Class action: Sameness of interest is a given

The builder contended there was no sameness of interest: some buyers had accepted compensation, others had protested and accepted, and yet others had refused it outright

An interesting case came up before the National Commission recently. Several representative or class action complaints had been filed by different flat purchasers against various builders for deficiency in service and unfair trade practices. A representative complaint is filed on behalf of unidentified consumers, all of whom are similarly situated. The order passed is also applicable to all even though they are not a party to the litigation.

The issue before the National Commission was whether such complaints are maintainable. The matter was referred to a larger bench of three members comprising Justice R.K. Agrawal, president of the National Commission, and members S.M. Kantikar and Binoy Kumar.

The complainants contended that even though the cost, size, and area of the flats differed, this was immaterial. A representative complaint was maintainable as the grievances were common and the relief claimed was identical. The complainants argued that “sameness of interest” should be the only relevant criterion for determining the maintainability of a representative complaint.

The Commission observed that there was a difference between a representative and a joint complaint. When only a few consumers have the same common interest, they can join together to file a complaint for the redressal of their grievances, without representing other consumers who may or may not have the same interest.

The Commission also observed that pecuniary jurisdiction in a joint complaint would not be governed by the consideration paid by each individual consumer but by the total consideration paid by all the complainants.

The Commission also noted the interpretation of the law by the Supreme Court in the case of Brigade Enterprise Ltd. versus Anil Kumar Virmani & Others (Ors.), where it had been laid down that in a joint complaint, each individual complainant must specifically plead his/her case and produce the respective documents.

By contrast, in a representative complaint, the consumers may have “commonality of interest”, yet the complaint would not be maintainable unless there is “sameness of interest”, as laid down by the Supreme Court in Vikrant Singh Malik & Ors. versus Supertech Ltd. & Ors. So, a representative complaint would be permissible only when it is filed on behalf of and for the benefit of consumers having the same interest.

Taking Akshay Kumar & Ors. versus Adani Brahma Synergy Pvt. Ltd. as the lead case, the National Commission noted that the complaint did not specify any details about the other consumers for and on whose behalf a representative complaint was sought to be filed. It observed that even though the cause of action may be the same, it could not automatically be construed as “sameness of interest”.

The Commission noted the objections of the builders that some flat purchasers had accepted compensation for delay as specified in the agreement without raising any objection, others had accepted it under protest, and yet others had outright refused compensation. So, a representative complaint could not be filed as there was no “sameness of interest” among the purchasers.

In its order of March 6, 2023, delivered by Justice R.K. Agrawal on behalf of the Bench, the National Commission concurred with the builder and refused to grant permission to the complainants to file a representative complaint. However, the Commission noted that the Consumer Protection Act permitted the complainants to file a joint complaint. It directed the complaint to be treated as a joint complaint and observed that the total consideration paid by all the complainants fell within the pecuniary jurisdiction of the National Commission. It ordered that the joint complaint would now be adjudicated on its merits.

The writer is a consumer activist