Kerala

Idukki

CC/128/2021

Biju Mathew - Complainant(s)

Versus

K S R T C - Opp.Party(s)

Adv: Prince J Pananal

22 Mar 2023

ORDER

DATE OF FILING : 16.9.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   22^nd  day of March, 2023

Present :

                   SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.128/2021

     Between

Complainant                                       :         Biju Mathew, S/o/ Mathew,

                                                                   Mukkadamcheriyil House,

                                                                   Thodupuzha P.O.,

                                                                   Idukki -  685584.

(By Advs: Prince J. Pananal

&Shijomon Joseph)

        And

Opposite Party                                    :        Kerala State Road Transport Corporation,

                                                                   Represented by its Chairman

                                                                             And Managing Director,

                                                                   Transport Bhavan,Fort P.O.,

                                                                   Thiruvananthapuram – 695 023.

(By Adv: Sathesh Mathew Zacharias)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1.  This case originates from a complaint filed under Section 35 of the Consumer Protection Act of 2019 (the Act, for short).  Case of complainant is briefly narrated hereunder :

 

          Opposite party is Kerala State Road Transport Corporation represented by its Managing Director.  Complainant had taken part in the auction conducted on 8.8.2018 for letting out rooms in a shopping complex to be  constructed by opposite party, in Thodupuzha.  He had auctioned room No.G1-08 in the said complex.  Complainant had bid for 3 rooms.  He had paid application fees inclusive of  GST at Rs.240/- each and had remitted Rs.2240/- as per receipt Nos.AI 33762, AI 33763 and AI 33764, on 27.7.2018.  Rooms were allotted on license basis for one year, which was renewable for further periods up to 10 years, as per conditions mentioned in  tender/invite.  As per tender conditions, opposite party was bound to make the rooms usable for business and to hand over possession within 6 months.  Complainant and others were promised that they will be given space upon less investment with ample parking space.  Employees of                                                                                                      (cont….2)

• 2  -

opposite party had made the complainant believe that the investment will be profitable and the amount given as security will bring in more income than any other investment.  Thereafter on the date of auction, complainant had deposited Rs.50,000/- and first instalment totaling Rs.2,25,000/- for each room.  On 9.8.2018 and 29.8.2018, complainant had remitted Rs.7,50,000/-  in total.  Remittances were made before District Transport Officer at Thodupuzha.  On 8.8.2018, a provisional allotment letter was given to complainant by General Manager (Finance and Administration) of opposite party with regard to the shop rooms.  However, opposite party was unable to hand over possession of the shop rooms, ready to be occupied, as promised by them even after lapse of more than 2 years.  Ample parking spaceas promised is not available. Sincerooms were  not handed over despite long delay,complainant was unable to commence business in the shop rooms.  He had realized that it was not possible for him to go forward with auction proceedings.  Opposite party had cheated the complainant by promising things which it cannot do.  Failure to hand over possession after making the shop room ready for business with ample parking space is deficiency in service from the side of opposite party.  Complainant had withdrawn from the tender and had issued a lawyer notice to opposite party seeking return of the amount deposited by him towards auction of the shop rooms including amount expended for application with 18% interest and damages of Rs.10 lakhs, on 7.1.2021.  However, there was a clerical error in the notice with regard to the deposit amount mentioned and correct amount is mentioned in the present complaint.  Opposite party was in receipt of lawyer notice on 11.1.2021.  No reply was given and neither amount was returned by it.   On 26.2.2021, complainant was requested to be present before Estate Officer of opposite party for personal hearing.  However, the Estate Officer has only promised to hand over possession as and when construction of the building is completed.  This is not acceptable to complainant.  Complainant submits that opposite party was negligent and careless in keeping up its part of bargain.  Complainant is entitled to get back the amount paid for getting the rooms including the amount expended towards auction, with 18% interest, damages of Rs.10,000/-.  Accordingly he had filed this complaint claiming the said amount and litigation costs.

 

          2.  Complaint was admitted and upon notice opposite party had entered appearance.  However, it had filed written version belatedly along with an application to set aside the order making it exparte.  Opposite party has mainly contendedin the written version that there is no consumer – service provider relationship between complainant and opposite party.  It has also contended that no consideration was received and only a refundable  deposit as interest free was obtained from complainant and other bidders. 

 

          Since  written version was filed much after expiry of stipulated limit of 30 days and further since extension, if any, by this Commission can be only for a further period of 15 days, it was not accepted.Application to set aside order making opposite party exparte is not allowed.                                                                                    (cont…..3)

• 3  -

 

          3. Though the case was repeatedly posted for complainant’s evidence, no oral evidence was tendered by him.  Initially 3 documents produced along with the complaint were marked as Exts.P1 to P3.  Ext.P1 is photo print out of elevation of KSRTC shopping complex, Thodupuzha, which proclaims that the commercial complex wasa golden opportunity for progress of public, one to realise their dreams along with progress of the country.  Ext.P2 is a copy of tender publication dated 25.7.2018 and Ext.P3 are in fact 3 receipts with regard to payment of application fees of Rs.2,240/-.  Subsequently, counsel appearing for complainant had made an earlier application for reopening evidence and receiving 5 more documents.  These were marked as Exts.P4 to P8.  Ext.P4 is receipt for remittance of Rs.2,25,000/- dated 9.8.2018, issued by opposite party to complainant.  Ext.P5 is similar receipt issued for remittance of Rs.7.50,000/- dated 29.8.2018, by District Transport Officer, Thodupuzha.  Ext.P6 is provisional allotment order dated 8.8.2018 issued to complainant by General Manager (Finance and Administration) of opposite party.  Ext.P7 is office copy of lawyer notice issued to opposite party by the Advocate of complainant, dated 7.1.2021, along with AD Card evidencing receipt of the same by opposite party.  Ext.P8 is a letter issued by Estate Officer dated 18.2.2021 to complainant requesting him to appear before him, on 26.2.2021 at 11 a.m., in connection with Ext.P2 lawyer notice, for personal hearing.  We have heard the learned counsel for complainant.  We have also carefully perused complaint and documents admitted from the side of complainant.  Now the points which arise for consideration are :

1)   Whether complaint is maintainable ?

