Whether a common complaint by seeking permission under Section 12(1)(c) of the Consumer Protection Act , can be filed by all the consumers against their common reliefs against the common respondent before the comsumer court ? Apex court held yes

CIVIL APPEAL NO. 1676 OF 2019
ANJUM HUSSAIN & ORS. VS. INTELLICITY BUSINESS PARK PVT. LTD. & ORS.
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1676 OF 2019
ANJUM HUSSAIN & ORS. …Appellant(s)
VERSUS
INTELLICITY BUSINESS PARK PVT. LTD. & ORS. …Respondent(s)
J U D G M E N T
Uday Umesh Lalit, J.

  1. This appeal under Section 23 of the Consumer Protection Act,
    1986 (hereinafter referred to as the Act) is directed against the
    Judgment and Order dated 10.10.2018 passed by the National Consumer
    Disputes Redressal Commission, New Delhi (‘the National
    Commission’, for short) in Consumer Case No.2241 of 2018 preferred
    by the appellants.
  2. The appellant no.1 had booked an office space admeasuring
    about 440 sq.ft in a project consisting of residential units, shops
    and offices launched by the respondent. The Builder – Buyer
    Agreement was executed between the appellant no.1 and the
    respondent on 02.12.2013, whereunder the respondent was to deliver
    possession of the office unit within four years. Similar such
    Agreements were entered into between the appellant nos.2 to 44 and
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    the respondent in respect of various units from the same project.
  3. Since the respondent had failed to honour its commitments of
    delivering possession in four years and as the project was still at
    the stage of excavation, Case No.2241 of 2018 was filed by the
    appellants 1 to 44 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.
  4. The first listing of the case before the National Commission
    was on 10.10.2018 when the application moved by the appellants
    under Section 12(1)(c) of the Act was dealt with by the National
    Commission as under:-
  5. This complaint has been instituted for
    the benefit of entire class of buyers, who
    have booked shops/offices in a project
    namely “Intellicity” consisting of
    residential units, shops and offices at
    Greater Noida. The scope of this complaint
    is not restricted only to the complainants.
    An application seeking permission in terms
    of Section 12(1)(c) of the Consumer
    Protection Act, to institute this complaint
    on behalf of all such buyers of commercial
    units, being IA/18734/2018, has also been
    filed, along with the complaint. It is
    alleged that the complainants are consumers
    as they had booked small shops/offices for
    the purpose of earing their livelihood by
    means of self-employment.
  6. As provided in Section 2(1)(d) of the Consumer
    Protection Act, the term ‘consumer’ excludes from its
    ambit, a person hiring or availing services for a
    commercial purpose, unless he can bring his case
    within the four-corners of the explanation below
    Section 2(1)(d) of the Consumer Protection Act. A
    person hiring or availing services for the purpose of
    earning his livelihood by way of self-employment has
    thereby been included in the definition of
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    ‘consumer’. Otherwise, a shop/commercial unit is
    deemed to be booked for a commercial purpose.
  7. Since the scope of the complaint is not restrict only
    to the complainants and encompasses all the allottees
    of the shops/commercial units, as is specifically
    stated in the complaint and is also evident from the
    prayers made in the compliant, seeking direction to
    the opposite party to refund the amount deposited by
    each complainant as well as other allottees along
    with interest and compensation, it would be
    maintainable as a class action only if it is alleged
    and shown that all the allottees of the
    shops/commercial units in the above referred project
    had booked the same solely for the purpose of the
    earning their livelihood by way of self-employment,
    meaning thereby that all the allottees intend to work
    themselves in these shops/commercial units and the
    occupation of the said units by them has to be for
    the purpose of earning their livelihood. A careful
    perusal of the complaint would show that it is not
    even alleged that all the allottees of the commercial
    units/shops in the above referred project had booked
    the said shops/units solely for the purpose of the
    earning their livelihood by way of self-employment.
    In the absence of such an averment in the complaint,
    no evidence can even be led to prove that not only
    the complainants but all the allottees of the
    shops/commercial units had booked the same solely for
    the purpose of the earning their livelihood by way of
    self-employment. Even otherwise, the complainants
    cannot know the purpose for which the allottees,
    other than the complainants had booked the shops,
    commercial units in the aforesaid project. The said
    purpose can be in the knowledge only of the concerned
    allottees. Therefore, this class action under
    Section 12(1)(c) of the Consumer Protection Act on
    behalf of not only the complainants but all the
    allottees of the shops/commercial units in the
    aforesaid project is not maintainable.”
