BRIGADE ENTERPRISES LIMITEDversusANIL KUMAR VIRMANI & ORS.

940                      [2021]REPORTS
               SUPREME COURT    13 S.C.R.940              [2021] 13 S.C.R.


A                   BRIGADE ENTERPRISES LIMITED
                                       v.
                      ANIL KUMAR VIRMANI & ORS.
                        (Civil Appeal No. 1779 of 2021)
B                           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
C
      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
D     – 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,
E
      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
F     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
G
      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
H
                                      940
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                            941
                   VIRMANI & ORS.

but there were no pleadings in regard to 386 apartments of Amber           A
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
                                                                           B
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                  C
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         D
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      E
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-         F
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             G
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 case the period of delay was negligible
and those in whose cases there was a huge delay.
                                                                           H
942            SUPREME COURT REPORTS                       [2021] 13 S.C.R.


A           Consumer Protection Act, 1986: Consumer Protection Act,
      2019 – s.12(1)(c) of the 1986 Act or s.35(1)(c) of the 2019 Act –
      For allowing an application under s.12(1)(c) of the 1986 Act or
      s.35(1)(c) of the 2019 Act, the pleadings and the reliefs are to be
      considered – If so considered, National Commission could not have
      granted permission to the respondents in this case, to file the
B
      complaint in a representative capacity for and on behalf of the
      owners of all the 1134 flats.
            Consumer Protection Act, 2019: s.2(5)(i), s.36(1) –
      Interpretation of – Consumer – It is true that s.2(5)(i) uses the
      expression “a consumer” – If the vowel “a” and the word
C     “consumer” appearing in s.2(5)(i) are to be understood to exclude
      more than one person, it will result in a disastrous consequence
      while reading s.2(5)(vi) – s.2(5)(vi) states that in the case of death
      of a consumer, “his legal heir or legal representative” will be a
      complainant – Unless the words “legal heir” and “legal
D     representative” are understood to mean ‘legal heirs’ and ‘legal
      representatives’, a meaningful reading of the provision may not be
      there – Under s.13(2) of the General Clauses Act, 1897, words in
      the singular shall include the plural and vice versa in all Central
      Acts and Regulations, unless there is anything repugnant in the
      subject or context – Anything repugnant cannot be read in the
E     subject or context of s. 2(5) or 35(1)(c) or 38(11) of the Consumer
      Protection Act, 2019 to hold that the word in the singular, namely,
      “consumer” will not include the plural – The proper way of
      interpreting s.35(1) read with s.2(5), would be to say that a complaint
      may be filed: (i) by a single consumer; (ii) by a recognised consumer
F     Association; (iii) by one or more consumers jointly, seeking the
      redressal of their own grievances without representing other
      consumers who may or may not have the same interest; (iv) by one
      or more consumers on behalf of or for the benefit of numerous
      consumers; and (v) the Central Government, Central Authority or
      State Authority.
G
            Allowing the appeal, the Court
            HELD: 1. 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
H     respect to the timeline of the project in respect of Amber block,
     BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                          943
                  VIRMANI & ORS.

the consumer complaint filed by the respondents cannot be               A
treated as one representing the owners of 386 apartments in
Amber block. The respondents ought to have either included as
one of the complainants, the owner of one of the apartments in
Amber block or at least made necessary averments in the pleading
about the timeline for completion of the Amber block, to make
                                                                        B
the complaint, as one filed in a representative capacity on behalf
of the owners of flats in all the three blocks. Let us now see at
least whether the complaint was maintainable in a representative
capacity on behalf of the owners of the flats in Blue block and
Crimson block, in the light of the requirements of Section 35(1)(c)
of the Act. [Para 13][953-E-G]                                          C
      2. 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        D
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”. Therefore,
a complaint filed under Section 35(1)(c) could either be “on behalf
of” or “for the benefit of” all consumers having the same interest.     E
[Paras 14, 15][953-G-H; 954-A-C]
      3. Section 38(11) of the Consumer Protection Act, 2019
makes the provisions of Order I Rule 8 of the First Schedule to
the Code of Civil Procedure, 1908 applicable to cases where the
complainant is a consumer referred to in Section 2(5)(v), which         F
defines a ‘complainant’ to mean one or more consumers, where
there are numerous consumers having the same interest. Order
I Rule 8, CPC, unlike Section 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         G
people to be sued and to be defended in an action, in a
representative capacity. [Paras 16, 17][954-D-E]
       4. The Explanation under Order I Rule 8 is of significance.
It distinguishes persons having the same interest in one suit from
                                                                        H
944            SUPREME COURT REPORTS                     [2021] 13 S.C.R.


