Brigade Enterprises v. Anil Kumar Virmani & Ors

Case snapshot

Sections / provisions: Section 35(1)(c) of Consumer Protection Act; 2019 and Order 1 Rule 8 of Code of Civil Procedure; 1908

Questions before the Court / Tribunal

• *Brigade Enterprises Vs Anil Kumar Virmani & Ors* *Forum-Supreme Court of India* *Date-17th December, 2021* *Sub-Whether suit for delay in delivery of possession by few apartment owners in a complex can be treated as having been made on behalf of all the apartment owners under the Consumer Protection Act and in case it is not so what remedy is available to such apartment owners?* The Supreme Court in this case was dealing with a case where 91 purchasers of 51 apartments out of total 1134 apartments in *Brigade Lakefront* filed an application u/s 35(1)(c) of the Consumer Protection Act 2019 which is somewhat similarly worded as Order 1 Rule 8 of the Code of Civil Procedure which operates both ways and 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. The court noted that in…
• Which factual, statutory and procedural conditions controlled the requested relief?
• How did the forum apply the governing provisions to the evidence and procedural history recorded in this case?

Material facts and procedural background

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1779 of 2021 BRIGADE ENTERPRISES LIMITED ... Appellant (s) Versus ANIL KUMAR VIRMANI & ORS. ... Respondent(s) J U D G M E N T V. Ramasubramanian, J. 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. 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. 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 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 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 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. 5. The main grievance of the appellantbuilder, as projected by 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 capacity. It is also the contention of the learned senior counsel for the appellant that there was no commonality of 1 (1990) 1 SCC 608

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: “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, 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; 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 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 Commission thinks fit and proper, in the facts and cir cumstances 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 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 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 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

Appellant / petitioner / assessee submissions

The judgment does not separately label this side’s submissions in an independently extractable passage. No contention is inferred; read the full record.

Revenue / respondent submissions

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 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 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 the reliefs prayed for, by the respondents in their consumer 2 (2020) 9 SCC 145

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 be the only deficiency in service on the part of the appellantbuilder. 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 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. 24. Reliance is placed by the learned senior counsel for the respondents, upon the Judgment of this Court in Chairman,

representative capacity for and on behalf of the owners of all the 1134 flats. 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 “ 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: “(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 represen tative; or

Court / Tribunal analysis and reasoning

completion certificate for the Crimson block was issued by the architect on 10.08.2018, the occupancy certificate was issued partially 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 making payment; (ix) that on account of the delay on the part of the appellant in handing over possession, the buyers suffered losses in the 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 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 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: “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 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; 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 mean legal possession only where said possession had been given or offered to be given upon

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 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 the brunt of the absolute mismanagement of project by the OPs.

15. 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. 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 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 twoway 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. 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 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;

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 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. 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 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

National Commission which dismissed an application under Section 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 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. 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

Operative decision and relief

complaint and not a complaint in a representative capacity on behalf of 1134 purchasers. 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 entitled to be impleaded. 41. In view of the above, the appeal is allowed, the impugned 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 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

Ratio and legal principle

The narrow proposition associated with Brigade Enterprises v. Anil Kumar Virmani & Ors concerns *brigade enterprises vs anil kumar virmani & ors* *forum-supreme court of india* *date-17th december, 2021* *sub-whether suit for delay in delivery of possession by few apartment owners in a complex can be treated as having been made on behalf of all the apartment owners under the consumer protection act and in case it is not so what remedy is available to such apartment owners?* the supreme court in this case was dealing with a case where 91 purchasers of 51 apartments out of total 1134 apartments in *brigade lakefront* filed an application u/s 35(1)(c) of the consumer protection act 2019 which is somewhat similarly worded as order 1 rule 8 of the code of civil procedure which operates both ways and 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. the court noted that in… The proposition cannot be separated from the judgment’s facts, the governing statutory version, the forum’s jurisdiction, and the exact relief recorded in CIVIL APPEAL NO.1779 of 2021.

For working-paper purposes, the decision should be cited only after matching the material facts and reading the passages under the judgment-grounded record above. The editorial outcome label “Allowed” is a navigation aid; it does not replace the operative order or explain every issue in a multi-issue case.

Why this judgment matters

This decision is relevant when a file raises the same central question identified in the source headnote: *Brigade Enterprises Vs Anil Kumar Virmani & Ors* *Forum-Supreme Court of India* *Date-17th December, 2021* *Sub-Whether suit for delay in delivery of possession by few apartment owners in a complex can be treated as having been made on behalf of all the apartment owners under the Consumer Protection Act and in case it is not so what remedy is available to such apartment owners?* The Supreme Court in this case was dealing with a case where 91 purchasers of 51 apartments out of total 1134 apartments in *Brigade Lakefront* filed an application u/s 35(1)(c) of the Consumer Protection Act 2019 which is somewhat similarly worded as Order 1 Rule 8 of the Code of Civil Procedure which operates both ways and 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. The court noted that in… Its practical value lies in the way the Supreme Court of India connected the governing provisions—Section 35(1)(c) of Consumer Protection Act; 2019 and Order 1 Rule 8 of Code of Civil Procedure; 1908—to the procedural posture and evidence before it.

The authority level is Supreme Court. That affects persuasive or binding weight, but authority level alone is never enough. Territorial jurisdiction, statutory period, the identity of the challenged order, and later appellate treatment must all be checked before the case is used in advice, a submission, or litigation strategy.

Practitioner action points

• Begin with the complete judgment and mark the paragraphs supporting the exact proposition relied upon.
• Match the statutory version of Section 35(1)(c) of Consumer Protection Act; 2019 and Order 1 Rule 8 of Code of Civil Procedure; 1908 and the decision date 2021-12-17; do not assume the current text is identical.
• Compare the notice, assessment, appeal or other procedural sequence with the chronology recorded in this case.
• Verify the stated later-history status and any review, appeal, SLP, curative or rectification proceedings before citation.
• Record why the client’s evidence is materially similar, and also record any fact capable of distinguishing the result.

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Detailed reliance and distinction analysis

Identity check. Confirm that the cited cause title is Brigade Enterprises v. Anil Kumar Virmani & Ors, the proceeding is CIVIL APPEAL NO.1779 of 2021, and the decision is dated 2021-12-17. These fields are taken from the judgment record and should appear exactly in the citation note.

Bench check. The judgment identifies the coram as V. Ramasubramanian, J. (authoring judge identified in judgment). A later order by another bench, a larger bench, or a higher forum may alter the weight or interpretation of the proposition.

Provision check. The source associates the dispute with Section 35(1)(c) of Consumer Protection Act; 2019 and Order 1 Rule 8 of Code of Civil Procedure; 1908. The practitioner should place the historical statutory text next to the current text and identify every amendment, proviso, explanation, rule or notification that could change the analysis.

Fact check. The source issue is not a free-standing abstract rule. It arises from the concrete record summarized above. A reliable application note should list the common facts, the different facts, and whether each difference affects jurisdiction, admissibility, limitation, burden, computation or relief.

Remedy check. The recorded result is Allowed. Where a matter is remanded, set aside, partly allowed, or disposed with directions, the exact operative language is more important than a binary winner/loser label.

History check. The current closure state is Review / curative petition docket: check pending. If that state is pending, the page does not assert that no later case exists. It means the check remains open and must be completed at the point of professional reliance.

Section / provision impact

• Section 35(1)(c) of Consumer Protection Act — apply the exact version considered in the judgment.
• 2019 and Order 1 Rule 8 of Code of Civil Procedure — apply the exact version considered in the judgment.
• 1908 — apply the exact version considered in the judgment.

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