Supreme Court of India
ANJUM HUSSAIN & ORS.versusINTELLICITY BUSINESS PARK PVT. LTD. & ORS.
- Citation
- 2019 INSC 673
- Decided
- 10 May 2019
- Disposal
- Appeal(s) allowed
- Bench
- ARUN MISHRA
Holding
A complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable when the consumers share a common grievance and sameness of interest against the same service provider, irrespective of proof of each consumer’s individual purpose.
Summary
The appellants, a group of 44 buyers, had booked office and shop spaces in the Intellicity project and the builder failed to deliver possession within the agreed four‑year period. They filed a class action under Section 12(1)(c) of the Consumer Protection Act, 1986 seeking refund, interest and compensation, but the National Consumer Disputes Redressal Commission dismissed the complaint on the ground that it was not shown that all allottees had purchased the units for self‑employment. The Supreme Court examined whether a common grievance and common interest among the consumers sufficed for maintainability of a class action under the Act. Relying on the principles laid down in Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy and the Full Bench decision in Ambrish Kumar Shukla v. Ferrous Infrastructure, the Court held that the requirement is sameness of interest, not proof of each consumer’s purpose. It concluded that the National Commission erred in dismissing the case. Consequently, the appeal was allowed, the order of the National Commission was set aside and the case was restored for further proceedings under Section 12(1)(c).
Issues considered
- Whether a complaint under Section 12(1)(c) of the Consumer Protection Act, 1986 is maintainable when the specific purpose of each consumer (self‑employment) is not individually proved.
- Whether the presence of a common grievance and sameness of interest among multiple consumers satisfies the requirements of Order I Rule 8 of the Code of Civil Procedure for a representative suit.
- Whether the National Consumer Disputes Redressal Commission erred in dismissing the class action on the ground of lack of proof of individual purposes.
Legislation cited
- Code of Civil Procedure, 1908s. Order I Rule 8
- Consumer Protection Act, 1986s. 12(1)(c), s. 13(6), s. 2(1)(b), s. 2(1)(d)
Subjects
class actionconsumer protectioncommon grievanceSection 12(1)(c)Order I Rule 8multiplicity of litigationbuilder delivery failureconsumer rights
Judgment
1036 [2019]
SUPREME COURT 7 S.C.R. 1036
REPORTS [2019] 7 S.C.R.
A ANJUM HUSSAIN & ORS.
v.
INTELLICITY BUSINESS PARK PVT. LTD. & ORS.
(Civil Appeal No. 1676 of 2019)
B MAY 10, 2019
[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]
Consumer Protection Act, 1986 – 12(1)(c) – Appellant no.1
booked office space admeasuring about 440 sq.ft in a project
consisting of residential units, shops and offices launched by the
C
respondent-Builder – Buyer Agreement was executed – 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 the respondent in respect of various units from the same
project – Respondent failed to honour its commitments of delivering
D possession in four years – Appellants 1 to 44 sought refund of the
amounts paid by them to the respondent along with interest and
compensation also filing application u/s.12(1)(c) of the Act –
National Commission concluded that the case could not be accepted
as class action and dismissed the same – On appeal, held: According
to the National Commission, though all the appellants had common
E
grievance that the respondent had not delivered possession of the
respective units booked by them and thus the respondent was
deficient in rendering service, but 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 –
F In Chairman, Tamil Nadu Housing Board, Madras vs. T. N.
Ganapathy it was held by Supreme Court that the provision must
receive an interpretation which would subserve the object for its
enactment – What is required is sameness of interest – It in this light
that the Full Bench of the National Commission in Ambrish Shukla
held that oneness of the interest is akin to a common grievance
G
against the same person – National Commission in the instant case,
completely lost sight of the principles so clearly laid down in the
said decisions – Approach in the instant case was totally erroneous
– Application preferred by the appellants u/s.12(1)(c) of the Act is
maintainable – Case of the appellants restored to the file of the
H
1036
ANJUM HUSSAIN & ORS. v. INTELLICITY BUSINESS PARK 1037
PVT. LTD. & ORS.
National Commission and be proceeded with in accordance with A
law – Code of Civil Procedure, 1908 – Or.I, r. 8.
Allowing the appeal, the Court
HELD: 1.1 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 B
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. In Chairman, Tamil Nadu Housing
Board, Madras vs. T. N. Ganapathy it was held by Supreme C
Court that the persons who may be represented in a Suit under
Order I, 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. [Paras 11, 12] [1042-F-H; 1043-A] D
1.2 Very same issue was dealt with by Full Bench of the
National Commission in Ambrish Kumar Shukla and Ors. vs.
Ferrous Infrastructure Pvt. Ltd.. The National Commission relied
upon the decision of this Court in T.N. Housing Board. It was
observed by Supreme Court in T.N. Housing Board that the E
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.
[Paras 13, 14] [1045-B; 1046-H; 1047-A] F
1.3 However, the National Commission in the instant case,
completely lost sight of the principles so clearly laid down in the
decisions referred to above. The approach in the instant case
was totally erroneous. The Order under appeal is set aside.