A     persons having the same cause of action. To establish sameness
      of interest, it is not necessary to establish sameness of the cause
      of action. The Explanation under Order I Rule 8, is a necessary
      concomitant of the provisions of the Rules 1 and 3 of Order I.
      Order I Rule 1, CPC, allows many persons to join in one suit as
      plaintiffs. Order I, Rule 3 allows many persons to be joined in
B
      one suit as defendants. But to fall under Order I Rule 1 or Order
      I Rule 3, the right to relief should arise out of or be in respect of
      the same act or transaction allegedly existing in such persons,
      jointly, severally or in the alternative. To some extent, Rules 1
      and 3 of Order I are founded upon the sameness of the cause of
C     action. This is why the Explanation under Order I Rule 8
      distinguishes sameness of interest from the sameness of the cause
      of action. [Paras 19, 20][956-E-G]
             5. Since “sameness of interest” is the pre-requisite for an
      application under Order I Rule 8, CPC read with Section 35(1)(c)
D     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. As we have
      pointed out earlier the total number of residential apartments
      constructed in three blocks comprising of about 20 wings (7 wings
      each in Amber and Blue blocks and 6 wings in Crimson block) were
E     1134. There are no pleadings insofar as the purchasers of 386
      residential apartments in the 7 wings of Amber block are
      concerned. Even in respect of the owners of the remaining 748
      residential apartments in blue block and Crimson block, the
      complaint does not contain any specific averments regarding
F     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 existence of sameness of interest, has been
      questioned by the appellant-builder on the ground that delay
G     compensation as stipulated in the Agreements was offered to the
      purchasers and that some of them accepted the same without
      any demur or protest, while a few others have refused to accept.
      It is not clear from the consumer complaint as to how (i) those
      who have accepted the compensation under protest; (ii) those
H
     BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                          945
                  VIRMANI & ORS.

who accepted without protest; and (iii) those who refused to accept     A
the compensation, have the sameness of interest. [Para 21][956-
H; 957-A-D]
       6. The period of delay in the completion of the project and
the handing over of possession, does not appear to be uniform in
all 1134 cases. The respondents-complainants cannot project             B
sameness of interest for the purchasers in whose case the period
of delay was negligible and those in whose cases there was a
huge delay. The delay in handing over possession need not
necessarily be the only deficiency in service on the part of the
appellant-builder. Some of the purchasers of flats may also have
other complaints and their right to proceed against appellant           C
cannot be stultified by a few individuals invoking Section 35(1)(c).
That a few purchasers have chosen to approach the Karnataka
State Consumer Disputes Redressal Commission to ventilate
their individual grievances shows that all the 1134 buyers do not
have the same interest as that of the respondents. At least if the      D
respondents have given the names of purchasers of all flats on
whose behalf the present complaint could be entertained, they
would have been better off. But they have not done so. [Paras
22, 23][957-E-H]
      Chairman, Tamil Nadu Housing Board, Madras v. T.N.                E
      Ganapathy (1990) 1 SCC 608 : [1990] 1 SCR 272;
      Chairman, Tamil Nadu Housing Board, Madras v. T.N.
      Ganapathy and Vikrant Singh Malik & Ors. v. Supertech
      Limited & Ors. (2020) 9 SCC 145; Rameshwar Prasad
      Shrivastava & Ors. v. Dwarkadhis Projects Private
      Limited & Ors. (2019) 2 SCC 417 : [2018] 14 SCR                   F
      1118; Anjum Hussain and Ors. v. Intellicity Business
      Park Private Limited and Ors. (2019) 6 SCC 519 :
      [2019] 7 SCR 1036 – referred to.
      7. Allowing an application under Section 12(1)(c) of the 1986
Act or Section 35(1)(c) of the 2019 Act, the pleadings and the          G
reliefs are to be considered. If so considered, the National
Commission could not have granted permission to the
respondents in this case, to file the complaint in a representative
capacity for and on behalf of the owners of all the 1134 flats. [Para
29][959-C-D]                                                            H
946            SUPREME COURT REPORTS                     [2021] 13 S.C.R.


A           8. There is no scope for the contention that wherever there
      are more consumers than one, they must only take recourse to
      Order I Rule 8 CPC, even if the complaint is not on behalf of or
      for the benefit of, all the consumers interested in the matter.
      There may be cases where only “a few consumers” and not
      “numerous consumers” have the same interest. There is nothing
B
      in the Act to prohibit these few consumers from joining together
      and filing a joint complaint. A joint complaint stands in contrast to
      a complaint filed in a representative capacity. For attracting the
      provisions of Section 35(1)(c), the complaint filed by one or more
      consumers should be on behalf of or for the benefit of numerous
C     consumers having same interest. It does not mean that where
      there are only very few consumers having the same interest, they
      cannot even join together and file a single complaint, but should
      take recourse only to independent and separate complaints.[Para
      34][961-B-D]
D           9. It is true that Section 2(5)(i) uses the expression “a
      consumer”. If the vowel “a” and the word “consumer” appearing
      in Section 2(5)(i) are to be understood to exclude more than one
      person, it will result in a disastrous consequence while reading
      Section 2(5)(vi). Section 2(5)(vi) states that in the case of death
      of a consumer, “his legal heir or legal representative” will be a
E     complainant. Unless the words “legal heir” and “legal
      representative” are understood to mean ‘legal heirs’ and ‘legal
      representatives’, a meaningful reading of the provision may not
      be there. [Para 35][961-E-F]
            10. Under Section 13(2) of the General Clauses Act, 1897,
F     words in the singular shall include the plural and vice versa in all
      Central Acts and Regulations, unless there is anything repugnant
      in the subject or context. We cannot read anything repugnant in
      the subject or context of Section 2(5) or 35(1)(c) or 38(11) of the
      Consumer Protection Act, 2019 to hold that the word in the
G     singular, namely, “consumer” will not include the plural. [Para
      36][961-F-G]
             11. The proper way of interpreting Section 35(1) read with
      section 2(5), would be to say that a complaint may be filed: (i) by
      a single consumer; (ii) by a recognised consumer Association;
H     (iii) by one or more consumers jointly, seeking the redressal of
     BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                         947
                  VIRMANI & ORS.

