KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.20/2023

ORDER DATED: 10.04.2023

(Against the Order in I.A.No.397/2022 in C.C.No.239/2022 of DCDRC, Alappuzha)

PRESENT:

REVISION PETITIONER/OPPOSITE PARTY:

(by Adv. Rajaprathap S. J.)

Vs.

RESPONDENT/COMPLAINANT:

O R D E R

HON’BLE JUSTICE K. SURENDRA MOHAN: PRESIDENT

          The petitioner in I.A.No.397/2022 of the Consumer Disputes Redressal Commission, Alappuzha (hereinafter referred to as the District Commission for short) is in revision, challenging an order dated 26.11.2022 dismissing the petition.  The Revision Petitioner is the opposite party in C.C.No.239/2022.  The respondent herein is the complainant.  I.A.No.397/2022 was filed by the Revision Petitioner questioning the maintainability of the complaint.  The said petition has been dismissed by the District Commission holding that the complaint was maintainable.

          2.       According to the Revision Petitioner, he has filed a detailed version in the complaint.  His contention is that the dispute between him and the respondent is a purely commercial dispute.  In view of the Commercial Courts Act, 2015 only a Commercial Court can consider the issues raised in the complaint.  A separate remedy has been provided under the said Act for resolving the commercial disputes.  The Revision Petitioner is engaged in the construction of buildings.  The dispute arises out of an agreement relating to the construction of a building.  Therefore he has already filed C.S.No.224/2022 before the Commercial Court, Alappuzha and the matter is pending there.  The dispute and the issues raised in the complaint are being considered by the Commercial Court.  The case before the Commercial Court was filed earlier and the petitioner has sought for the recovery of money from the complainant herein.  The complainant had received notice in the said case and has thereafter filed this case as an afterthought, in order to defeat/delay the claims made by the petitioner. 

          3.       It is further contended that all the issues can be comprehensively considered by the Commercial Court.  Both parties will get ample opportunities to put forward their contentions.  If the complainant wants to contest the commercial suit and make any claim he could have either filed a separate commercial suit before the Commercial Court or preferred a counter claim.

          4.       The proceedings before a Consumer Court are summary in nature whereas a more comprehensive consideration would be available before the Commercial Court.  If the present complaint is entertained by the District Commission there are chances of conflicting decisions being rendered.  Adopting the principle of Section 10 CPC, the suit filed in later point of time has to be stayed, awaiting final decision of the first suit.  It is therefore contended that even if the complaint was found to be maintainable, the same was necessary to have been stayed. 

          5.       The respondent filed objections to the petition contending that it was filed without any bonafides to escape from his liability.  The Revision Petitioner had no right to file a commercial suit.  The respondent is a consumer of the Revision Petitioner.  There was deficiency in service on the part of the Revision Petitioner and the respondent suffered a loss of Rs.40,00,000/-(Rupees Forty Lakhs).  That is the reason why the complaint was filed.  There is no bar in filing the complaint.

          6.       According to the respondent, it was he who first issued caveat notice.  After receiving the said notice, the suit before the Commercial Court was filed by the Revision Petitioner in a hurry.  It is the exclusive right of the respondent to choose the Forum and the Revision Petitioner cannot dictate where he should file his complaint.  Since what the respondent has filed is a complaint, Section 10 CPC is not attracted.  The nature of a commercial suit and consumer complaint are different and there is no likelihood of any conflicting decisions.  Section 10 is applicable to only different suits and therefore there are no grounds to stay the consumer complaint.  He therefore sought for dismissal of the petition.

          7.       The District Commission considered the contentions of the respective parties and by an elaborate order has found that the consumer complaint was maintainable.  It has also been held that Section 10 CPC applies only between two suits.  In the present case, one is a consumer complaint and therefore Section 10 has no application.

          8.       This revision has come up before us for admission.  We have heard the counsel for the Revision Petitioner at length.   According to the counsel for the Revision Petitioner, the Commercial Courts Act is a special legislation enacted for the purpose of settlement of commercial disputes expeditiously.  Since the Revision Petitioner had filed a suit before the Commercial Court earlier in point of time, the subsequent institution of the consumer complaint is not in order.  Section 6 of the Commercial Courts Act confers exclusive jurisdiction on Commercial Courts to decide all commercial disputes.  Therefore, the jurisdiction of the Consumer Courts is barred by the provisions of the said Act.  Even if the consumer complaint is held to be maintainable, the same would have to be stayed, applying the principle in Section 10 CPC.  On the above grounds, the counsel sought interference with the order under revision.

          9.       Heard.  We have considered the contentions advanced before us anxiously.  It is no doubt true that, the Revision Petitioner has filed a suit before the Commercial Court, Alappuzha as C.S.No.224/22.  The dispute relates to the construction work of a building which the Revision Petitioner had undertaken on the basis of an oral agreement.  The Revision Petitioner had agreed to construct a building having an area of 2000sq.ft. @Rs.1,350/sq.ft.  An amount of Rs.30,00,000/-(Rupees Thirty Lakhs) was received by the Revision Petitioner for constructing the building.  Since there was delay in completion of the building, the same was inspected by the respondent.  It was then found that the construction was effected violating the agreement.  The construction done was only for a value of 18,00,000/-(Rupees Eighteen Lakhs).  Therefore, according to the respondent the same would have to be demolished.  In the above circumstances, the complainant sought to recover the entire amount paid by him, a further amount of Rs.2,00,000/-(Rupees Two Lakhs) for demolishing the construction and Rs.10,00,000/-(Rupees Ten Lakhs) as compensation.  According to the Revision Petitioner amounts are due to him and he has filed a suit before the Commercial Court for the recovery of amounts from the respondents herein.

          10.     In the above factual scenario, it cannot be disputed that the respondent is a consumer and that the Revision Petitioner is a service provider.  The allegations in the consumer complaint are to the effect that there are deficiencies in the service of the Revision Petitioner.  Therefore, the respondent has the right to file the consumer complaint as done in this case.  In view of Section 100 of the Consumer Protection Act, 2019 (hereinafter referred to as the Act for short) the District Commission has held that the remedy before a Consumer Court is in addition to and not in derogation, of the provisions of any other law for the time being in force.  Reliance is also been placed on the decision of the Apex Court reported in AIR 2021 SC 70.  The legal position therefore is that, the respondent has the option to approach a Consumer Court with his complaint or to choose some other remedy for the redressal of his grievances.  He has admittedly chosen to file a consumer complaint, which cannot be found fault with.  It is not within the rights of the Revision Petitioner to insist that the remedy of the respondent has to be limited to filing a counter claim in the suit pending before the Commercial Court.  The District Commission has rightly rejected the said contention of the Revision Petitioner.

          11.     The further contention that the consumer complaint should be stayed applying the principle in Section 10 CPC also has no substance since the said provision would apply only between two suits.  In this case, since one of the proceedings is a consumer complaint, the said provision has no application.  The said contention has thus been rightly rejected by the District Commission. 

          12.     In view of the above, we find no grounds to admit this Revision Petition or to grant any of the reliefs sought for.

          This revision fails and is accordingly dismissed.  No costs.

SL