BRIGADE ENTERPRISES LIMITED versus ANIL KUMAR VIRMANI & ORS.

Citation: [2021] 13 S.C.R. 940 · Decided: 17-12-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 13 S.C.R.
BRIGADE ENTERPRISES LIMITED
v.
ANIL KUMAR VIRMANI & ORS.
(Civil Appeal No. 1779 of 2021)
DECEMBER 17, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
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
[2021] 13 S.C.R.940
940
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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.
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.
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 c

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