Civil Appeal format Section 23 of Consumer Protection Act 1986 to be filed in Supreme Court of India against Judgment 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 __.__.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. __ 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. ____ 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 __.__.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.

__.__.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).

__.__.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 __.__.20__ PASSED BY THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION IN CC NO. ___ 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 __.__.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