their own grievances without representing other consumers who          A
may or may not have the same interest; (iv) by one or more
consumers on behalf of or for the benefit of numerous consumers;
and (v) the Central Government, Central Authority or State
Authority. [Para 38][962-C-D]
      12. The provisions of the Consumer Protection Act are in         B
addition to and not in derogation of the provisions of any other
law for the time being in force, by virtue of Section 100. Even
Section 38 which prescribes the procedure to be followed by the
Commission for enquiring into the complaint, does not expressly
exclude the application of the provisions of CPC. Though Sub-
sections (9), (11) and (12) of Section 38 make specific reference      C
only to a few provisions of the Code of Civil Procedure, the
principle behind Order I Rule 1 enabling more than one person
to join in a suit as plaintiff is not expressly excluded. Therefore,
that while the National Commission was wrong in this case, in
the peculiar facts and circumstances in permitting an application      D
under Section 35(1)(c) read with Order I Rule 8 CPC, it does not
mean that the complaint filed by the respondents itself is liable
to be thrown out. The complaint filed by the respondents may
have to be treated as a joint complaint and not a complaint in a
representative capacity on behalf of 1134 purchasers. [Paras 39,
40][962-D-G]                                                           E

                      Case Law Reference
[1990] 1 SCR 272              referred to             Para 4
(2020) 9 SCC 145              referred to             Para 6
                                                                       F
[2018] 14 SCR 1118            referred to             Para 26
[2019] 7 SCR 1036             referred to             Para 27
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1779
of 2021.
      From the Judgment and Order dated 05.04.2021 of the National     G
Consumer Disputes Redressal Commission, New Delhi in I.A. No. 7350
of 2020 in Consumer Case No. 880 of 2020.
     Jayant Bhushan, Sr. Adv., Mayank Mishra, Sarvesh Singh Baghel,
Ms. Ayshwarya Chandra, Aman Chaudhary, Advs. for the Appellant.
                                                                       H
948               SUPREME COURT REPORTS                       [2021] 13 S.C.R.


A         Ajit Kumar Sinha, Sr. Adv., Govind Jee, Krishna Kumar Singh,
      Omanakuttan K. K., Advs. for the Respondents.
               The Judgment of the Court was delivered by
               V. RAMASUBRAMANIAN, J.
B           1. Challenging an order of the National Consumer Disputes
      Redressal Commission, passed under Section 35(1)(c) of the Consumer
      Protection Act, 2019, allowing 91 purchasers of 51 apartments in the
      residential complex developed by them, to file a consumer complaint in a
      representative capacity, on behalf of and for the benefit of more than
      about 1000 purchasers, the builder has come up with the above appeal.
C
             2. We have heard Mr. Jayant Bhushan, learned senior counsel for
      the appellant, Mr. Ajit Kumar Sinha, learned senior counsel for the
      respondents and Mr. Omanakuttan K. K., learned counsel appearing for
      the intervenors.

D            3. 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
E     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. In other words the consumer
      complaint filed by those applicants, who are respondents herein, is a
      class action and the permission sought by them was in the nature of a
F     permission that could be granted by the Civil Court in terms of Order I
      Rule 8 of the Code of Civil Procedure.
             4. Though the builder who is the appellant herein objected to the
      application under Section 35(1)(c), the National Commission allowed
      the application by relying upon the decision of this Court in the Chairman,
      Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy1 and the
G
      decision of the National Commission in Ambrish Kumar Shukla vs.
      Ferrous Infrastructure Pvt. Ltd. Aggrieved by the said Order, the
      builder has come up with the above appeal.


