Civil Appeal format Section 23 of Consumer Protection Act 1986 to be
filed in Supreme Court of India against Judgement of NCDRC.

Civil Appeal against Judgment of National Consumer Disputes Redressal
Commission Section 23 of Consumer Protection Act 1986. Format
of Civil Appeal against NCDRC order is:

 

 

SYNOPSIS

The Appellants, herein are filing the present appeal under Section 23 of the
Consumer Protection Act, 1986 (‘Act 1986’) challenging the interim order dated
21.11.20__(hereinafter referred as “Impugned Order”) passed by the Hon’ble
National Consumer Disputes Redressal Commission, New Delhi (“the National
Commission”) in Consumer Complaint No. 10__ of 20__; whereby the National
Commission has erroneously disposed of the said consumer complaint instituted
under section 12 (1) (c) of the Consumer Protection Act, 1986 by giving a
narrowed and restrictive interpretation to the said provision of law regarding
“sameness of interest” of the consumers affected and arrayed as party in the
consumer complaint before the National Commission against deficiency in services
and unfair and restrictive trade practices adopted by the contesting Respondents
(DLF Ltd. and others) which are clearly untenable in law and on facts.

While disposing of the said consumer complaint, instituted by the appellants
herein (after hearing it for long, and soon before it was to be heard on
merits), the National Commission, erred in not- appreciating the facts of the
present case, the principle of ‘sameness of interest’ in terms of Order 1, Rule
8 of the Code of Civil Procedure, and Section 12 (1) (c) of the Consumer
Protection Act, 1986 and erred in giving restrictive interpretation of the
requirement of having ‘oneness of interest’ ignoring the larger public interest.
It is important to mention that the National Commission, while disposing of the
Consumer Complaint No. 10__ of 20__; in terms as stated above, erred on facts,
and law, on account of the following grounds:

i. That the National Commission failed to consider that the exclusive
requirement for institution of class/ representative action under section 12 (1)
(c) of the Consumer Protection Act, 1986 (Act, 1986); r/w Order 1, Rule 8 of the
Code of Civil Procedure 1908 (the Code) is “same interest” and the said sameness
of interest (or commonness/ oneness of interest) is adjudged on the principle
that the persons instituting class action must have common grievance which they
seek to redress. It is important to mention that the class initiating action for
and on behalf of its members seeking redressal of common grievance must be
identifiable; and enjoying sameness, by virtue of identical contractual
relationship with the Respondents (with regard to the same project in question).
The National Commission erred not in appreciating that the appellants have same
interest in the instant case, and the prayers made in the consumer complaint are
equally applicable to all the appellants by virtue of identical contractual
relationship with the Respondents. This Hon’ble Court in case of Tamil Nadu
Housing Board v. T N Ganpathy [(1990) 1 SCC 608] has held that “…the condition
necessary for application of the provisions is that the persons on whose behalf
the suit is being brought have the same interest. In other words, either the
interest must be common or they must have a common grievance which they seek to
get redressed”.

ii. That the National Commission erred in not appreciating that the consumer
complaint no. 10__ of 20__ was pending adjudication at much advanced stage and
rather than hearing the matter on merits, the National Commission proceeded in
making classification of consumers without application of mind, after having
treated the said compliant as class action under section 12 (1) (c) of the Act,
1986; vide its order dated 30.11.20__. The National Commission, further allowed
impleadement of consumers having same interest, vide its various orders dated
_____ after rejecting objections of Respondents on merit. Said orders having
attained finality, the National Commission erred in passing the Impugned Order,
on identical facts and legal submissions.

LIST OF DATES

2008-2011 The Respondents launched the Township project at Delhi. The
Respondents promised a Township style living complete with Hospital, School,
Shopping complex, Clubhouse with world class facilities. Several marketing
emails were sent out to prospective buyers and glitzy brochures were printed.

21.11.20__ The National Commission has erroneously disposed of the said
consumer complaint instituted under section 12 (1) (c) of the Consumer
Protection Act, 1986 by giving a narrowed and restrictive interpretation to the
said provision, regarding “sameness of interest” of the consumers affected and
arrayed as party in the consumer complaint against deficiency in services and
unfair and restrictive trade practices adopted by the contesting Respondents
which are clearly untenable in law, and on facts (Impugned Order).

18.12.20__ Hence, this appeal.
 

 

IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
(UNDER SECTION 23 OF THE CONSUMER PROTECTION ACT, 1986)

CIVIL APPEAL NO. OF 20__

(APPEAL UNDER SECTION 23 OF THE CONSUMER PROTECTION ACT, 1986 AGAINST THE
INTERIM ORDER DATED 21.11.20__ PASSED BY THE NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION IN CC NO. 10__ OF 20__)
 

BETWEEN

                                                               
POSITION OF PARTIES
                                                               
In the NCDRC         In this Hon’ble Court
ABC                                                         
Complainant No. 1    Appellant No. 1

VERSUS

DEF LTD                                            
Opposite Party        Respondent  No. 1

To,
The Hon’ble Chief Justice of India
& His Companion Judges of this Hon’ble Court

Humble civil appeal on behalf of the Appellants above-named:

Most Respectfully Showeth:

1. The Appellants, herein are filing the present appeal under Section 23 of
the Consumer Protection Act, 1986 (‘Act 1986’) challenging the interim order
dated 21.11.20__ (hereinafter referred as “Impugned Order”) passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (“the
National Commission”) in Consumer Complaint No. 10__ of 20__; whereby the
National Commission has erroneously disposed of the said consumer complaint
instituted under section 12 (1) (c) of the Consumer Protection Act, 1986 by
giving a narrowed and restrictive interpretation to the said provision,
regarding “sameness of interest” of the consumers affected and arrayed as party
in the consumer complaint before the National Commission against deficiency in
services and unfair and restrictive trade practices adopted by the contesting
Respondents which are clearly untenable in law and on facts.

