than according liberty to prefer
complaint in District Forum, the National Commission should have dealt with the
complaint in accordance with law. The complaint was thus restored back to the
NCDRC for reconsideration based on the reasons that Ambrish Kumar Shukla (Supra)
judgment should be dealt with. The flat purchasers with distinct apartment-buyer
agreements, distinct dates of execution of the agreements, different prices and
areas of flats may yet have a commonality of interest. The test that has to be
applied is of the sameness of interest, and their interests in securing
the redressal of common grievances against a developer may coincide.
The settled legal position
The fall out of the
judgment of Ambrish Kumar Shukla (Supra) of National Commission as well as
judgments of hon’ble Supreme Court in Anjum Hussain v
Intellicity Business Park Pvt. Ltd (Supra) and Vikrant Singh Malik (Supra) has
settled the matter. On the basis of aforesaid therefore, the following
inferences emerges:
(i)
The class
complaint presupposes voluntary association and not a mandatory
association of consumers,
(ii)
The oneness
of interest of consumer shall be a sine
qua non,
(iii)
The
agreements should relate to a common project and multiple project could not be
clubbed,
(iv)
Different
entities as a builder having different constitution and different project
cannot be part and parcel of single complaint, since, this may lack commonality
which is a fait accompli for
preferring a class complaint,
(v)
The oneness
should be same and similar and not by way of implication and no different
projects could be merged in a same class complaint,
(vi)
The artificial conglomerate of
stakeholders cannot be clubbed,
(vii)
The
oneness and commonality of purpose should remain intact and not severed in the
midst,
(viii)
Permission
from District Forum (Commission)
shall be necessary before or at the time of preferring class complaint before
higher commission.
The
section 12 (1) (C) of 1 Consumer Protection Act, 1986, corresponding to section
35 (1) (C) in the Consumer Protection Act 2019 clearly stipulates that
consumers in class case could be more than one but with same interest, with
permission of District Commission and on behalf of all consumers or for
the benefit of all consumers the complaint could be filed. What are the
pre-requisites of the Consumer Protection act 2019 has got its elaboration and
interpretation from the hon’ble National Commission and finally from hon’ble
Supreme Court. No departure from above is therefore envisaged
REMARK
It is perceived of late
that despite obvious prescription of a class action, different set of consumers
of different projects undertaken by different entity at different places and by
virtue of different sizes of flat are sought to be clubbed together. Making or
suggesting to make such a mosaic shall be a recipe of needless ambiguity . The
flooding of such cases are not the object of class action case and such a
conglomeration with virtually no linkage with each other are flooded in the
Consumer Commissions which is without semblance of substance and commonality
and are not likely to be entertained. No doubt, enhancing the pecuniary limit
has caused a great deal of consternation amongst consumers, but what is to be
borne in mind that the class action can be permitted only in sync with Section
12 (1)(c) ( now as per section 35(1) (C) as per the Consumer Protection Act
2019) and either the same has to be strictly preferred as per the provision of
aforesaid section or not at all. There is no midway to meddle as law and its
object is to be construed strictly and not laterally.
In this backdrop, the
joint complaint as a class action shall be of significance, provided the prescription
of section 35(1) (c) is attracted and the jurisdiction u/s 35 (1) (C) is not
sought to be invoked in cavalier manner. The class action, brought in 1986 Act
by way of amendment only in 1993 itself, but the same is retained in Consumer
Protection act 2019 and that is welcome. The class action and joint complaint
may thus accord leverage to consumers, but, only if the same strictly falls
within the dimension as is laid down by the hon’ble Supreme Court in the dicta
as illustrated above. This is so, as pith and substance of the object are to meet
the requisite laid down in the Consumer Protection act 2019 and the precedents
by virtue of judicial dicta.
References:
1. Consumer
Protection Act 2019
2.
Ambrish Kumar Shukla(2017) 1 CPJ 1 (NC): 2016 SCC OnLine NCDRC 1117
3. Sobha Hibiscus Condominium vs. Managing Director, Sobha
Developers Ltd. and Ors reported as
MANU/SC/0178/2020
4. Vikrant
Singh Malik and Others Versus Supertech Limited & Ors .Civil Appeal No.
3526 of 2016
5.
Anjum Hussain v
Intellicity Business Park Pvt. Ltd, (2019) 6 SCC 519
6.
Rameshwar Prasad
Shrivastava vs. Dwarkadhis Projects Private Limited, (2019) 2 SCC 417
7. T N
Housing Board v T N Ganapathy (1990) 1 SCC 608
Very informative post
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