In the judgment of the case – Anjum Hussain & Others v. Intellicity Business Park Pvt. Ltd. & Others, delivered on May 10, 2019, Justice Arun Mishra and Justice Uday Umesh Lalit , at the Supreme Court, after being critical of the “totally erroneous approach” by the National Consumer Disputes Redressal Commission (NCDRC) in this case, have held that in Class Action Suits , oneness of the interest is akin to a common grievance against the same person.
The Supreme Court has upheld the view taken by a judgment of a Full Bench of the National Commission in the case – Ambrish Kumar Shukla and Others v. Ferrous Infrastructure Pvt. Ltd. ( Consumer Case No. 97 of 2016, decided on October 7, 2016).In that decision, the NCDRC FB derived support from the Supreme Court’s judgment in the case – The Chairman, Tamil Nadu Housing Board , Madras v. T.N.Ganpathy (1990) 1 SCC 608.
In that judgment, the NCDRC, while dealing with the very same issue observed:
“10. Since by virtue of section 13(6) of the Consumer Protection Act, the provisions of the Order 1 Rule of the CPC apply to the consumer complaints filed by one or more consumers where there are numerous consumers having the same interest,the decision of the Hon’ble Supreme Court in the Tamil Nadu Housing Board case would squarely apply, while answering the reference.
The purpose of giving a statutory recognition to such a complaint being to avoid the multiplicity of litigation, the effort should be to give an interpretation which would sub serve the said objective, by reducing the increasing inflow of the consumer complaints to the Consumer Forums. The reduction in the number of consumer complaints will be cost effective not only for the consumers but also for the service provider.
11…… As held by the Hon’ble Supreme Court in the Tamil Nadu Housing Board decision, the interests of the persons on whose behalf the claim is brought must be common or they must have a common grievance which they seek to get redressed. The defect or deficiency in the goods purchased, or the services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the complaint is filed. Therefore, the oneness of interest is akin to a common grievance against the same person.
If for instance, a number of flats or plots in a project are sold by a builder/developer to a number of persons and he fails to deliver the possession of the said flats/plots within the timeframe promised by him, and a complaint is filed by one or more such persons, either seeking delivery of possession of flats/plots purchased by them and other purchasers in the said project, or refund of the money paid by them or the other purchasers to the developer/builder is sought , the grievance of such persons being common ,they would have same interest in the subject-matter of the complaint and sufficient community of interest to justify the adoption of procedure prescribed in Order 1 Rule 8 of the CPC , provided that the complaint is filed on behalf of or for the benefit of all the persons having common grievance against the same developer/builder, and identical relief is sought for all such consumers.
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 or for 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.”
The appeal in this case under section 23 of the Consumer Protection Act, 1986 filed by the appellants was directed against the Judgment and order of October 10, 2018 passed by the National Commission, New Delhi.
The appellant Anjum Hussain had booked an office space –about 440 sq. feet – in a project consisting of residential units, shops and offices launched by the respondent. The builder-Buyer Agreement was executed between the appellant Hussain and the respondent on December 2, 2013, whereunder the respondent was to deliver possession of the office unit within 4 years. Similar such Agreements were entered into between the appellant – 2 to 44 and the respondent in respect of various units in the same project.
Since the respondent had failed to honour its commitments of delivering possession min four years and the project was still at the stage of excavation, the 44 appellants filed case 2241/2018, seeking refund of the amounts paid by them to the respondent along with interest and compensation. An application under section 12(1)(c) of the Act was also filed by the appellants at the National Commission.
The National Commission concluded that the case could not be accepted as class action and dismissed the same. It was however, observed that the dismissal would not come in the way of the complainants availing such other remedies as would be open to them.
The dismissal of the case as class action was questioned in this appeal.
According to the National Commission, though all the appellants had common grievance that the respondent had not delivered possession of the respective units booked by them and thus the respondent was deficient in rendering service , it was not shown how many of the allottees had booked the shops/commercial units solely for the purchase of earning their livelihood by way of self-employment.
The Supreme Court reminded that following its decision in the Tamil Nadu Housing Board case, Full Bench of the National Commission had held that oneness of the interest is akin to a common grievance against the same person.
However, the National Commission in this case, completely lost sight of the principles so clearly laid down in the decisions referred to. In the Apex-Court’s view, National Commission’s approach in this case was “totally erroneous”.
Therefore, the Supreme Court allowed the appeal and set aside the order under appeal. The application preferred by the applicants under section 12 (1)(c) of the Act was held to be maintainable. The case 2241/2018 has been restored to the file of the National Commission with the direction that it should be proceeded with in accordance with law.
