C.A.No.1118 of 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1118 OF 2016

Sobha Hibiscus Condominium    …..Appellant Versus

Managing Director, M/s. Sobha Developers Ltd. & Anr. …..Respondents

J U D G M E N T

R. Subhash Reddy, J.

1. This  civil  appeal  under  Section 23 of  the Consumer  Protection

Act, 1986 (for short, ‘the Act’), is filed by the complainant, aggrieved by

the order dated 13.05.2015, passed by the National Consumer Disputes

Redressal  Commission (NCDRC),  New Delhi  in Consumer Complaint

No.153 of  2010,  rejecting the complaint  filed by the appellant  on the

ground that, the appellant-Condominium has no locus standi to file the

complaint  since  neither  it  is  a  ‘consumer’  nor  it  is  a  ‘recognised

consumer association’ within the meaning of Section 12 of the Act.

2. The appellant/complainant is a statutory body under provisions of

the Karnataka Apartment Ownership Act, 1972 (for short, ‘1972 Act’).  It

consists of members, who are the owners of the apartments in a multi-

storey building, namely, “Sobha Hibiscus” situated in Amballipur Village,

Varthur Hobli, of South Bangalore Taluk in Karnataka.  The appellant-

Condominium has come into existence pursuant to a declaration made

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C.A.No.1118 of 2016

by  the  opposite  party  under  the  provisions  of  1972  Act.   When  the

appellant has filed complaint claiming certain reliefs before the NCDRC,

the  same  is  resisted  by  the  opposite  party,  by  taking  a  preliminary

objection that the complainant is not a ‘consumer’ within the meaning of

the  Act,  therefore,  has  no  locus  standi to  file  the  complaint.   The

NCDRC, by referring to relevant provisions of the Act, has recorded a

finding that the complainant is not a ‘recognised consumer association’

within the meaning of Section 12(1)(b) of the Act.  

3. We have heard Sri Rajesh Mahale, learned counsel appearing for

the appellant and Sri Basava Prabhu S. Patil,  learned senior counsel

appearing for the respondent-opposite parties.

4. Learned counsel appearing for the appellant has contended that

as  per  the  provisions  of  the  Act,  any  association  registered  under

Companies Act, 1956 or any other law for the time being in force can

maintain a complaint.  It is submitted that all members of the appellant-

Condominium are members who have purchased flats in the building

named as “Sobha Hibiscus” and it is formed with a view to represent the

grievances of  its members before the authorities and the tribunal,  as

such, there is no reason or justification in rejecting the complaint by the

NCDRC  on  the  ground  that  it  has  no  locus  standi to  maintain  the

complaint.  In support of his argument, learned counsel has relied on a

Full  Bench  judgment  of  the  NCDRC,  New  Delhi  in  Consumer  Case

No.560  of  2014  and  batch  titled  Moulivakkam  Trust  Heights  Flats

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C.A.No.1118 of 2016

Affected Buyers Association etc. v. M/s. Prime Sristi Housing Pvt. Ltd. &

29 Ors. etc.1  

5. On the other hand,  Sri  Basava Prabhu S. Patil,  learned senior

counsel  appearing  for  the  respondents,  by  taking  us  to  relevant

provisions  of  the  1972 Act  and Consumer  Protection  Act,  1986,  has

submitted that the appellant cannot be said to be a voluntary consumer

association,  as  per  the  provisions  of  the  Act  and  it  is  also  not  a

‘consumer’  within  the  meaning  of  the  Act.   Learned  counsel  further

submitted that the appellant is a body which has come into existence as

per the declaration made by the opposite party, as required under the

1972 Act.  It is submitted that as much as it is a body which has come

into existence as per the mandatory provisions of the 1972 Act, as such,

it cannot be said to be a voluntary consumer association.  Further it is

submitted that as the appellant will not fit into the definition of ‘consumer’

as defined under Section 2(1)(d) of the Act, complaint  as filed, is not

maintainable and there are no grounds to interfere with the impugned

order passed by the NCDRC as the same is in accordance with law.

6. Having heard learned counsels on both sides, we have perused

the  impugned  order  and  other  material  placed  on  record.   After

considering  the  submissions  made  by  the  learned  counsels  on  both

sides with reference to the provisions of the Consumer Protection Act,

1986 and the relevant provisions of the 1972 Act, we are of the view that

1  2017 SCC OnLine NCDRC 163 3

C.A.No.1118 of 2016

there is no merit  in  this  appeal  so as to interfere with the impugned

order, for the following reasons.