2. The present appeal raises the following substantial questions of law for
consideration of this Hon’ble Court:

A. Whether the existence of ‘sameness of interest’ vis-a-vis existence of
sufficient community of interest among the persons on whose behalf or against
whom the suit is instituted is the sole guiding factor for institution of class
action under Order 1 Rule 8 of the Code of Civil Procedure, 1908 read with
section 12 (1) (a) of the Consumer Protection Act, 1986?

B. Whether the National Commission erred in law in making class distinction,
ignoring the unfair trade practices and coercive practices adopted by the
Respondents, in holding that the consumer complaint of the appellants herein,
fell short of satisfying the test of oneness of interest, based on the decision
dated 07.10.2016, of the National Commission, in Ambrish Kumar Shukla & Ors. Vs.
Ferrous Infrastructure Pvt. Ltd., Consumer Complaint No.97 of 2016?

3. The facts and circumstances leading to the filing of the present appeal are
as under:

3.1 That the appellants are aggrieved by the numerous instances of deficiency in
services and unfair trade practices adopted by the Respondents on various issues
regarding the project floated by the Respondents in the name and style of ___ –
_________ in Delhi on 26.04.20__. The said project now contains __ towers and
___ flats. The appellants having been lured by the misleading advertisements and
promises of delivering the said project with world class facilities etc. booked
flats in the said project. The appellants have common interest/ same interest in
terms of section 2 (1) (b) (iv) of the Consumer Protection Act, 1986. It is
important to mention that each appellant entered into the agreements with the
respondents with identical terms and stipulations in the contract, called the
Apartment Buyers Agreement. Possession in terms of the agreement was to be given
by the end of December, 2012.

3.2 The Respondents also filed its written objections to the amended
complaint. A copy of the Consumer Complaint No. 10__of 20__ with application u/s
12 (1) (c) of the Act, 1986; dated 20.08.20__ is annexed and marked as Annexure
P-1 (Pages to ). A copy of the order dated 30.09.2015 passed by the National
Commission in the Consumer Complaint No. 10__ of 20__ is annexed and marked as
Annexure P-2 (Pages to ).

4. Aggrieved by the aforesaid impugned interim order dated 21.11.20__ passed
by the National Commission in Consumer Complaint No. 10__ of 20__; the
Appellants herein, are filing the appeal under Section 23 of the Consumer
Protection Act, 1986, on the substantial questions of law, set out in Para 2 of
the appeal, and on the following grounds, amongst others:-

GROUNDS
A. BECAUSE the National Commission failed to consider that the exclusive
requirement for institution of class/ representative action under section 12 (1)
(c) of the Consumer Protection Act, 1986 (Act, 1986); r/w Order 1, Rule 8 of the
Code of Civil Procedure 1908 (the Code) is “same interest” and the said sameness
of interest (or commonness/ oneness of interest) is adjudged on the principle
that the persons instituting class action must have common grievance which they
seek to redress. It is important to mention that the class initiating action for
and on behalf of its members seeking redressal of common grievance must be
identifiable; and enjoying sameness, by virtue of identical contractual
relationship with the Respondents (with regard to the same project in question).
The National Commission erred not in appreciating that the appellants have same
interest in the instant case, and the prayers made in the consumer complaint are
equally applicable to all the appellants by virtue of identical contractual
relationship with the Respondents. This Hon’ble Court in case of Tamil Nadu
Housing Board v. T N Ganpathy [(1990) 1 SCC 608] has held that “The condition
necessary for application of the provisions is that the persons on whose behalf
the suit is being brought have the same interest. In other words, either the
interest must be common or they must have a common grievance which they seek to
get redressed”.

5. The Appellants crave leave to add to the grounds mentioned herein above and
submits that the contentions herein above are in the alternative and without
prejudice to one another.

6. The Appellants states that no other appeal against the impugned order has
been filed by the Appellant before this Hon’ble Court or any other Court.

7. The Appellants submits that the Appellant has paid the requisite court
fees in the Appeal.

PRAYER
8. On the basis of facts and averments made in the foregoing paragraphs, it is
most respectfully prayed that this Hon’ble Court may be pleased to:

(a) Admit and allow the instant appeal filed by the Appellants under Section
23 of the Consumer Protection Act , 1986 and set aside the impugned interim
order dated 21.11.20__ passed by the National Consumer Disputes Redressal
Commission; New Delhi, in Consumer Complaint No. 10__ of 20__.

(c) Pass such order or further order (s) as the Hon’ble Court may deem just
and proper in the circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE APPELLANT AS DUTY BOUND SHALL EVER PRAY

FILED BY:

Advocate for the petitioner

Drawn By:
Drawn on:
Filed on:
New Delhi