  8. The National Commission thus 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.
  9. The dismissal of the case as class action is questioned in
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    this appeal.
  10. We heard Mr. Yash Srivastava, learned Advocate for the
    appellants and Mr. Ashutosh Dubey, learned Advocate for the
    respondent.
  11. Relevant provisions of the Act may be adverted to at the
    outset. Sections 2(1)b and 2(1)(d) of the Act define “complainant”
    and “consumer” as under:-
    (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; or
    (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; who or which
    makes a complaint;
    (d) “consumer” means any person who
    (i) buys any goods for a consideration which
    has been paid or promised or partly paid and
    partly promised, or under any system of
    deferred payment and includes any user of
    such goods other than the person who buys
    such goods for consideration paid or
    promised or partly paid or partly promised,
    or under any system of deferred payment when
    such use is made with the approval of such
    person, but does not include a person who
    obtains such goods for resale or for any
    commercial purpose; or
    (ii) hires or avails of any services for a
    consideration which has been paid or
    promised or partly paid and partly promised,
    or under any system of deferred payment and
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    includes any beneficiary of such services
    other than the person who [hires or avails
    of the services for consideration paid or
    promised, or partly paid and partly
    promised, or under any system of deferred
    payments, when such services are availed of
    with the approval of the first-mentioned
    person; but does not include a person who
    avails of such services for any commercial
    purpose;
    Explanation : For the purposes of this
    clause “commercial purpose” does not
    include use by a person of goods bought and
    used by him and services availed by him
    exclusively for the purposes of earning his
    livelihood, and services availed by him by
    means of self-employment;
  12. Section 12 of the Act states:
  13. 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) the consumer to whom such goods are sold
    or delivered or agreed to be sold or
    delivered or such service provided or
    agreed to be provided;
    (b) any recognised consumers association
    whether the consumer to whom the goods
    sold or delivered or service provided or
    agreed to be provided is a member of such
    association or not;
    (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) the Central Government or the State
    Government, as the case may be, either in
    its individual capacity or as a
    representative of interests of the
    consumers in general.”
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  14. Section 13(6) of the Act reads as under:
  15. Procedure on admission of complaint –
    (1) to (5)……….
    (6) Where the complainant is a consumer
    referred to in sub-clause (iv) of clause (b)
    of subsection (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 the plaintiff and the defendant shall be
    construed as a reference to a complaint or
    the opposite party, as the case may be.
  16. According to the National Commission, though all the
    appellants had a 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.
  17. In Chairman, Tamil Nadu Housing Board, Madras vs. T. N.
    Ganapathy1 it was held by this Court that the persons who may be
    represented in a Suit under Order 1 Rule 8 of Civil Procedure Code
    need not have the same cause of action and all that is required for
    application of said provision is that the persons concerned must
    have common interest or common grievance. What is required is
    sameness of interest. Paragraphs 7 and 9 of the decision were as
    under:-
  18. On the question of maintainability of the
    1 (1990) 1 SCC 608
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    suit in a representative capacity under
    Order I, Rule 8 of the Code of Civil
    Procedure, it has been contended that since
    the injury complained of is in regard to
    demand of money and that too by a separate
    demand against each of the allottees, giving
    rise to different causes of action, Rule 1
    has no application. The learned counsel
    proceeded to say that it is not known
    whether each of the allottees in Ashok Nagar
    had been even served with an additional
    demand before the suit was filed; and
    further emphasised that those who had been
    so served are interested in defeating only
    the demand individually referable to each of
    them. Each one of them is not interested in
    what happens to the others. It is,
    therefore, suggested that only such of the
    allottees who have already been served with
    additional demands are entitled to maintain
    an action in court, and they also should do
    it by filing separate suits. We do not find
    any merit in the argument. The provisions of
    Order I of Rule 8 have been included in the
    Code in the public interest so as to avoid
    multiplicity of litigation. The condition
    necessary for application of the provisions
    is that the persons on whose behalf the suit
    is being brought must have the same
    interest. In other words either the interest
    must be common or they must have a common
    grievance which they seek to get redressed.
    In Kodia Goundar v. Velandi Goundar (ILR
    1955 Mad 339: AIR 1955 Mad 281) a Full Bench
    of the Madras High Court observed that on
    the plain language of Order I Rule 8, the
    principal requirement to bring a suit within
    that rule is the sameness of interest of the
    numerous persons on whose behalf or for
    whose benefit the suit is instituted. The
    court, while considering whether leave under
    the rule should be granted or not, should
    examine whether there is sufficient
    community of interest to justify the
    adoption of the procedure provided under the
    rule. The object for which this provision is
    enacted is really to facilitate the decision
    of questions, in which a large number of
    persons are interested, without recourse to
    the ordinary procedure. The provision must,
    therefore, receive an interpretation which
    will subserve the object for its enactment.
