KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 183/2016

JUDGMENT DATED: 25.05.2023

(Against the Order in C.C. 233/2012 of CDRC, Thiruvananthapuram)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

M. Synudeen, S/o Muhamadaly, T.C. 15/205, Anjamadamuri, Vellayambalam, Thiruvananthapuram.

  (By Advs. M.S. Preetha Rani  & Narayan R.)

                                                Vs.

RESPONDENT:

Bilal K.R., S/o K. Krishnan, Parvathi, KPRA-183, Lekshmi Nagar, Marappalam, Pattom, Thiruvananthapuram.

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is an appeal filed by the opposite party in C.C. No. 233 of 2012 before the District consumer Redressal Commission, Thiruvananthapuram (referred as District Commission in short).  The District Commission had allowed the complaint as per the order dated 20.07.2015 and directed the opposite party to pay the complainant a sum of Rs. 1,00,000/- along with interest at the rate of 9% , compensation of Rs.  10,000/- and costs of Rs. 2500/- within a month from the date of receipt of the order with a default clause to pay the interest at the rate of 12%.    Impugned by the above order the appeal has been filed.

          2.  The version contained in the complaint is that on 10.09.2011 the opposite party had promised to sell a residential building bearing No.VP.11/1264 comprised in RS No.38/18-1 situated in Vilavoorkal Village to the complainant and made him believe that the land value in that locality is Rs. 3 Lakhs per cent.  Believing the version of the opposite party on 29.11.2011 the complainant had entered into a karar with the opposite party and paid a sum of Rs. 1,00,000/- as advance which was agreed to be returned on revocation of the agreement.  The complainant had to avail loan from a bank and for that purpose the document pertaining to the property was needed.  On verification of the title deed the complainant could notice that certain mistakes had crept in the deed.  He was assured by the opposite party that a correction deed could be executed but he never caused execution of a correction deed.  He had also concealed the actual state of affairs from the complainant.  On 20.12.2011 and 29.12.2011 the complainant had approached the opposite party and expressed his readiness to buy the property but later he came to know that the opposite party had already sold the property in November 2011.  So the complainant had sought for refund of the advance amount but the opposite party never returned the advance amount. There is unfair trade practice and deficiency in service on the side of the opposite party and the complainant would seek for an order directing the opposite party to repay the advance amount along with interest and compensation.

3. Though the opposite party received the notice issued by the District Commission he did not appear before the District Commission.  So he was set ex-parte and an order was passed on 16.08.2013.  The opposite party had filed an appeal before the State Commission and got the ex-parte order set aside after depositing Rs. 1,30,000/- before the State Commission. The matter was remanded to the District Commission with a direction to dispose of the matter within 2 months from the date of receipt of the copy of the judgment in appeal.  Thereafter both parties appeared before the District Commission but the opposite party did not file any version before the District Commission though sufficient opportunity was given.  When the matter was posted for arguments the opposite party had filed an application to reopen the evidence along with version.  He had also filed an application that the complaint is not maintainable.  Both the applications were dismissed and the final order was passed.

4. An appeal was again filed by the opposite party before the State Commission.  The lawyer appearing for the complainant relinquished the vakalath.  Notice was served on the complainant but he remained absent and he was set ex-parte.

5.  Heard the counsel for the appellant.  We have perused the records received from the District Commission.     

6.  The contention raised by the appellant is that the complaint is not maintainable under the Consumer Protection Act since the transaction involved in the case is the failure to return the advance amount obtained in respect of the proposed sale of a building and the option available for the complainant is to file a suit before the Civil Court.  In the second paragraph of the Complaint the transaction is clearly narrated.  The opposite party had promised to sell a residential building for a total sum of Rs.15 Lakhs.  Ext. P1 is the copy of the agreement executed by the parties which would show that the building situated in the first floor was agreed to be sold.  The subject matter of the karar is the proposed sale of a fully constructed building.  It does not involve any sort of service.  The District Commission has failed to appreciate the evidence adduced by the complainant in its correct perspective.  Failure to comply with the stipulations in an agreement for sale does not make out a cause of action under the provisions of the Consumer Protection Act.

7. We have carefully perused the records received from the District Commission and the appeal memorandum. On a consideration of the pleadings contained in the complaint and the exhibits marked on the side of the complainant it could be seen that this is a case of failure to perform a contract for sale after receiving advance amount.  Adjudication of such a dispute is within the exclusive jurisdiction of the civil court.  There are no materials on record to prove that any unfair trade practice is involved.  No sort of service is also involved so as to confer jurisdiction for the Consumer Redressal Commission.  So the complaint is liable to be dismissed.  However we may observe that dismissal of the complaint does not affect the right of the complainant in seeking a relief from an appropriate civil court.

          8.  Having due regard to the aforesaid facts and circumstances the appeal is allowed.  The order of the District Commission is set aside.  The complaint is dismissed.  Parties shall bear their respective costs.

AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                        BEENA KUMARY. A         : MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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