JUDGMENT

            The complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service in not settling/paid the rent for the period of 9 months.  Hence prays for relief to pay the rent of 9 months to the tone of Rs.22,500/- along with compensation of Rs.2,50,000/- for the repair of the building and Rs.1,00,000/- for deficiency in service and Rs.50,000/- for physical and mental agony and Rs.10,000/- for the litigation and miscellaneous expenses.

             2. Brief averments of the Complaint are as under;

            That the OP had opened a branch office in the building of the complainant who is the owner of that premises.  The OP had entered into an agreement for the period of 1-10-2009 till 30-09-2014.  The OP did not pay the rent to the tone of Rs.22,500/- from 01-01-2014 to 30-09-2014 for the period of 8 months.  The complainant further alleged that the OP has damaged the building, the windows, flooring and wiring, due to this damages the building cannot be given for rent to the other people.  The complainant further alleged that at the time of the giving rent to the OP the building was in a good condition and now the building is in worst condition.

            The complainant further alleged that he has issued a legal notice through his counsel to the OP office on 19-03-2015 and the said notice is served on him.  Even after the service of notice, reply is not given by OP to the complainant.  Hence has filed this complaint and prays for Rs.22,500/- the rent from the period 01-1-2014 to 30-09-2014 for the period of 9 months along with Rs.2,50,000/- for the damages to the building and Rs.1,00,000/- for deficiency in service and Rs.50,000/- for physical and mental agony and Rs.10,000/- for litigation and other expenses as prayed above.

            3.  This Forum after admitting the complaint, notice was issued to the opponent and the notice was served upon the opponent.  The opponent appeared before the Forum along with their counsel and filed vakalt and written version to the main petition.

            4.  The Objections of the opponent are as under;

The OP submitted that the contents of the para 2 of the complaint made by the complainant is partly admitted to the extent that the opponent had taken the building of the complainant on rental basis for his branch office.  As per the agreement made between the parties for a monthly rent of Rs.2,500/- and other contents of the para are totally denied by this opponent and the complainant is strict proof the same.

The OP further submitted that, complainant was the owner of the building which has been occupied by the opponent party to their branch office and both had entered an agreement as per document No.2 filed by the complainant alongwith his complaint.  That, documents itself is sufficient to dismiss the complaint.  The complaint is not maintainable as per the condition No.17 of the agreement is “provided always it is hereby expressly agreed that if at any time their shall arise any dispute, doubt, difference or question with regard to the interpretation are in respect fo right, duties and liabilities of the parties hereto or in any away touching or arising out of these presents are otherwise in relation to premises then every such dispute, difference, doubt or question (except the decision whereof is herein expressly provided for) shall be referred to the sole arbitration of the member service, department of telecommunications Bharat Sanchar Nigam Limited or in case his designation in changed or his office is abolished the officer who for the time being is entrusted whether or not in addition to other functions with the functions of telecommunications, bharat sanchar nigama limited by what ever designation such officer may be called or if he be unable or unwilling to act, than of officer appointed by him in this behalf, it will be no objection to any such appointment that the person appointed is government servant, that he has to deal with the matters to which the indenture of lease the members service, department of relates and that in the course of his duties as such government servant has expressed views on all or any of the matters in dispute or differences, the decision of the arbitration shall be final and binding on the parties to this deal.  The provision fo the Indian Arbitration Act, 1940.  On any statutory modifications or reenactment thereof and rules made there under for the time being in force shall apply to such arbitration and this deed shall be deemed to be submission to arbitration within the meaning of the said act”. As per this condition the complainant cannot have any right to file complaint before this forum under the C.P.Act which is not at all permissible under law.  It is only a harassment, miss leading complaint before this forum which cannot be entertained even at the time of admission itself on this conditions of the agreement the complaint may be dismissed.