2)  Whether there is any deficiency in service ?

3)  Whether complainant is entitled for reliefs prayed for in the complaint ?

4)  Final Order and costs ?

 

4.  Point Nos.1 to 3 are considered together :

 

          It was contended by the learned counsel for complainant that failure to hand over possession of completed shop rooms with parking space as promised by opposite party amounts to deficiency in service on its side.  Besides, it can be seen that there were advertisement by opposite party that the proposed shopping complex would afford better opportunity for progress of the successful allottees and that there will be ample parking space.  It was also promised that the deposited amount will give more returnsthan any other mode of investment.  Complainant and other successful bidders were misled by the advertisement and invested in the venture of opposite party.  Therefore complainant is entitled to get back the amount paid and expended towards auctioning of the shop rooms along with damages prayed for with litigation costs.

 

                                                                                                                   (cont….4)

• 4  -

          Upon going through the complaint in its entirety and Ext.P2 tender conditions, we are unable to agree with the learned counsel.  What the complaint and Ext.P2 discloses is a proposed agreement / contract  between complainant and opposite parties with regard to allotment of shop rooms to be constructed by opposite party in its own premises and owned by it.  As per Ext.P2, shop rooms were to be rented or licensed to the person  who deposits maximum interest free deposit.  Though initially condition No.2 states that the rooms are to be allotted for rent,subsequential wording are to the effect that a licence is will be issued granting permission to occupy the rooms initially for one year, though the period could be extended to a maximum of 10 years, upon further conditions as prescribed by opposite party.   Square feet area of each room, minimum amount of interest free deposit and basic rent/license fee for each square feet is also given in tabular form under conditions No.9 of Ext.P2.  The deposit amount is returnable upon expiry of lease or licenseas the case may be.  Opposite party is building a complex on its own premises.  It remains the owner.  Tender conditions and complaint averments only prove a consensus between the opposite party and successful bidders in auction to give possession/permission for occupation of respective rooms to successful bidders upon rent or licence fee,  when construction of proposed shopping complex is completed, which is under the exclusive ownership of opposite party. Interest free deposit given by complainant is only, as the term indicates,  a deposit which is returnable to complainant upon expiry of lease or license. Though the deposited amount is at the disposal of opposite party to be utilized during the subsistence of lease/license, interest which it could have fetched cannot be considered as consideration as per tender conditions. Neither do tender conditions reflect a relationship akin to a builders agreement.Creation of future license or lease will not confer any rights on the building which is not even in existence in presentum.

 

In other words, the arrangement is only for creation of a proposed lease or licence for occupation of shop rooms in a building complex yet to be constructed, owned by opposite party. Such an agreement will not reflect consumer – service provider relationship between complainant and opposite party.  There is no consideration and neither is any service being rendered by opposite party.  If at all, the terms of agreement are breached by opposite party, remedy open to complainant  is  to seek appropriate reliefs  before a Civil Court of competent jurisdiction.  Though the complainant has pleaded that possession was to be handed over within 6 months of deposit of interest free amount as per Ext.P2, we do not find any such condition in P2. Conditions in P2 reveal that possession/occupancy is to be given upon final allotment after rooms are ready for occupancy. Construction of building is only one stage. Requisite power, water connections are to be obtained and permission of local authority viz., numbering of building is also necessary. There is no mention of any period within which construction is to be completed by opposite party and completed building is to be made ready for                                                                                                             (cont…..5)

• 5  -

use/occupancy.  This is evident from Ext.P2 itself.  Ext.P2 discloses that building was under construction when tender was published.  There is no specific condition with regard to completion of the building within a specified period.  Though it may be so, we are of the opinion that the building ought to have been constructed and possession of shop rooms ought to have been hand over to successful bidders within a reasonable period.  However, as there is no consumer – service provider relationship between complainant and opposite party, complainant cannot be considered as consumer as defined under Section 2(7) of the Act and neither opposite party as service provider.  Tender condition to hand over possession after completion of construction of building with ample parking space cannot be considered as a service given by opposite party upon consideration,  as defined under Section 2(42) of the Act.  That being so, present complaint cannot be considered as a complaint as defined under Section 2(6) of the Act.  Hence we find that the complaint is not maintainable before this Commission.  There could not be deficiency of service as such, though there may be a liability on opposite party in case there is breach of tender conditions from its side, which could be enforced by a  competent Civil Court.  Complainant is not entitled for the reliefs prayed for in this complaint.  Point Nos.1 to 3 are answered accordingly. 

 

5.  Point No.4 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.  Parties shall take back extra sets of copies, without delay.

 

                       Pronounced by this Commission on this the   22^nd   day of March, 2023

 

      Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                          Sd/-

         SMT. ASAMOL P., MEMBER

                                Sd/-       

        SRI. AMPADY K.S., MEMBER

 

 

 

                                                                                Forwarded by Order,

 

 

 

                                                                           ASSISTANT REGISTRAR