D.O.F:23/05/2022
D.O.O:30/11/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.99/2022
Dated this, the 30th day of November, 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
P.M. Shareefa
D/o K.M. Muhammed Musaliyar,
Tajudheen Manzil, Parappa Post,
Delampady, Mulleriya (Via) : Complainant
Kasaragod- 671543
(Adv: B. Aboobaker)
And
- M/s Reliance Communications Infrasructure Ltd
Deerubhai Ambani Knowledge city,
Navi Mumbai – 400710
(Adv: P. Fazil, Prabitha.C, Ann MaryFrancis, Sruthi.R)
- Mr.Anish Niranjan Nanavathi
Erst while Resolution Professional,
Reliance Infratel Ltd, 2A, 208, Raheja Classique
New Link Road, Anderi west, Mumbai – 400053
- Deloitte Touch Tohmatsu India LLP
India Bulls Finance Centre, Tower 3
-
Elphinstone Road (west) Mumbai – 400013
: Opposite parties
- H. Muralidharan, State Coordinator (Kerala),
M/s Reliance Communications
Infrastructure Ltd
S/o Sri Late Hrishikesan Nair
R/at Muttara house, Vanchiyoor P.O
Thiruvananthapuram – 695035
ORDER
SRI.KRISHNAN.K :PRESIDENT
The Complainant filed under section 35 of Consumer Protection Act.
The case of complainant is that she is the owner in possession of land in RS No.418/1B2 Delampady Village as per Gift deed 1075/1981of SRO Badiadka. Opposite Party installed mobile tower in the property with agreement to pay monthly rent for a period of 20 years subject to payment of enhanced rent. Opposite Party failed to pay rent for three months and Opposite Party No:2 informed terminate agreement; despite lawyer notice no relief. But Opposite Party No:2 informed by e-mail dated 23/10/2020 that they agree for arrears of Rs.2,93,075/- instead of claim of Rs.3,23,051/- now Rs.4,41,653/- is due on 23/04/2022. The Complainant claimed to direct the Opposite Party to pay arrears of Rs.4,41,653/- and to remove the tower and equipment and to pay Rs.2,00,000/- damages and loss caused compensation or allow complainant to remove and sell tower and equipment and adjust the same towards amount claimed.
2. The Opposite Party No:1 and Opposite Party No:2 filed IA 227/2022 and preliminary objection that Complainant is not a consumer and complaint is not maintainable since complainant has not availed any service from the Opposite Party for consideration. There is no Deficiency in service, dispute is that of commercial nature. Subject matter relates breach of contract if at all, and is not consumer dispute. Opposite Party is a corporate debtor facing insolvency proceedings. Complainant is to approach Interim Resolution Professional in National company law Tribunal Mumbai.
Point for consideration is whether complainant is a consumer as per Consumer Protection Act, 2019, Consumer complaint is maintainable since relief claimed is for arrears of rent as per agreement and to remove equipment or to permit to sell and adjust proceeds?
3. The main contentions are that the complainant alleged that Opposite Party agreed to pay monthly rent and later failed to pay the amount due. There are no averments in the complaint, Opposite Party agreed to provide any service or there is any Deficiency in Service or negligence or thereby any unfair trade practice. Hence, as per the case of complainant, the subject matter contract is entered in to for fixing mobile towers for rent and rent is due and for recovering rent complaint is filed. Hence she will not come under the definition of ‘consumer’ as defined under section 2(1)(d) of the Consumer Protection Act, 2019.
4. The Complainant have not been able to establish any Deficiency in Service or consumer dispute as contemplated under the Consumer Protection Act, which could be attributable to the Opposite Parties.
5. The complainant filed the captioned complaint which otherwise is a dispute of civil nature and complaint is not maintainable in law and is liable to be dismissed.
6. It is pertinent to note that the present complaint has been filed by the complainant without any substantial proof to show that any act as contemplated in the complainant amounts to Deficiency in service.
7. The Complainant have prayed for relief which otherwise have to be claimed in a suit for recovery and damages after paying appropriate court fee. The complaint made out is not maintainable at all as for all purpose that complaint is a suit for breach of contract and for claim of damages arising allegedly from the said breach and the dispute between the parties therefore, is of civil nature which can be adjudicated only by a civil court.
8. We have heard the learned counsel for the complainant and learned counsel for the Opposite Parties, we have persuaded the pleadings evidence and documents present on the record.
9. Considering the averments in complaint, nature of relief claimed by complainant, since there is no Deficiency in Service as the claim is due to alleged breach of contract and payment of benefits as per terms of contract no service is to be performed or agreed to be performed by the Opposite Parties but wherever there is a contract and violation or breach of its performance comes under dispute coming within the civil nature and there is no allegation of Deficiency in service or negligence and complainant is not a consumer and complainant is not maintainable.
10. In the result complaint is dismissed as not maintainable with liberty to move before the appropriate authorities as per law if so advised.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