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    There are no words in the rule to limit its
    scope to any particular category of suits or
    to exclude a suit in regard to a claim for
    money or for injunction as the present one.
    … … …
  19. It is true that each of the allottees is
    interested individually in fighting out the
    demand separately made or going to be made
    on him and, thus, separate causes of action
    arise in the case, but, that does not make
    Order I Rule 8 inapplicable. Earlier there
    was some doubt about the rule covering such
    a case which now stands clarified by the
    Explanation introduced by the Code of Civil
    Procedure (Amendment) Act, 1976, which reads
    as follows:
    “Explanation.— For the purpose of
    determining whether the persons who sue
    or are sued, or defend, have the same
    interest in one suit, it is not
    necessary to establish that such
    persons have the same cause of action
    as the persons on whose behalf, or for
    whose benefit, they sue or are sued, or
    defend the suit, as the case may be.”
    The objects and reasons for the amendment
    were stated below:
    “Objects and Reasons: Clause 55;
    sub-clause (iv), — Rule 8 of Order I
    deals with representative suits. Under
    this rule, where there are numerous
    persons having the same interest in one
    suit, one or more of them may, with the
    permission of the court, sue or be
    sued, on behalf of all of them. The
    rule has created a doubt as to whether
    the party representing others should
    have the same cause of action as the
    persons represented by him. The rule is
    being substituted by a new rule and an
    explanation is being added to clarify
    that such persons need not have the
    same cause of action.”
    There is, therefore, no doubt that the
    persons who may be represented in a suit
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    under Order I, Rule 8 need not have the same
    cause of action. The trial court in the
    present case was right in permitting the
    respondent to sue on behalf of all the
    allottees of Ashok Nagar. We, therefore, do
    not find any merit in this appeal which is
    dismissed with costs. Before closing,
    however, we would like to point out that the
    plaintiff has represented only those in the
    low income group in Ashok Nagar who will be
    governed by this judgment, and nothing that
    has been said or decided in this case is
    applicable to any other group or colony.”
  20. Very same issue was dealt with by Full Bench of the National
    Commission in Ambrish Kumar Shukla and Ors. vs. Ferrous
    Infrastructure Pvt. Ltd.2. The National Commission relied upon the
    decision of this Court in T.N. Housing Board1. Relevant portion of
    the decision of the National Commission was :-
    “10. Since by virtue of Section 13(6) of the
    Consumer Protection Act, the provisions of
    the Order 1 Rule 8 of 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 Tamil Nadu
    Housing Board (supra) 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 Tamil Nadu Housing Board (supra), the
    interest 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 addressed. The defect or deficiency in
    2 Consumer Case No.97 of 2016, decided on 07.10.2016
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    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 the 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, he
    fails to deliver possession of the said
    flats/plots within the time frame 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
    and the other purchasers to the
    developer/builder is sought, the grievance
    of such persons being common i.e. the
    failure of the builder/developer to deliver
    timely possession of the flats/plots sold to
    them, they would have same interest in the
    subject matter of the complaint and
    sufficient community of interest to justify
    the adoption of the procedure prescribed in
    Order 1 Rule 8 of the Code of Civil
    Procedure, provided that the complaint is
    filed on behalf of or for the benefit of all
    the persons having a common grievance
    against the same developer/builder, and
    identical relief is sought for all such
    consumers.
    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
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    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.”
  21. It was observed by this Court in T.N. Housing Board1 that the
    provision must receive an interpretation which would subserve the
    object for its enactment. It is in this light that the Full Bench
    of the National Commission held that oneness of the interest is
    akin to a common grievance against the same person.
  22. However, the National Commission in the instant case,
    completely lost sight of the principles so clearly laid down in the
    decisions referred to above. In our view, the approach in the
    instant case was totally erroneous.
  23. We, therefore, allow this appeal, set aside the Order under
    appeal. The application preferred by the appellants under Section
    12(v)(o) of the Act is held to be maintainable. Case No.2241 of
    2018 is restored to the file of the National Commission and shall
    be proceeded with in accordance with law.
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  24. The appeal is allowed in aforesaid terms. No costs.
    ..…..……………….J.
    (Arun Mishra)
    ..…………………….J.
    (Uday Umesh Lalit)
    New Delhi;
    May 10, 2019.