      1
H         (1990) 1 SCC 608
         BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                             949
          VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

      5. The main grievance of the appellant-builder, as projected by          A
Mr. Jayant Bhushan, learned senior counsel is that out of total of 1134
apartments constructed and sold by them, 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
                                                                               B
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.
       6. However, the contention of Mr. Ajit Kumar Sinha, learned             C
counsel appearing on behalf of the respondents/original complainants is
that the issue is no longer res integra in view of the decisions of this
Court in Chairman, Tamil Nadu Housing Board, Madras vs. T.N.
Ganapathy and Vikrant Singh Malik & Ors. vs. Supertech Limited
& Ors.2 It is also his contention that the respondents have the sameness       D
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.
       7. Before we get into an analysis of the rival contentions with
specific reference to the statutory provisions, it is necessary to look into   E
the reliefs prayed for, by the respondents in their consumer complaint
and the pleadings on the basis of which the reliefs were so sought. The
reliefs sought by the respondents in their consumer complaint, for the
benefit of and on behalf of the purchasers of all the flats in the entire
residential complex reads as follows:-
                                                                               F
               “That in view of the abovementioned facts and
         circumstances this Hon’ble Commission may graciously be
         pleased to pass orders and to direct the OP to:-
         i.     Direct the OP to pay to each of the Complainants and
                to each buyer having same interest delay compensation,         G
                as stipulated in the Sale and Construction Agreements,
                for unpaid period out of the “Total Period of Delay”
                as indicated in Para 46 of the Consumer Complaint;


2
    (2020) 9 SCC 145                                                           H
950                SUPREME COURT REPORTS                      [2021] 13 S.C.R.


A           ii.      Direct the OP to pay to each of the Complainants and
                     to each buyer having same interest, compensatory
                     interest @ 12% p.a. on individual consideration amount
                     paid, for abnormal and inordinate delay in construction,
                     till handing over possession of flats to the complainants,
                     computing total period of delay as indicated in Para
B
                     46 of the Consumer Complaint;
            iii.     Award cost of the Complaint to the Complainants; and/
                     or
            iv.      Pass any other and/or further relief, which this Hon’ble
C                    Commission thinks fit and proper, in the facts and
                     circumstances of the case, in favour of the complainants
                     and against the OP.”
             8. The pleadings on the basis of which the respondents sought the
      aforesaid prayers, in brief, are as follows: (i) that the appellant launched
D     the subject project in the year 2013; (ii) 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; (iii) that
      Amber block, also called Building No.1, was to have seven wings, namely,
      Wings A, B, C, D, E, F and G; Blue block, also called Building No.2 was
      to have Wings H, I, J, K, L, M and N and Crimson block, also called
E     Building Nos.3 and 4 were to have Wings O, P, Q, R, S and T; (iv) that
      in respect of the flats in Blue block, the promised delivery date was
      30.06.2016 with a six months grace period; (v) that 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
F     occupancy certificate was issued partially on 28.12.2018 and the
      occupancy certificate for the balance was issued on 25.06.2019; (vi)
      that in respect of the buildings in Crimson block, the promised delivery
      date was 31.01.2018 with a grace period of six months; (vii) that though
      the completion certificate for the Crimson block was issued by the
      architect on 10.08.2018, the occupancy certificate was issued partially
G     on 28.12.2018; (viii) that the builder was guilty of unfair trade practice,
      inasmuch 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
H     making payment; (ix) that on account of the delay on the part of the
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                               951
       VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

appellant in handing over possession, the buyers suffered losses in the       A
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; and (x) that therefore they were constrained to file a complaint.
       9. From the aforesaid averments contained in the consumer
complaint, it could be seen that the delay on the part of the builder in      B
handing over possession, was the primary ground on which compensation
was sought by the respondents. We have already extracted the prayers
made in the original complaint. Interestingly the prayer portion of the
complaint does not contain the quantification of the total amount of
compensation sought by the respondents either individually or collectively
for and on behalf of all the purchasers of all the 1134 residential           C
apartments. The prayer portion of the complaint refers to paragraph 46
of the complaint, for the purpose of computation of delay compensation.
But paragraph 46 of the complaint does not convey any meaning except
if taken into account along with paragraph 45. Therefore, paragraphs 45
and 46 of the complaint are extracted as follows:                             D
      “45. Computation of “Total Period of Delay”—The
      Complainants assert that the Total Period of Delay be
      calculated as follows:
      Delay Period Start – Promised Date of Possession, not
      considering the grace period; and                                       E

       Delay Period End – Either of the following two dates based
      on facts of individual complainants:
      a. Where possession was taken prior to issuance of
         Occupancy Certificate, the Date of Occupancy Certificate;            F
         OR
      b. Where possession was taken after the issuance of
         Occupancy Certificate, then Date of possession Offered;
      It would be relevant to state that the meaning and nature of
      ‘possession’ as stated by the complainants in this para would           G
      mean legal possession only where said possession had been
      given or offered to be given upon confirmation of readiness
      of the flat for possession, in adherence to Schedule of
      Construction Agreement.
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952            SUPREME COURT REPORTS                        [2021] 13 S.C.R.