7. To  maintain  a  complaint  under  the  provisions  of  the  Act

complainant must be either a ‘consumer’ within the meaning of Section

2(1)(d) of the Act or it must fit into Section 12(1) of the Act.  The word

‘consumer’ is defined under Section 2(1)(d) of the Act which reads as

under :  

“2. Definitions.-(1) In this Act, unless the context otherwise requires,-

…. …. …. ….

(d) “consumer” means any person who,-

(i)  buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or  under  any  system  of  deferred  payment  and includes  any  user  of  such  goods  other  than  the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment,  when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires  or  avails  of  any  services  for  a  consideration which has been paid or promised or partly paid and partly  promised,  or  under  any  system  of  deferred payment  and  includes  any  beneficiary  of  such services other than the person who hires or avails of the  services  for  consideration  paid  or  promised,  or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation,-For  the  purposes  of  this  clause, “commercial  purpose”  does  not  include  use  by  a person  of  goods  bought  and  used  by  him  and services availed by him exclusively for the purposes of  earning  his  livelihood  by  means  of  self- employment;”

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C.A.No.1118 of 2016

8. Section 12 of the Act deals with the manner in which complaint

shall be made.  As per the Section 12(1)(a), a consumer to whom such

goods are sold or delivered or agreed to be sold or delivered or such

service provided or agreed to be provided can file a complaint.  Under

clause (b) of sub-section (1) of Section 12 of the Act any ‘recognised

consumer association’ whether the consumer to whom the goods sold or

delivered or agreed to be sold or delivered or service provided or agreed

to  be  provided  is  a  member  of  such  association  or  not  can  file  a

complaint.  As per the Explanation to Section 12 of the Act, ‘recognised

consumer  association’  means  any  voluntary  consumer  association

registered under the Companies Act, 1956 or any other law for the time

being in force.   It  is clear from the Explanation that only a voluntary

consumer association registered under the Companies Act, 1956 or any

other law can maintain a complaint under Section 12(1)(b) of the Act.

So  as  to  consider  whether  the  appellant  is  a  voluntary  consumer

association or not, it is necessary to refer to relevant provisions of the

1972 Act.  The Karnataka Apartment Ownership Act, 1972 is an Act of

the State which is enacted with a view to provide for the ownership of an

individual apartment in a building and to make such apartment heritable

and  transferable  property  and for  matters  connected  therewith.   The

appellant body has come into existence pursuant to a declaration made

by the opposite party in terms of the 1972 Act.  Section 3(j) of the 1972

Act defines ‘declaration’ as under:  

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C.A.No.1118 of 2016

“3.  Definitions.-In  this  Act,  unless  the  context  otherwise requires.-

…. …. ….

(j) ‘Declaration’ means the instrument by which the property is  submitted  to  the  provisions  of  this  Act,  as  hereinafter provided, and such Declaration as from time to time may be lawfully amended:”

As per Section 13 of the 1972 Act, Declarations, Deeds of Apartments

and copies of floor plans are required to be registered under provisions

of the Registration Act, 1908.  A copy of the Deed of Declaration dated

22.05.2006 is placed on record and the same is a declaration under

provisions of the said Act by the opposite party.  The name of appellant

body  as  “Sobha  Hibiscus  Condominium”  has  come  into  existence

pursuant to clause (8) of the Declaration.  The bye-laws framed by the

appellant-Condominium are also placed on record.  Bye-law No.5 of the

Bye-laws deals with the Members of Association which reads as under :  

“5) MEMBERS OF ASSOCIATION:

5.1) All  persons  who  have  purchased  constructed Apartments in the “Sobha Hibiscus” shall execute respective declarations under Section 5(ii) of the Karnataka Apartment Ownership  Act,  1972  submitting  their  Apartments  to  the provisions of the Act.  All persons who become the owner of the  Apartment,  shall  acquire  10  shares  of  the  “Sobha Hibiscus  Condominium”  by  paying  Rs.1000/-  and  on acquisition,  shall  become  the  members  of  the  “Sobha Hibiscus  Condominium”  and  be  bound  by  the  Deed  of Declaration and Exhibits thereto.”