The OP further submitted that, the opponent party had vacated the premises which had been given by the complainant on the rental basis to the office of opponent office on 31-12-2013 itself and handed over the possession of the building to the complainant, as the building possession was intact when the opponent party entered the building at the beginning.  Now the complainant only to file this false complaint against the opponent party after handing over the possession of the building i.e. after lapse of one year three months.  Intentionally issued a notice to the opponent through their advocate, even though after receipt of the notice the question of giving reply to that notice does not arises since because the complainant building had been vacated on
31-12-2013 and also till that date rent also paid to the complainant.  This fact has been suppressed by the complainant while filing this complaint before this Forum.  This attitude of the complaint should be seriously considered.  There is no relationship between the complainant and opponent party as a consumer but there relationship is owner and tenant.  Hence, the complaint filed under section 12 of the C. P. Act is not sustainable.  Kindly dismiss the complaint as not maintainable.   The allegation made by the complaint regard damages regarding a building is false.  Because at the time of handing over possession of the building, all the repairs have been done by the opponent party and handed over the possession.  Hence, the contention taken by the complainant in their complaint is completely denied by this opponent party.  And it is burden upon the complainant to prove this facts.

The OP further submitted that, the contents no.4 of the complaint are totally denied since the matter is not comes under the perview of C.P.Act and this before this forum.  Hence, the opponent party denied the facts in toto. 

The OP further submitted that, the relationship of complainant and opponent party are land lord and tenant not as a consumer.  Hence, the question of deficiency in service of the opponent party does not arise because it is not an service.

And hence prays for the dismissal of the complaint along with compensatory cost of Rs.20,000/-. 

            5.  On the basis of the above pleading, the following points have been framed;

POINTS

1.  Whether the complainant proves that the complainant is a consumer and further proves that the complaint filed is maintainable?
2. Whether the complainant proves that there is deficiency in service on the part of OP?
3. Whether the complainant is entitled for the relief sought for?

4. What order?

6.  To prove the case of the complainant, the complainant himself examined as PW1 and has got marked documents as per Ex.A.1 to Ex.A.5 and closed their side of evidence.  The respondent examined as RW1 and got marked documents as per Ex.B.1 to Ex.B.3 and closed their side evidence.

7.  Heard the counsel for complainant and OP and perused the records.

8.  Our findings on the above points are as under;

Point No. 1 :   In Negative

Point No. 2 :   In Negative

                  Point No. 3 :  In Negative

                 Point No.  4 : As per final Order for the following

REASONS

9.  POINT No. 1,2 and 3:  As these points are inter connected each other.  Hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

            10.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is no dispute that the complainant and the OP have entered into a agreement for the rent of the building of the complainant.  It is also admitted by the OP that he had taken the building of the complainant on rental basis for his branch office and as per the agreement made between the parties for a monthly rent of Rs.2,500/-.  To prove the case of the complainant, the PW1 has reiterated the plaint averments in his examination in chief and in support of his case he has produced the documents pertaining to the official letter and lease agreement, which are marked as Ex.A.1 and Ex.A.2.  Further, during the course of argument advanced by counsel for the respondents, they have much argued that the present complaint is not maintainable in view of the relationship between the complainant and OP as a ‘Consumer’, but there existing relationship was of owner and tenant.  As per the defence taken by the respondent in their written version contending that the present complaint is not maintainable on this ground only.

Section 2(1)(d) of the Consumer Protection Act – 1986 defines ‘Consumer’ means;  

1. 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

2. [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;]

In absence of the relationship of a consumer, the complainant cannot be said to be a consumer so as to maintain a claim for recovery of rent and compensation against the tenant for the damages of the building.  For this, there is a separate Act called – ‘Karnataka Rent Act’, where such provisions is well versed in it.  If at all any disputes arises between the landlord and tenant, it must be filed before the proper competent civil court and get the reliefs but not before the Consumer Forum.  The relationship of the complainant and OP is landlord and tenant.

The respondent counsel has relied the citation reported in CPJ 1992 (1) 256, the Hon’ble Karnataka State Consumer Disputes Redressal Commission has held that;

“2. Some of the defects pointed out by the complainant were rectified by the respondent.  The respondent has filed a Memo stating that Muddenahalli being a drought prone area and due to failure of monsoon during the previous year, water supply cannot be arranged.  That apart, this is a sale of immovable property under higher purchase agreement between the complainant and the respondent.  The conditions are laid down in the letter of the allotment produced by the complainant himself.  If at all there is any breach of conditions of said agreement, he could approach the Civil Court for remedy.  So far this Commission is concerned, his complaint can be entertained only if the complainant is a consumer.  From the facts stated above, it is clear that the complainant has neither purchased of goods nor hired services for consideration.  Hence, complainant will not be a consumer falling within Section 2(1)(d) of the Consumer Protection Act, 1986.  If that is so, the complaint cannot be entertained by this Commission.”

