KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No. 45/2023

ORDER DATED: 11.07.2023

(Against the Order in C.C. 159/2014 of CDRC, Wayanad)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

REVISION PETITIONER:

M/s Anugraha Enterprises, represented by its Managing Partner, Sreekanth S., S/o S. Sudhakaran Nair, ‘Ushus’, Puthuppariyaram P.O., Thodupuzha, Idukki.

            (By Adv. Sreevaraham N.G. Mahesh)

                                                Vs.

RESPONDENT:

M/s Poddar Plantations, A division of Rippon Estate Ltd., represented by its President and Principal Officer, Sunil Sivaraman, S/o Sivaraman Nair, Rippon Estate Bungalow, Meppadi Post, Muppainad Amsom and Desam, Vythiri Taluk, Wayanad.

ORDER

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

The revision petitioner was the opposite party in C.C. No. 159/2014 before the District Consumer Disputes Redressal Commission, Wayanad (will be referred as District Commission).  The District Commission had dismissed two petitions filed by the petitioner as I.A. Nos. 169 of 2023 and 225 of 2023 on 18.05.2023.  I.A. No. 225 of 2023 was filed with a prayer to receive the version filed by the petitioner and the other petition to challenge the maintainability of the case filed by the complainant.

2. The case of the complainant is that they had requested the opposite party for the construction of a poly house and the materials for the same were stocked at the premises of the complainant, but the work was not carried out as per the stipulation.  Thereby the complainant incurred loss by way of demurrages for keeping the materials and hence sought for realization of compensation and other reliefs. The opposite party did not appear before the District Commission on receipt of notice and hence set ex-parte on 17.09.2014. Later the  opposite party was permitted to contest the matter on merits as per the order of the Hon’ble High Court in Writ Petition No. 5309/2016 dated 26.08.2022 .  On 29.09.2022 the complaint was restored and the opposite party appeared before the District Commission on 16. 11.2022, but still no version was filed.  On 09.02.2023 the opposite party filed version along with I.A. No. 225 of 2023 to condone the delay caused in filing version.  I.A. No. 169/2023 was also filed contending that the complaint was not maintainable as the transaction involved was commercial in nature.

3.  The revision petitioner had challenged the order of the District Commission on the reason that the complainant is a private limited company and as a part of their business transaction they had invited quotations for installation of a poly house.  According to them since the transaction involved was a profit making commercial transaction the complainant would never come within the definition of “complainant" as per Section 2(d) of the Consumer Protection Act 1986. The petitioner placed reliance upon the rulings of the Apex Court reported in 1995  KHC 845 in Lakshmi Engineering Works versus PSG Industrial Institute and 2000 KHC 907 in Kalpavriksha Charitable Trust versus Toshniwal Brother Private Limited & anr.and another ruling reported in 2012 (2) KHC 936 in Kerala Hotel and Restaurant Association Thrissur versus Thrissur District Consumer Redressal Forum  and canvassed a proposition that the District Commission was competent to examine whether the complaint was maintainable or not.  The Hon’ble High Court of Kerala, in 2022 (7) KHC 441 Haridas versus State of Kerala had found that when question of maintainability is raised the said issue has to be decided first before deciding the matter on merits.

4.  Heard the Counsel for the revision petitioner, perused the revision petition and the Order passed by the District Commission.

5.  Admittedly version has been filed by the petitioner after the expiry of the statutory period.  The Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 has categorically declared that the District Commission has no authority to receive the version if filed after the period of 45 days from the date of receipt of the notice.  So the District Commission was perfectly correct in declining the request of the petitioner to receive the version after the statutory period prescribed by the Consumer Protection Act.  Since the petitioner was set ex-parte he has no right to contest the matter on merits.  The contention raised by the petitioner that the transaction involved is a commercial one could be examined and decided only at the final stage of the proceedings.  It was too early for the District Commission to reach a conclusion that the transaction is a commercial one. Therefore we couldn't find any illegality or impropriety in the order passed by the District Commission and there is no reason to admit the revision. Accordingly the revision is dismissed.

               It is found necessary to give a direction to the District Commission, Wayanad to consider as to whether the transaction alleged in C.C. No.159/2014 is commercial or not.  We direct the District Commission, Wayanad to consider whether the transaction alleged is commercial or not.  Untrammelled by the observation contained in the impugned order this aspect is to be decided when final order in the case is passed.  A copy of the order shall be transmitted to the District Commission, Wayanad for compliance.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                              AJITH KUMAR  D. : JUDICIAL MEMBER

jb                                                                                        RADHAKRISHNAN K.R.  : MEMBER