A           46. 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. Hence,
            possession without registering and executing sale deed or
B
            vice versa does not together construe to be “possession” for
            the purpose of calculating the delay suffered by the buyers.
            If both events are done on separate times, the later date of
            the two would prevail. It is respectfully submitted that for the
            given residential project, the date of grant of Occupancy
C           Certificate shall be reckoned as the pivotal event to ascertain
            delayed possession and calculating compensation based
            thereon.”
             10. Paragraphs 45 and 46 contain a tacit admission that the period
      of delay in handing over possession of the flats, may vary from buyer to
D     buyer in respect of the purchasers of all the 1134 apartments. This is
      why the respondents have sought the indulgence of the Commission to
      compute the delay in respect of each case, on the basis of formulae
      indicated in paragraph 45.
            11. However, paragraph 41 of the consumer complaint contains
E     the valuation of the complaint, at least insofar as the 91 complainants
      who jointly filed the consumer complaint are concerned. The relevant
      portion of paragraph 41 of the complaint reads as follows:
            “It is submitted that as per the Agreement terms reproduced
            above, OPs are committed to pay meager delay compensation
F           of Rs. 5/- per sq. ft. of saleable area, per month, which comes
            to around 0.1% per annum of the sale consideration, or even
            lesser. On the contrary, the penalty charged by the OPs in
            case the buyers’ default or delay in paying the instalment is
            18% per annum. It is clear that the balance of performance
            is over 180 times against the buyers who have been bearing
G           the brunt of the absolute mismanagement of project by the
            OPs. The buyer is not only patiently waiting for the possession
            but also gets a double whammy to keep paying all the
            instalments without enjoying the property. Of the total number
            of complainants those who have preferred to approach this
H           Hon’ble Forum in this instant Complaint, the aggregate value
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                                953
       VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

      of sale for 51 complainant-buyers alone, is about Rs. 66 Crore           A
      whereas the aggregate amount disbursed by the OP so the
      same buyers, in the name of Delay Compensation is a meager,
      less than Rs. 10 lakh which is just about 0.1% for the entire
      of delay of more than 2 years.”
       12. Before we proceed further we must record one important              B
fact, namely, that even according to the respondents-complainants, the
project comprised of three blocks namely Amber block, Blue block and
Crimson block. Amber block was to have seven Wings with 386
apartments. It appears that none of the owners of these 386 apartments
in Amber block have joined with the respondents-complainants. This is
why the entire discussion about the delay in completion of the project,        C
with reference to the timeline of events found in paragraph 14 of the
consumer complaint, refers only to Blue block and Crimson block. The
appellant has given a tabulation in their counter to the original complaint,
pointing out that Blue block comprises of 412 apartments, out of which
the owners of only 47 apartments have joined in the filing of the complaint    D
and that Crimson block has 336 apartments, out of which the owners of
only 4 apartments have joined in the complaint.
        13. 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         E
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. The respondents ought to have either included
as one of the complainants, the owner of one of the apartments in Amber
block or at least made necessary averments in the pleading about the
timeline for completion of the Amber block, to make the complaint, as          F
one filed in a representative capacity on behalf of the owners of flats in
all the three blocks. Let us now see at least whether the complaint was
maintainable in a representative capacity on behalf of the owners of the
flats in Blue block and Crimson block, in the light of the requirements of
Section 35(1)(c) of the Act.                                                   G
       14. 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            H
954            SUPREME COURT REPORTS                         [2021] 13 S.C.R.


A     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”. Clause (c) of Sub-Section (1) of Section 35 reads
      as under:
B           “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.”
            15. Therefore, a complaint filed under Section 35(1)(c) could either
C     be “on behalf of” or “for the benefit of” all consumers having the
      same interest.
            16. Section 38(11) of the Consumer Protection Act, 2019 makes
      the provisions of Order I Rule 8 of the First Schedule to the Code of
      Civil Procedure, 1908 applicable to cases where the complainant is a
D     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.
             17. Order I Rule 8, CPC, unlike Section 35(1)(c) operates both
      ways and contains provisions for a two-way traffic. It not only permits
E     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.
      Order I Rule 8 reads as follows:-
            “8. One person may sue or defend on behalf of all in same
            interest.—(1) Where there are numerous persons having the
F           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
G               may sue or be sued, or may defend such suit, on behalf of,
                or for the benefit of, all persons so interested.
            (2) The Court shall, in every case where a permission or
            direction is given under sub-rule (1), at the plaintiff’s expense,
            give notice of the institution of the suit to all persons so
H           interested, either by personal service, or, where, by reason of
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                                 955
       VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

      the number of persons or any other cause, such service is not             A
      reasonably practicable, by public advertisement, as the Court
      in each case may direct.
      (3) 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.                                B
      (4) No part of the claim in any such suit shall be abandoned
      under sub-rule (1), and no such suit shall be withdrawn under
      sub-rule (3), of rule 1 of Order XXIII, and no agreement,
      compromise or satisfaction shall be recorded in any such suit
      under rule 3 of that Order, unless the Court has given, at the            C
      plaintiff ’s expense, notice to all persons so interested in the
      manner specified in sub-rule (2).
      (5) Where any person suing or defending in any such suit
      does not proceed with due diligence in the suit or defence,
      the Court may substitute in his place any other person having             D
      the same interest in the suit.
      (6) A decree passed in a suit under this 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.”
      18. In simple terms, the salient features of the stipulations contained   E
in Order I Rule 8 CPC can be summed up as follows:
      (i)     where there are numerous persons having the same interest
              in one suit, one or more of such persons may, with the
              permission of the Court, sue on behalf of or for the benefit
              of all persons so interested;                                     F
      (ii)    where there are numerous persons having the same interest
              in one suit, one or more of such persons may be sued or
              one or more such persons may defend such suit, on behalf
              of or for the benefit of all persons so interested;
      (iii)   the Court itself may, without the plaintiffs or defendants        G
              seeking any permission under Order I Rule 8(1)(a), direct
              that one or more such persons may sue or be sued or may
              defend the suit on behalf of and for the benefit of all persons
              interested;
                                                                                H
956               SUPREME COURT REPORTS                          [2021] 13 S.C.R.