And also he has relied another citation reported in [1996] 1 CPR 37 –

“Consumer Protection Act, 1986 Sections 2 & 14 – Complaint regarding failure on part of Municipal Corporation to Jay roads, gutters and supply of water – Complainant supped on road and sustained fracture – Claim for compensation – Development charges collected from residents by Corporation amount to tax – Corporation in maintaining system of water supply & roads to residents of a locality does it, only in discharge of its statutory duty – Complainant cannot be classified as a consumer – Order of Dist. Forum awarding compensation is liable to be set aside.”

And also he has relied another citation reported in [1993] 1 CPR 368; it is held that;

“Held: A perusal of Sec. 2(1)(d)(ii) of the Act shows that the services should have been hired by him, The complainant even if he is consumer of the opposite parties and pays water charges for the consumption then in that respect he can only be said to have hired the service.  The grievance about the leakage of water raised by the complainant, which according to the complainant has resulted in the damage of the house, he cannot said to be a consumer as defined in the Act.  At the most it a tortious action, The facts as stated, if taken to be correct merely show negligence as contemplated under the Law of Torts, Negligence under the Law of Torts means (1) duty to take care (2) breach of duty and (3) consequential damage.

On going through the pleadings of the instant complaint and written version, it is well versed that the complainant and OP does not have the relationship of the consumer and service and regarding the recovery of rent and damage, it is not covered under the Consumer Protection Act.  When the complainant himself is not a consumer, the deficiency in service on OP does not arise and the reliefs cannot be claimed under the purview of the Consumer Protection Act.  Therefore, the contention which has been taken by the complainant is not justifiable one.

The complainant counsel has relied the citation reported in III (2015) CPJ 33 NC –

1. Consumer Protection Act, 1986 – Sections 2(1)(a), 2(1)(b), 21(a)(i) – Complaint – Maintainability – Private service provider performing Government functions – CPWD was deficient in rendering services by declaring subject premises fit for occupation without ensuring that fuse cut out installed at the meter board within the garage was having a naked fuse wire without the fuse grip – Complaint maintainable.”

We have gone through the same, the rulings laid down the position of law, but they are not applicable to the facts of the case.

The counsel for the complainant has also relied upon another citations;

1. II (2012) CPJ 109 – Chattisgarh State Consumer Disputes Redressal Commission, Raipur – Lakhvinder Singh Bharma V/s Cholamandalam MS General Insurance Co.Ltd., & Anr., wherein it is held thus;

“(iv) Consumer Protection Act, 1986 – Sections 3, 17(1)(a)(i) – Jurisdiction – Complaint – Maintainability – Non-disclosure of correct facts alleged – Contention, dispute between parties is not a consumer dispute as arbitration clause exists – Not accepted – Even if there is some mention of settlement through arbitration anywhere, then also, in view of provision of Section 3 of Act it nowhere creates any bar in maintaining present complaint, regarding claim for any damage to insured machine, under insurance policy, as the remedies provided under Act, 1986 are in addition to and not in derogation with provisions of any other Act – Dispute has not been referred to any arbitrator – There should not be any impediment in entertaining complaint – Complaint maintainable.”

2. III (2010) CPJ 384 (NC) – National Consumer Disputes Redressal Commission, New Delhi – Magma Fincorp Limited (Formerly Magma Leasing Finance Ltd.,)

We have gone through the same, the rulings laid down the position of law, it is clearly mentioned that regarding claim for any damage to insured machine under insurance policy.  But in this case the claim is made with regarding to rent and damage of the building is made and the relationship between them is a landlord and tenant but not a consumer.  Hence they are not applicable to the facts of the case.

As discussed supra and observation made, it is made clear that there is no relationship of the consumer and service provider in between the complainant and the respondent and the complainant is not a consumer.  Hence, in the light of observations, the complainant is not entitled for any compensatory cost as prayed for.  Accordingly we constrained to hold point No. 1, 2 and 3 in the Negative.

11.  POINT No. 4:- Hence, in the result, we proceed to pass the following;

ORDER

1. The complaint is dismissed.
2. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 8^th day of February 2016.                 

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.