9. On a conjoint  reading  of  the various relevant  provisions of  the

1972 Act and the Bye-laws of the Condominium referred above, we are

of the view that the appellant-body has come into existence as per the

mandatory provisions under the 1972 Act.  It is clear from the objects of 6

C.A.No.1118 of 2016

the  said  Act,  that  it  is  an  Act  to  provide  ownership  of  an  individual

apartment  in  a  building  and  to  make  such  apartment  heritable  and

transferable property.  In view of the mandatory provisions of the 1972

Act the appellant cannot be said to be a voluntary registered association

for  the  purpose  of  filing  a  complaint  before  the  competent  authority

under the provisions of the Act.  The Explanation to Section 12 of the

Act makes it clear that, the recognised consumer association as referred

under  Section  12(1)(b)  of  the  Act  means  any  voluntary  consumer

association registered under the Companies Act, 1956 or any other law

for  the  time  being  in  force.   By  applying  the  said  Explanation,  the

appellant cannot be said to be a voluntary consumer association so as

to  maintain  a  petition.   Further,  it  will  not  fall  within  the  definition  of

‘consumer’  as  defined  under  Section  2(1)(d)  of  the  Act.   The  term

‘voluntary’ has been defined in Black’s Law Dictionary IX Edn. as under :

“voluntary, (14c) 1. Done by design or intention voluntary act. 2.  Unconstrained  by  interference;  not  impelled  by  outside influence  voluntary  statement.  3.  Without  valuable consideration or legal obligation; gratuitous voluntary gift. 4. Having  merely  nominal  consideration  voluntary  deed. Voluntariness”.

The term ‘voluntary’ as defined in Oxford Dictionary reads as under :

“2.  Of  an  action:  performed  or  done  of  one’s  own  will, impulse, or choice; not constrained, promoted, or suggested by another.  Also more widely, left to choice, not required or imposed, optional.  Of an oath, a confession, etc: voluntarily made or  given;  not  imposed or  prompted by a promise or threat.   Of  a conveyance,  a disposition etc.:  made without money  or  other  consideration  being  given  or  promised  in return.   Growing  wild  or  naturally;  or  spontaneous  growth. Volunteer

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C.A.No.1118 of 2016

3. …. …. 4.a.  Assumed or  adopted by free choice;  freely  chosen or undertaken; (of work) unpaid b. Brought about by one’s own choice or deliberate action; self-inflicted, self-induced. C. Of a society,  association,  etc.:  entered into a free choice.   Also consisting of volunteers. 5. Done by deliberate intent; designed, intentional 6. Of the will: free, unforced, unconstrained. 7.  Of  a  person:  acting  from  personal  choice  or  impulse, willingly,  or  spontaneously,  in  a  specified  capacity.   Also, endowed with the faculty of willing. B. Serving as a volunteer soldier.  Also, composed of such volunteers. 8.  Freely  or  spontaneously bestowed or  made;  contributed from  personal  choice  or  impulse  or  from  generous  or charitable motives. 9. …. …. 10.  Of  an  institution,  organisation,  etc.:  maintained  or supported solely or largely by voluntary contributions.  Also more  widely,  existing  through  voluntary  support,  not established  by  statute;  in  the  UK,  (of  a  school)  built  by  a voluntary  institution  but  maintained  by  a  local  education authority.  B.  of,  pertaining to,  or  advocating  voluntarism in respect of Church, schools, etc.”..

In essence, a voluntary consumer association will be a body formed by a

group  of  persons  coming together,  of  their  own will  and  without  any

pressure or influence from anyone and without being mandated by any

other  provisions  of  law.   The appellant  association which consists  of

members of  flat owners in a building,  which has come into existence

pursuant  to  a  declaration  which is  required  to  be made compulsorily

under  the  provisions  of  1972  Act,  cannot  be  said  to  be  a  voluntary

association to maintain a complaint under the provisions of the Act.

10. The learned counsel appearing for the respondents also relied on

the very same judgment in the case of Moulivakkam Trust Heights Flats

Affected  Buyers  Association  etc.1  In  the  aforesaid  decision,  a  Full

Bench  of  the  National  Commission  has  taken  a  view  that  even  a

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C.A.No.1118 of 2016

Residents’ Welfare Association, if registered under a statute will qualify

as a consumer association under the provisions of Section 12 of the Act

provided, it qualifies as a voluntary association.

11. For the aforesaid reasons and in view of the reasons recorded in

the impugned order by the NCDRC, we do not find any merit  in this

appeal so as to interfere with the same.  The civil appeal is accordingly

dismissed with no order as to costs.

………….…………………………………J. [MOHAN M. SHANTANAGOUDAR]

….…………………………………………J. [R. SUBHASH REDDY]

New Delhi. February 14, 2020.