A           (iv)    notice of the institution of the suit to all persons so interested
                    either by personal service or by public advertisement should
                    be ordered by the Court in both categories of cases, namely,
                    where permission is given by the Court on the application
                    of the individuals or direction is issued by the Court itself;
B           (v)     any person on whose behalf or for whose benefit the suit is
                    instituted or defended may seek to be made a party to the
                    suit;
            (vi)    abandonment of the whole or part of the claim, withdrawal
                    of the suit or the recording of any agreement, compromise
C                   or satisfaction shall not be allowed by the Court unless notice
                    to all persons interested in the matter is issued either by
                    personal service or by public advertisement.
            (vii) the Court may at any time substitute the person suing or
                  defending in a representative capacity, with any other
D                 person, if the former was not prosecuting the suit or defence
                  with due diligence.
            (viii) the decree passed in the suit covered by this Rule will be
                   binding on all persons.
             19. The Explanation under Order I Rule 8 is of significance. It
E     distinguishes persons having the same interest in one suit from persons
      having the same cause of action. To establish sameness of interest, it is
      not necessary to establish sameness of the cause of action.
             20. The Explanation under Order I Rule 8, is a necessary
      concomitant of the provisions of the Rules 1 and 3 of Order I. Order
F     I Rule 1, CPC, allows many persons to join in one suit as plaintiffs.
      Order I, Rule 3 allows many persons to be joined in one suit as
      defendants. But to fall under Order I Rule 1 or Order I Rule 3, the
      right to relief should arise out of or be in respect of the same act or
      transaction allegedly existing in such persons, jointly, severally or
      in the alternative. To some extent, Rules 1 and 3 of Order I are
G
      founded upon the sameness of the cause of action. This is why the
      Explanation under Order I Rule 8 distinguishes sameness of interest
      from the sameness of the cause of action.
            21. Since “sameness of interest” is the pre-requisite for an
      application under Order I Rule 8, CPC read with Section 35(1)(c) of the
H
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                               957
       VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

Consumer Protection Act, 2019, it was necessary for the respondents to        A
include in the consumer complaint, sufficient averments that would show
sameness of interest. As we have pointed out earlier the total number of
residential apartments constructed in three blocks comprising of about
20 wings (7 wings each in Amber and Blue blocks and 6 wings in
Crimson block) were 1134. There are no pleadings insofar as the
                                                                              B
purchasers of 386 residential apartments in the 7 wings of Amber block
are concerned. Even in respect of the owners of the remaining 748
residential apartments in blue block and Crimson block, the complaint
does 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   C
to sue the builder. But sameness of the cause of action is not equal to
sameness of interest. The existence of sameness of interest, has been
questioned by the appellant-builder on the ground that delay compensation
as stipulated in the Agreements was offered to the purchasers and that
some of them accepted the same without any demur or protest, while a
                                                                              D
few others have refused to accept. It is not clear from the consumer
complaint as to how (i) those who have accepted the compensation
under protest; (ii) those who accepted without protest; and (iii) those
who refused to accept the compensation, have the sameness of interest.
       22. The period of delay in the completion of the project and the
handing over of possession, does not appear to be uniform in all 1134         E
cases. The respondents-complainants cannot project sameness of interest
for the purchasers in whose case the period of delay was negligible and
those in whose cases there was a huge delay.
        23. We may have to look at the issue also from the point of view
of the buyers. The delay in handing over possession need not necessarily      F
be the only deficiency in service on the part of the appellant-builder.
Some of the purchasers of flats may also have other complaints and
their right to proceed against appellant cannot be stultified by a few
individuals invoking Section 35(1)(c). That a few purchasers have chosen
to approach the Karnataka State Consumer Disputes Redressal                   G
Commission to ventilate their individual grievances shows that all the
1134 buyers do not have the same interest as that of the respondents. At
least if the respondents have given the names of purchasers of all flats
on whose behalf the present complaint could be entertained, they would
have been better off. But they have not done so.
                                                                              H
958               SUPREME COURT REPORTS                           [2021] 13 S.C.R.


