Q. We are a group of 28 home buyers who booked flats for a project in Andheri in 2014, 2015, and 2016. The project has four towers with 320 flats. The builder promised possession to some in December 2017 and others in March 2018. The amount each one of us has paid for our 1 or 2 BHK flats ranges from Rs35 lakh to Rs90 lakh. Looking at the present speed of work, we don’t think that the builder will be able to give us possession before December 2025. We have therefore decided to exit from this project and demand a refund of our money with interest and compensation. We want to file a complaint for our group of 28 home-buyers in consumer court. We want your guidance on the following: 1) Do we have to file 28 individual complaints or can we file one joint complaint? 2) For filing a complaint jointly do we have to form and register an association of consumers? 3) Which will be the appropriate Consumer Court for us considering the pecuniary jurisdiction? 4) Apart from 28 of us, many other buyers in this project are suffering this long delay. Is it advisable to file a class action complaint against the builder for the benefit of all home buyers in this project?

- Sandeep Satam, Andheri

A. The Consumer Protection Act, 2019 defines who is a “complainant” or in short who can file a complaint in consumer courts [Refer sec 2 (5)]. Accordingly any consumer or a voluntary registered consumer organisation or state or central government or Central Consumer Protection Authority can file a complaint in consumer court.

Besides this, even one or more consumers can also file a complaint where numerous consumers have the same interest. As such each one you 28 homebuyers can file his/her complaint in the appropriate consumer court. From the above definition you will note that there is no express provision for a group of consumers to file a joint complaint.

This topic was a subject matter of a litigation before the National Commission (NCDRC) and then eventually Supreme Court. The NCDRC had taken a view that the definition of “complainant” does not provide for a few consumers coming together and filing a joint complaint. However, the Supreme Court in “Brigade Enterprises v/s Anil Kumar Veermani” has settled this issue now. The Supreme Court has noticed this ambiguity and has ruled that taking into consideration the over all objective of the Consumer Protection Act (CPA), 2, the joint complaint by a few consumers coming together is not barred under CPA and hence the consumer commissions should entertain the complaints filed by a group of consumers coming together. Hence to answer your first question you have an option of either filing separate individual complaint by each one or a joint group complaint of 28 homebuyers. Secondly, in view of this Supreme Court judgement, you don’t have to go for forming a consumer association for this purpose.

The Supreme Court in the Brigade Enterprises case has also clarified how the pecuniary jurisdiction would be decided in such case. In such cases, the value of the consideration paid by all the consumers in the group has to be totalled together. If it is less than Rs50 lakh, the complaint will have to be filed before the district commission.

If the total consideration paid is more than Rs50 lakh but less than Rs2 crore, then the complaint has to be filed in state commission. In your case, you will have to take the total of the consideration paid by all 28 homebuyers. I am sure it would exceed Rs2 crore and hence you will be required to file this group complaint in the National Commission in Delhi.

Fortunately, now for filing or even for actual hearing you need not physically visit NCDRC in Delhi. You can file the complaint online and you can also attend the hearings online.

Although one can file a class action complaint in Consumer Court for the benefit of all home-buyers, I would say it is not advisable in your case to go for class action. Because as per the Supreme Court judgement, there has to be “sameness of the interest” of all consumers, which you will not find in your case. In the scenario of the delayed housing project, some would be keen to exit from the project and claim a full refund, interest and compensation.

(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)