1.       The present First Appeal has been filed against the order dated 08.03.2022 passed by State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (in short ‘State Commission’) in Consumer Complaint No.15/2021, whereby the State Commission held that the Consumer Complaint filed by the Complainant was maintainable. The State Commission also gave three weeks time to the Opposite Parties to file their reply and listed the matter for hearing on 01.04.2022. The impugned order dated 08.03.2022 reads as follows: -

“Therefore, the Complaint is found to be maintainable after proper examination of the objection regarding the maintainability of the complaint as raised by the opposite parties.

          Accordingly, the learned Counsel for the opposite parties is given 3 weeks time to file his parawise reply affidavit to the complaint. Accordingly, the reply affidavit should be filed by 28.03.2022 after serving a copy of it on the learned advocate for the complainants and thereafter the rejoinder to reply affidavit should be filed till 31.03.2022 by the learned advocate for the complainants.

          The present complaint be listed before this Bench (Hon’ble Justice Shri Ashok Kumar, President and Hon’ble Shri Rajendra Singh, Member) on 01.04.2022 for hearing.”

2.       Aggrieved by the impugned order the Opposite Parties have filed the instant Appeal.

3.       Heard the Learned Counsel for the Appellants and Respondents Nos.2 to 5. Respondent No.1 was proceeded ex-parte.

4.       Learned Counsel for the Appellants/Opposite Parties submitted that the State Commission passed the impugned order in total disregard of the judgment of Hon’ble Supreme Court in Brigade Enterprises Ltd. vs. Anil Kumar Virmani, Civil Appeal No.1779/2021 as the reliefs sought by the Complainants are not common. He submitted that the State Commission failed to appreciate that the reliefs sought by the Complainants were not common. He further submitted that Complainant No.1 sought refund of the amount deposited with the Appellants and Complainants Nos.4 and 5 sought possession of the units allotted to them. The Complainants, thus, mislead the State Commission by joining different cause of action to invoke the jurisdiction of the State Commission. Further, the impugned order is against the principle laid down by this Commission in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd. CC/97/2016.

5.       Learned Counsel for the Respondents/Complainants No.2 to 5 submitted that the State Commission passed the impugned order keeping in view the provisions of Section 35 (1) (c) of the Consumer Protection Act, 1986, which provided that the complaint filed by one or more consumers having same interest would be maintainable before the Consumer Forum. He further submitted that there is no violation of principle laid down by this Commission in Ambrish Kumar Shukla (supra). It was also submitted that while passing the impugned order the State Commission also took into consideration the judgment relied by the Learned Counsel for the Appellants in Brigade Enterprises Ltd. (supra). The impugned order is justified and the Appeal deserves to be dismissed.

6.       The only issue before this Commission, relates to maintainability of the Consumer Complaint. In this regard, Section 2 (5) of the Consumer Protection Act, 2019 is relevant, which reads as follows:

(5) "complainant" means— (i) a consumer; or

 (ii) any voluntary consumer association registered under any law for the time being in force; or

(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

(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”

The Complainants claim that their case is covered under clause (v) of Section 2 (5) of the Act. The Complainants filed a joint Complaint before the State Commission and the State Commission after hearing the Learned Counsel for the Parties and perusing the record passed the impugned order. To appreciate the contention of the Learned Counsel for the Parties, it is necessary to look into the prayer made in the Complaint. It reads as follows:

1. Refund the money deposited by the complainant No.1 against the booking of flat of Rs.5275663/- along with the interest @ 24% from the date of payments by the company to its actual realization by the complainant.
2. The opposite party may be directed to pay the compensation of Rs.10,00,000/- (Ten lakh) for the mental agony and financial loss suffered by the complainants.
3. To direct the opposite party to pay Rs.20,00,000/- (Twenty lakh only) @ 10.50 because complainant No.1 took loan from the bank and paying interest till date and also award the rent charges paying by the complainant No.1 per month Rs.25,000/-.
4. To direct the Opposite Party to provide Occupancy certificate and Completion certificate and to execute the sale deed of the said Flat/Unit of complainant No.2 to 5 or return the total amount deposited by the complainants @ 24% interest per annum.
5. To direct the opposite party to pay interest at 24% per annum on Rs.48,08,859/- from the date of deposit of amount till the date of providing actual possession of the said flat/unit to complainant 2 and 3.
6. To direct the Opposite Party to pay Rs.25,00,000/- to complainant No.2 and 3 with interest of 10.50% because complainants took loan from the bank and paying interest till date.
7. To direct the opposite party to pay interest at 24% per annum on Rs.48,62,561/- from the date of deposit of amount till the date of providing actual possession of the said flat/unit to complainant Nos. 4 and 5.
8. To direct the opposite party to pay Rs.25,00,000/- of complainant Nos. 4 and 5 with interest at 10.5% because the complainant took look from the bank and paying interest till date.
9. To direct the Opposite Party to pay Rs.10.00 lacs to each complainants on account of damages due to deficiency in service of the Opposite Party and also award cost of litigation of Rs.5,00,000/-.
10. To pass any other order or direction, which this Hon’ble Commission may deem just, fit and proper under the circumstances of the case.”

6.       It is also important to have a look on the judgment of the larger Bench in the matter of Ambrish Kumar Shukla & Ors. (supra) which reads as follows:

 “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 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 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. XXXXXXXXXXXXX

As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure is the sameness of the interest i.e. a common grievance of numerous persons which is sought to get redressed through a representative action. Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size, area of the flat / plot and the date of booking / allotment / purchase, would be wholly immaterial. For instance, if a builder / developer has sold 100 flats in a project out of which 25 are three-bed room flats, 25 are twobed room flats and 50 are one-bed room flats and he has failed to deliver timely possession of those flats, all the allottees irrespective of size of their respective flats / plots, the date of their respective purchase and the cost agreed to be paid by them have a common grievance i.e. the failure of the builder/ developer to deliver possession of the flat / plot sold to them and a complaint filed for the benefit of or on behalf of all such consumers and claiming same relief for all of them, would be maintainable under Section 12(1)(c) of the Consumer Protection Act. The relief claimed will be the same / identical if for instance, in a case of failure of the builder to deliver timely possession, refund, or possession or in the alternative refund with or without compensation is claimed for all of them. Different reliefs for one or more of the consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint.

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A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.”

 8.      From the above, it is clear that as per the finding of the Larger Bench, the Complaint under section 35 (1) (c) of the Act can be proceed on behalf of or for the benefit of the complainants and all other similarly placed consumers provided all of them have common interest or common grievance and they are also seeking same/identical relief. In the instant case, perusal of prayer clause clearly shows that Complaint has been filed by more than one Complainant but the reliefs claimed by them are not identical. Hon’ble Supreme Court in Brigade Enterprises Ltd. vs. Anil Kumar Virmani & Ors. (2022) 4 Supreme Court Cases 138 held as follows:

“A careful reading of the above provisions would show that there is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order 1 Rule 8 CPC, even if the complaint is not on behalf 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 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 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 join together and file a single complaint, but should take recourse only to independent and separate complaints.”

9.       From the above, it is clear that to file a joint Complaint the Complainants should have same interest. In the instant case, the prayers made by the Complainants are different and not same.  

10.     In view of the aforesaid discussion, this is not a fit case for granting permission under Section 35 (1) (c) of the Act. The State Commission erred in allowing the application under Section 35 (1) (c) of the Act. The First Appeal is accordingly allowed, impugned order is set aside and the application under Section 35 (1) (c) of the Act is dismissed. There will be no order as to costs.