A            24. Reliance is placed by the learned senior counsel for the
      respondents, upon the Judgment of this Court in Chairman, Tamil Nadu
      Housing Board, Madras vs. T.N. Ganapathy (supra), to drive home
      the point that the object of Order I Rule 8 is to facilitate the decision of
      questions in which large number of persons are interested, without
      recourse to the ordinary procedure and that, therefore, the provision
B
      must receive an interpretation which will subserve the object of its
      enactment. This Court pointed out in the said case that though each of
      the allottees of plots by the Housing Board may be interested individually
      in fighting out the demand separately made or likely to be made by the
      Board, it would not make Order I Rule 8 inapplicable.
C            25. But the above decision in Tamil Nadu Housing Board (supra)
      cannot be pressed into service by the respondents for two reasons,
      namely, (i) that what was questioned in a representative suit in that
      case, was the additional demand sought to be made by the Housing
      Board on all the allottees uniformly, for an amount over and above the
D     tentative price originally fixed; and (ii) that in any case this Court restricted
      the applicability of the decision only to those allottees of the low income
      group. Therefore, the sameness of interest has to be tested on the basis
      of the nature of the reliefs claimed and the pleadings that pinpoint the
      sameness of interest.
E           26. In Rameshwar Prasad Shrivastava & Ors. vs. Dwarkadhis
      Projects Private Limited & Ors.3, this Court was concerned with a
      case where a complaint filed by a group of 19 persons who were allotted
      residential apartments in a Group Housing Project, came to be dismissed
      by the National Commission, for want of a proper application under
      Section 12(1)(c) of the 1986 Act [equivalent to Section 35(1)(c) of the
F     2019 Act]. After referring to the definition of the expression
      “complainant” in Section 2(1)(b)(iv) of the 1986 Act and the requirement
      of Section 13(6) of the 1986 Act, this Court upheld the Order of the
      National Commission holding the complaint to be not maintainable. This
      Court held that the requirement of Order I Rule 8 prescribed in Section
G     13(6) of the 1986 Act should be read into Section 12(1)(c) of the 1986
      Act.
            27. In Anjum Hussain and Ors. vs. Intellicity Business Park
      Private Limited and Ors.4, this Court reversed the decision of the
      3
          (2019) 2 SCC 417
H     4
          (2019) 6 SCC 519
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                                 959
       VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

National Commission which dismissed an application under Section                A
12(1)(c) of the 1986 Act, on the ground that the object of Section 12(1)(c)
is to reduce multiplicity of proceedings and that, therefore, it must receive
an interpretation which would subserve the object of its enactment.
       28. In Vikrant Singh Malik and Ors. vs. Supertech Limited
and Ors. (supra), this Court upheld the order of the National Commission        B
that dismissed an application under Section 12(1)(c) of the 1986 Act, on
the ground that the reliefs prayed for in the consumer complaint, were
confined only to 26 complainants and that even the pleadings as framed
and drawn up, highlighted only the specific grievances of those 26
complainants.
                                                                                C
       29. All the above decisions show that for allowing an application
under Section 12(1)(c) of the 1986 Act or Section 35(1)(c) of the 2019
Act, the pleadings and the reliefs are to be considered. If so considered,
the National Commission could not have granted permission to the
respondents in this case, to file the complaint in a representative capacity
for and on behalf of the owners of all the 1134 flats.                          D

       30. That takes us to the next question as to the fate of the complaint
filed by the respondents. It is sought to be contended that once the
application under Section 35(1)(c) is held liable to be rejected, the
complaint should also go, as more than one consumer cannot institute a
complaint unless they come within the definition of the word                    E
“complainant” and also satisfy the requirements of Section 38(11) read
with Order I Rule 8 CPC.
       31. It is true that the definition of the word “complainant” is little
misleading. Section 2(5) of the Consumer Protection Act, 2019 reads as
under:                                                                          F
      “(5) “complainant” means—
      (i)     a consumer; or
      (ii)    any voluntary consumer association registered under
              any law for the time being in force; or                           G
      (iii)   the Central Government or any State Government; or
      (iv)    the Central Authority; or
      (v)     one or more consumers, where there are numerous
              consumers having the same interest; or                            H
960      SUPREME COURT REPORTS                      [2021] 13 S.C.R.


A     (vi)   in case of death of a consumer, his legal heir or legal
             representative; or
      (vii) in case of a consumer being a minor, his parent or legal
            guardian;
      32. Section 38(11) reads as under:-
B
         “38. Procedure on admission of complaint.
         (11) Where the complainant is a consumer referred to in
         sub-clause (v) of clause (5) of section 2, the provisions of
         Order I Rule 8 of the First Schedule to the Code of Civil
C        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 Commission thereon.”
      33. Section 35(1) reads as under:
D        “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 delivered or any service provided or
         agreed to be provided, may be filed with a District
         Commission by—
E        (a) the consumer,—
         (i) to whom such goods are sold or delivered or agreed to
             be sold or delivered or such service is provided or
             agreed to be provided; or
         (ii) who alleges unfair trade practice in respect of such
F             goods or service;
         (b) any recognised consumer association, whether the
             consumer to whom such goods are sold or delivered
             or agreed to be sold or delivered or such service is
             provided or agreed to be provided, or who alleges
G            unfair trade practice in respect of such goods or
             service, 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 Commission, on behalf of, or for the
H            benefit of, all consumers so interested; or
      BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                                 961
       VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

