NCLAT - To establish sameness of interest, it is not necessary to establish sameness of the cause of action

In BRIGADE ENTERPRISES LIMITED v. ANIL KUMAR VIRMANI & ORS, appeal was filed before the Supreme Court challenging the order of National Consumer Disputes Redressal Commission (NCDRC) 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. allowed the application by relying upon the decision of this Court in the Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy (1990) 1 SCC 608 and the decision of the National Commission in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd. 

The main grievance of the appellant-builder, was 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 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.

The Supreme Court observed that 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. Further, 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 defines a complainant to mean one or more consumers, where there are numerous consumers having the same interest. The Explanation under Order I Rule 8 is of significance. It 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. 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 Consumer Protection Act, 2019, it was necessary for the respondents to include in the consumer complaint, sufficient averments that would show sameness of interest. However, in this matter, 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 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 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 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. 

Referring to judgments in Tamil Nadu Housing Board (supra), Rameshwar Prasad Shrivastava & Ors. vs. Dwarkadhis Projects Private Limited & Ors. (2019) 2 SCC 417, Anjum Hussain and Ors. vs. Intellicity Business Park Private Limited and Ors. (2019) 6 SCC 519, Vikrant Singh Malik and Ors. vs. Supertech Limited and Ors., the SC held that 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 and by that logic the NCLAT 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.