The application preferred by the appellants under Section 12(1)(c) G
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. [Paras 15, 16]
[1047-A-C]
H
1038 SUPREME COURT REPORTS [2019] 7 S.C.R.
A Chairman, Tamil Nadu Housing Board, Madras vs. T.
N. Ganapathy (1990) 1 SCC 608 : [1990] 1 SCR 272
– relied on.
Ambrish Kumar Shukla and Ors. vs. Ferrous
Infrastructure Pvt. Ltd. Decision of National Consumer
B Dispute Redressal Commission in Case No. 97 of
2016 on 07.10.2016 – referred to.
Case Law Reference
[1990] 1 SCR 272 relied on Para 12
C CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1676
of 2019.
From the Judgment and Order dated 10.10.2018 of the National
Consumer Disputes Redressal Commission, New Delhi in Consumer
Case No. 2241 of 2018.
D Yash Srivastava, Ms. Satakshi Sood, Rohit Kumar Singh, Advs.
for the Appellants.
Ashutosh Dubey, Santosh C., Ms. Rajshri Dubey, Advs. for the
Respondents.
The Judgment of the Court was delivered by
E
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
F 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
G 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 the respondent in respect of
various units from the same project.
H
ANJUM HUSSAIN & ORS. v. INTELLICITY BUSINESS PARK 1039
PVT. LTD. & ORS. [UDAY UMESH LALIT, J.]
3. Since the respondent had failed to honour its commitments of A
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.
B
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:-
1. This complaint has been instituted for the benefit of entire C
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, D
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.
2. As provided in Section 2(1)(d) of the Consumer Protection E
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- F
employment has thereby been included in the definition of
‘consumer’. Otherwise, a shop/commercial unit is deemed to be
booked for a commercial purpose.
3. Since the scope of the complaint is not restrict only to the
complainants and encompasses all the allottees of the shops/ G
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/ H
1040 SUPREME COURT REPORTS [2019] 7 S.C.R.
A 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
B
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
C 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
D
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.”
E 5. 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.
6. The dismissal of the case as class action is questioned in this
F appeal.
7. We heard Mr. Yash Srivastava, learned Advocate for the
appellants and Mr. Ashutosh Dubey, learned Advocate for the respondent.
8. Relevant provisions of the Act may be adverted to at the outset.
G Sections 2(1)b and 2(1)(d) of the Act define “complainant” and
“consumer” as under:-
(b) “complainant” means –
(i) a consumer; or
H
ANJUM HUSSAIN & ORS. v. INTELLICITY BUSINESS PARK 1041
PVT. LTD. & ORS. [UDAY UMESH LALIT, J.]
(ii) any voluntary consumer association registered under the A
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; B
(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 C
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 D
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 includes any beneficiary of
E
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; F
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; G
9. Section 12 of the Act states:
12. Manner in which complaint shall be made – (1) A complaint in
relation to any goods sold or delivered or agreed to be sold or
H
1042 SUPREME COURT REPORTS [2019] 7 S.C.R.
A 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 (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
C 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
D representative of interests of the consumers in general.”
10. Section 13(6) of the Act reads as under:
13. Procedure on admission of complaint – (1) to (5)……….
(6) Where the complainant is a consumer referred to in sub-clause
E (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.
F
11. 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
G their livelihood by way of self-employment.
12. 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
1
H (1990) 1 SCC 608
ANJUM HUSSAIN & ORS. v. INTELLICITY BUSINESS PARK 1043
PVT. LTD. & ORS. [UDAY UMESH LALIT, J.]
need not have the same cause of action and all that is required for A
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:-
7. On the question of maintainability of the suit in a representative
capacity under Order I, Rule 8 of the Code of Civil Procedure, it B
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 C
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 D
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 E
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 F
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 G
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. There are no words in the H
1044 SUPREME COURT REPORTS [2019] 7 S.C.R.
A 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.
… … …
9. It is true that each of the allottees is interested individually in
B 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
C 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,
D 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
E 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
F 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 under Order I, Rule 8 need not have the
same cause of action. The trial court in the present case was
G
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
H
ANJUM HUSSAIN & ORS. v. INTELLICITY BUSINESS PARK 1045
PVT. LTD. & ORS. [UDAY UMESH LALIT, J.]
judgment, and nothing that has been said or decided in this case is A
applicable to any other group or colony.”
13. 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 B
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 C
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 D
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 E
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 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 F
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 G
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
2
Consumer Case No.97 of 2016, decided on 07.10.2016 H
1046 SUPREME COURT REPORTS [2019] 7 S.C.R.
A 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
B
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
C 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
D 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 behind
permitting a class action will not be achieved, since the remaining
E 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
F 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
G relief and consequently having a community of interest against
the same service provider.”
14. 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
H
ANJUM HUSSAIN & ORS. v. INTELLICITY BUSINESS PARK 1047
PVT. LTD. & ORS. [UDAY UMESH LALIT, J.]
National Commission held that oneness of the interest is akin to a common A
grievance against the same person.
15. 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. B
16. We, therefore, allow this appeal, set aside the Order under
appeal. The application preferred by the appellants under Section 12(1)(c)
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. C
17. The appeal is allowed in aforesaid terms. No costs.
Divya Pandey Appeal allowed.
D
E
F
G
H
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