Complaint filed on: 08.08.2011

                                                      Disposed on: 28.01.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.1468/2011

DATED THIS THE 28^th JANUARY OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

M/s Corporate Automation Solutions

A Partnership Firm having its office: No.1055, 12^th A Main

HAL II stage,

Bengaluru-560008

Represented by its Managing Partner

Mr.P.R.Seshadri

s/o Mr.P.S.Ramanathan

Aged about 61 years

By Adv. Sri.Suresh S. Lokre

V/s

Opposite party:-       

M/s Damden Properties

Damden Yerra, 4^th Cross,

Venkateshwara layout

Tavarekere Main road

Near Big Bazaar

Koramangala

Bengaluru-560029

Represented by Managing Partner Mr.Damla Mathew

By Adv. Sri. Chandan.T.J

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has prayed for direction to restore 35% of the constructed terrace area with compensation amount of Rs.1 lakh and litigation charges.

          2. The case of the Complainant in brief is that he entered in to joint development agreement dated 03.01.2004 with Opposite party towards the construction of the building in 19437sqft. land in Munnekolalu of Mahadevapura CMC with sharing ratio as per clause no.3(a) and 3(b) and clause no.8. He was entitled for 35% of the constructed area and terrace area. 35% of the constructed was only handed over to him. The terrace area is not handed over to him and it becomes breach of clause no.8. In response to legal notice dated 28.01.2011 no reply was given by Opposite party. Hence this complaint is filed.

          3. The Opposite party has filed his version contending that the Complaint is not maintainable. There is no relationship of consumer and service provider between them. In order to wrongful gain and to blackmail, this complaint is filed with malafide intention. In terms of joint development agreement, the Complainant ought to have approached the relief under arbitration or under specific performance of contract. He has not agreed to construct in terrace area in order to share the same.  As per the mutual understanding they have taken the respective shares. The complaint is liable to be dismissed with exemplary costs.

          4. The Complainant and the managing partner of the Opposite party filed their affidavit evidences. The Complainant has relied on Ex-A1 to Ex-A5 documents. No documents were produced by the Opposite party. Written arguments were filed by both the parties. Arguments were heard.       

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant is not the consumer under CP Act relating to JDA with Opposite party as alleged by the Opposite party ?        
2. Whether the Complainant establishes the alleged deficiency in service in not sharing the terrace portion by the Opposite party ?
3. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Affirmative

2) Does not survive for consideration

3) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that by virtue of joint development agreement as per Ex-A1 dated 03.01.2004 between the complainant and the Opposite party, towards the construction of the building in 19437sqft. land in Munnekolalu of Mahadevapura CMC, the sharing ratio as per clause no.3(a) and 3(b) and clause no.8, says that the complaint becomes entitled for 35% and the opposite party becomes entitled to get 65% of the constructed area including the terrace area. 

8. The contention of the complainant is that 35% of the constructed area/portion was only handed over to him and he is entitled to get 35% of the terrace area also and accordingly has demanded the same through legal notice Ex-A2 dated 28-1-2011.

9.The Opposite party contends that there is no relationship of consumer and service provider between them and in terms of joint development agreement, the Complainant ought to have approached for the relief under arbitration clause or under specific performance of contract and he cannot be considered as “consumer” under the CP Act.

10. The Opposite party has relied on the order dtd.31.08.16 of Hon’ble State Commission in CC.No.1145/2016 (Bengaluru Motors pvt. ltd. Vs Vijaya Bank), wherein the proviso to sec.2(1)(d) was made applicable to the Complainant therein for the definition “consumer” and treated him as “not the consumer” as he is the dealer of Volkswagen vehicles.

11. In the instant case the Complainant as individual and as the proprietor of his business declared himself as the party              no. 1 and entered in to JDA as per Ex-A1 with Opposite party. Ex-A1 says that the said property carved out survey no.126 of Munnekolalu village was purchased by M/s.Corporate Automation solutions. That means the said land was purchased in the name of “business firm being run by the Complainant P.R.Sheshadri”. It also shows that the said purchased property became the property of the business firm that means it becomes commercial property and not treated as the individual property of P.R.Sheshadri/Complainant.

12. The Complainant has relied on the reported decision in civil appeal no.3302/2005 of Hon’ble Supreme Court dtd.10.07.2008, wherein it was observed that where the builder commits breach of his obligation under JDA the owner in addition to enforce specific performance and claiming of damages through civil courts also, can approach as consumer under CP Act against the builder who is a service provider. In this referred case the Complainant was an individual and not the business firm. It was the dispute between the individual and the builder. Thereby the Opposite party contends that as observed in the referred order of Hon’ble State Commission the complaint does not come under the definition “consumer” and thereby his complaint becomes not maintainable before this consumer forum.

13. In view of the above observations it is clear that the decision relied on by the Complainant relating to individual cannot be made applicable to this complaint deals with the property of the business firm and it has to be treated as not maintainable as observed in the above referred order of our Hon’ble State Commission. In the result the Consumer Dispute No.1 is answered in the affirmative.

14. Consumer Dispute No.2: In view of the findings of the Consumer Dispute No.1 which is answered against the Complainant, the Consumer Dispute No.2 does not survive for consideration.

15. Consumer Dispute No.3: In view of the findings of Consumer Dispute No.1 & 2 the Complainant deserves to get the following:

ORDER

          The Complaint of the Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 28th day of January 2017).

Documents marked on behalf of Complainant:

Documents produced on behalf of Opposite party