      (d) the Central Government, the Central Authority or the State            A
          Government, as the case may be:
      Provided that the complaint under this sub-section may be
      filed electronically in such manner as may be prescribed.
       34. A careful reading of the above provisions would show that
there is no scope for the contention that wherever there are more               B
consumers than one, they must only take recourse to Order I Rule 8
CPC, even if the complaint is not on behalf of or for the benefit of, all the
consumers interested in the matter. There may be cases where only “a
few consumers” and not “numerous consumers” have the same interest.
There is nothing in the Act to prohibit these few consumers from joining        C
together and filing a joint complaint. A joint complaint stands in contrast
to a complaint filed in a representative capacity. For attracting the
provisions of Section 35(1)(c), the complaint filed by one or more
consumers should be on behalf of or for the benefit of numerous
consumers having same interest. It does not mean that where there are
only very few consumers having the same interest, they cannot even              D
join together and file a single complaint, but should take recourse only to
independent and separate complaints.
       35. It is true that Section 2(5)(i) uses the expression “a consumer”.
If the vowel “a” and the word “consumer” appearing in Section 2(5)(i)
are to be understood to exclude more than one person, it will result in a       E
disastrous consequence while reading Section 2(5)(vi). Section 2(5)(vi)
states that in the case of death of a consumer, “his legal heir or legal
representative” will be a complainant. Unless the words “legal heir”
and “legal representative” are understood to mean ‘legal heirs’ and
‘legal representatives’, a meaningful reading of the provision may not be       F
there.
       36. Under Section 13(2) of the General Clauses Act, 1897, words
in the singular shall include the plural and vice versa in all Central Acts
and Regulations, unless there is anything repugnant in the subject or
context. We cannot read anything repugnant in the subject or context of         G
Section 2(5) or 35(1)(c) or 38(11) of the Consumer Protection Act, 2019
to hold that the word in the singular, namely, “consumer” will not include
the plural.
       37. We may take for example a case where a residential apartment
is purchased by the husband and wife jointly or by a parent and child
                                                                                H
962             SUPREME COURT REPORTS                          [2021] 13 S.C.R.


A     jointly. If they have a grievance against the builder, both of them are
      entitled to file a complaint jointly. Such a complaint will not fall under
      Section 35(1)(c) but fall under Section 35(1)(a). Persons filing such a
      complaint cannot be excluded from Section 2(5)(i) on the ground that it
      is not by a single consumer. It cannot also be treated as one by persons
      falling under Section 2(5)(v) attracting the application of Order I Rule 8
B
      CPC read with Section 38(11).
             38. Therefore, the proper way of interpreting Section 35(1) read
      with section 2(5), would be to say that a complaint may be filed: (i) by a
      single consumer; (ii) by a recognised consumer Association; (iii) by one
      or more consumers jointly, seeking the redressal of their own grievances
C     without representing other consumers who may or may not have the
      same interest; (iv) by one or more consumers on behalf of or for the
      benefit of numerous consumers; and (v) the Central Government, Central
      Authority or State Authority.
            39. It must be remembered that the provisions of the Consumer
D     Protection Act are in addition to and not in derogation of the provisions
      of any other law for the time being in force, by virtue of Section 100.
      Even Section 38 which prescribes the procedure to be followed by the
      Commission for enquiring into the complaint, does not expressly exclude
      the application of the provisions of CPC. Though Sub-sections (9), (11)
E     and (12) of Section 38 make specific reference only to a few provisions
      of the Code of Civil Procedure, the principle behind Order I Rule 1
      enabling more than one person to join in a suit as plaintiff is not expressly
      excluded.
             40. Therefore, we are of the considered view that while the
F     National Commission was wrong in this case, in the peculiar facts and
      circumstances in permitting an application under Section 35(1)(c) read
      with Order I Rule 8 CPC, it does not mean that the complaint filed by
      the respondents itself is liable to be thrown out. The complaint filed by
      the respondents may have to be treated as a joint complaint and not a
      complaint in a representative capacity on behalf of 1134 purchasers.
G     The purchasers of other flats, such as the intervenors herein may join as
      parties to the consumer complaint, if they so desire. As a matter of fact,
      it is stated by the intervenors that pursuant to the impugned order,
      advertisements were issued and the intervenors have already filed
      impleadment application before the National Commission. They are
H     entitled to be impleaded.
       BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR                                 963
        VIRMANI & ORS. [V. RAMASUBRAMANIAN, J.]

        41. In view of the above, the appeal is allowed, the impugned            A
order of the National Commission is modified to the effect that the
complaint filed by the respondents shall be treated as a joint complaint
filed on behalf of only the respondents herein and not as a complaint
filed in a representative capacity on behalf of or for the benefit of all the
owners of all the 1134 flats. Persons who wish to implead themselves as
                                                                                 B
parties to the complaint filed by the respondents, may be allowed by the
National Commission to do so, provided their grievance is also limited to
the grievance as projected by the respondents in their consumer complaint.
The intervenors herein, in view of what is stated in their application,
shall also be allowed to be impleaded in the consumer complaint. The
intervention application is closed with the above direction. There shall         C
be no order as to costs.


Devika Gujral                                                  Appeal allowed.

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