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 :-