In CIVIL APPEAL NO.1676 OF 2019, ANJUM HUSSAIN vs INTELLICITY BUSINESS PARK PVT. LTD, complaint was filed by the appellant along with 43 others before the NCDRC due to non-delivery of office space by the respondent. The application was rejected by NCDRC with the observation that the complaint has been instituted for the benefit of entire class of buyers, who have booked shops/offices in a project namely “Intellicity” consisting of residential units, shops and offices at Greater Noida. The scope of this complaint is not restricted only to the complainants. 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. Since the scope of the complaint is not restrict only to the complainants and encompasses all the allottees of the shops/commercial units, it would be maintainable as a class action only if it is alleged and shown that all the allottees of the shops/commercial units in the above referred project had booked the same solely for the purpose of the earning their livelihood by way of self-employment. NCDRC observed that in the absence of such an averment in the complaint, no evidence can even be led to prove that not only the complainants but all the allottees of the shops/commercial units had booked the same solely for the purpose of the earning their livelihood by way of self-employment. Even otherwise, the complainants cannot know the purpose for which the allottees, other than the complainants had booked the shops, commercial units in the aforesaid project.
On appeal, the Supreme Court observed that the Full Bench of the National Commission in Ambrish Kumar Shukla and Ors. vs. Ferrous Infrastructure Pvt. Ltd. had referred to the judgment of the Supreme Court in Chairman, Tamil Nadu Housing Board, Madras vs. T. N. Ganapathy wherein it was decided that 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 Supreme Court setting aside the order of the NCDRC decided that in the present case the NCDRC completely lost sight of the principles so clearly laid down in the decisions referred to above.
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