9

C.A.Nos.9961-9962 of 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.9961-9962 OF 2017

Subhechha Welfare Society    …..Appellant Versus

M/s. Earth Infrastructure Pvt. Ltd. …..Respondent

W I T H  

CIVIL APPEAL NOS. 9959-9960 of 2017

Subhechha Welfare Society    …..Appellant Versus

M/s. Earth Infrastructure Pvt. Ltd. …..Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. These  civil  appeals  are  filed  by  the  complainant  in  Consumer

Complaint  Nos.1196 and 1197 of 2016, aggrieved by the order dated

06.12.2016 and the order dated 05.01.2017 in R.A.Nos.312 and 313 of

2016  passed  by  the  National  Consumer  Disputes  Redressal

Commission (for short, ‘NCDRC’), New Delhi.

2. The  appellant-complainant  is  a  registered  Welfare  Society.

Consumer  Complaint  No.1196  of  2016  has  been  filed  by  the

complainant on behalf of 8 allottees and Consumer Complaint No.1197

of 2016 has been filed by the complainant on behalf of 12 allottees with

the  allegations  that  buyers  booked  units  with  the  opposite  party  on

different dates and inspite of making major payment, possession has not

been delivered to them.  In the aforesaid complaint directions are sought

1

C.A.Nos.9961-9962 of 2017

against  the  opposite  party  to  hand  over  possession  of  units  in  all

respects or in the alternative to provide other flat of identical size or to

refund the amount deposited along with interest and compensation.  

3. It is the case of the appellant that the complainant being a society

registered  under  Haryana  Registration  and  Regulation  Act  has  filed

complaint on behalf of allottees, under Section 12(1)(b) of the Consumer

Protection Act, 1986 (for short, ‘the Act’).   

4. Both  the  complaints  filed  by  the  appellant-complainant  are

dismissed vide impugned order dated 06.12.2016 on the ground that

recognised consumer association can file complaint on behalf of single

consumer only, but cannot file complaint on behalf of several consumers

in one complaint.  Review applications preferred against the dismissal of

the complaints have also been dismissed vide order dated 05.01.2017

which order is also under challenge.

5. We have heard Sri Ashwani Kumar, learned counsel appearing for

the appellant.  Inspite of service of notice, there is no appearance on

behalf of the respondent.

6. Learned counsel appearing for the appellant has submitted that

the reasoning assigned by the NCDRC for dismissing the complaints as

not maintainable, is erroneous as much as there is no restriction on the

voluntary  registered  association  to  file  complaint  on  behalf  of  single

consumer only.  It  is submitted that the restriction as recorded in the

impugned  order  will  defeat  the  very  purpose  of  registering  an

association.  Learned counsel has also brought to our notice an order of

2

C.A.Nos.9961-9962 of 2017

the  NCDRC  in  Consumer  Complaint  No.816  of  2016  wherein  the

Tribunal has recorded a finding that, Section 12(1)(b) of the Act does not

preclude the recognised consumer association from filing a composite

complaint  on  behalf  of  more  than  one  consumers,  having  a  similar

grievance against the seller of the goods or the provider of services, as

the case may be.  Further, it is submitted that the said order is affirmed

by  this  Court  as  the Civil  Appeal  Nos.10882  of  2016  etc.  titled  M/s.

Amrapali  Sapphire Developer Pvt. Ltd. v. M/s. Amrapali Sapphire Flat

Buyers Welfare Association preferred against the orders passed by the

NCDRC are dismissed by order dated 21.02.2017.

7. Having considered the submissions made by the learned counsel

for  the  appellant  and  on  perusal  of  the  impugned  order  and  other

material  placed on record,  we are of  the view that  the finding of  the

NCDRC that  recognised  consumer  association  can  file  complaint  on

behalf  of  a  single  consumer,  but  cannot  file  complaint  on  behalf  of

several consumers in one complaint, is erroneous and there is no legal

basis for that.  From a reading of Section 12(1)(b) of the Act read with

Explanation to Section 12 it is clear that voluntary registered association

can  file  a  complaint  on  behalf  of  its  members  to  espouse  their

grievances.  There is nothing in the aforesaid provision of the Act which

would restrict its application to the complaint pertaining to an individual

complainant.   If  a  recognised  consumer  association  is  made  to  file

multiple  complaints  in  respect  of  several  consumers  having  a similar

cause of action, that would defeat the very purpose of registration of a

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C.A.Nos.9961-9962 of 2017

society  or  association  and  it  would  result  only  in  multiplicity  of

proceedings without serving any useful purpose.   

8. We  are  in  agreement  with  the  view  taken  by  the  NCDRC  in

interpreting the provisions of Section 12(1)(b) of the Act in order dated

30th August 2016 in Consumer Complaint No.816 of 2016 passed in the

case  of  Amrapali  Sapphire  Flat  Buyers  Welfare  Association  etc.  v.

Amrapali Sapphire Developers Pvt. Ltd. etc. which is also affirmed by

this Court by virtue of dismissal of Civil Appeal Nos.10882 of 2016 etc.

vide order dated 21.02.2017.

9. For the aforesaid reasons, these civil appeals are allowed and the

impugned  common  order  dated  06.12.2016  passed  in  Consumer

Complaint No.1196 and 1197 of 2016 and the orders dated 05.01.2017

passed in R.A. Nos.312 and 313 of 2016 are set aside.  The matter is

remitted  back  to  the  National  Consumer  Disputes  Redressal

Commission, New Delhi with a direction to consider the complaints on

merits  and  pass  appropriate  orders.   It  is  made  clear  that  the

observations made in this order are only for the purpose of disposal of

these  appeals  which  are  directed  against  the  order  of  the  NCDRC

dismissing the complaints in limine on the ground of maintainability.  It is

open  for  the  Commission  to  consider  the  grievance(s)  raised  in  the

complaints on its own merits.  

………….…………………………………J. [MOHAN M. SHANTANAGOUDAR]

New Delhi. ….…………………………………………J. 4

C.A.Nos.9961-9962 of 2017

February 14, 2020 [R. SUBHASH REDDY]

5

C.A.No.9963 of 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9963 OF 2017

Monu Kumar & Ors.    …..Appellants Versus

M/s. Metromax Infrastructure Pvt. Ltd. …..Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. This civil appeal is filed, by the complainant(s) in Consumer Case

No.1361 of 2015 filed before the National Consumer Disputes Redressal

Commission  (for  short,  ‘NCDRC’),  aggrieved  by  the  order  dated

09.01.2017.

2. The aforesaid complaint is filed by the appellant Monu Kumar and

32 others.  In the joint complaint, it is alleged that there is deficiency of

service  on  the  part  of  the  respondent-opposite  party  in  respect  of

Buyer’s agreement executed between the respective complainants and

the opposite party.  As the complaint was filed under Section 12(1)(c) of

the Consumer Protection Act, 1986 (for short, ‘the Act’), by number of

consumers having the same interest,  they sought permission to file a

joint  complaint  by  filing  separate  application.   In  the  application  for

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C.A.No.9963 of 2017

permission to file joint complaint in Consumer Case No.1361 of 2015,

the following order was passed on 27.11.2015 :  

“Dated 27 Nov 2015

ORDER

Learned counsel  for the complainants present.   Arguments heard.

The case stands admitted.

Notice be  issued to  opposite  party  returnable  on  2.8.2016 with  the  direction  to  the  opposite  party  to  file  the  written version within 30 days from the date of receipt of notice as per Section 13 of the Consumer Protection Act, 1986.  Time of 15 days can be extended by filing an application by the opposite party.  In case, the written version is not filed within the aforesaid period, the right of the opposite party to file the written version shall stand forfeited.

…………………J J.M. MALIK

 PRESIDING MEMBER

…………………J     DR. S.M. KANTIKAR

           MEMBER”

Having admitted the Consumer Case and issued notice, the impugned

order is passed rejecting the application for grant of permission to file

joint  complaint  under  Section  12(1)(c)  of  the  Act  and  consequently

rejecting the complaint filed.  

3. We  have  heard  learned  counsels  on  both  sides,  perused  the

impugned order and other material on record.  As much as complaint

was filed on behalf of number of individual consumers, an application

was filed seeking permission to file joint complaint and after hearing the

arguments of the learned counsel, case was admitted and notice was

issued.  Though expressly it is not stated that permission is granted in 2

C.A.No.9963 of 2017

the application seeking permission to file joint complaint, but in view of

the fact that admission of the complaint is recorded in the order dated

27.11.2015  and  notice  was  issued  the  permission  is  to  be  read  as

inherent in the order of admission.  When the specific application was

moved seeking permission for filing joint application and having passed

order  of  admission  by  issuing  notice  on  such  application,  the

Commission ought not to have rejected the application by the impugned

order.  The grant of permission is to be read inherently into the order

dated 27.11.2015.

4. For the aforesaid reasons, the impugned order is set aside, matter

is  remitted  back  to  the  National  Consumer  Disputes  Redressal

Commission, New Delhi with a direction to consider the matter afresh

and dispose of the complaint case on its own merits.  The civil appeal is

accordingly allowed with a direction as indicated above.

………….…………………………………J. [MOHAN M. SHANTANAGOUDAR]

….…………………………………………J. [R. SUBHASH REDDY]

New Delhi. February 14, 2020.

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