IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the   25^th   Day of  June   2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                        CC No.132/15

Radhulsha                                         :         Complainant

Asna Manzil

Perumpuzha, Keralapuram

Kollam.

[By Adv.V.Manilal]

Vs

1. Pradeep                                   :         Opposite parties

         S/o Sasidharan Pialli

         Pulivila Veedu, Perumpuzha

        Elampalloor, Kollam.

2. Sasidharan Pillai

         Pulivila Veedu, Perumpuzha

        Elampalloor, Kollam.

        [By Adv.Dheeraj Ravi]

FAIR ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

                This is a case based on a  consumer complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service and unfair trade practice on the part  of the opposite parties.

The averments in the complaint in short are as follows:-

The 1^st opposite party is a builder and he has sold a defective house to the  complainant by receiving  Rs.17,25,000/- towards the value of the house and Rs.3,75,000/- towards the value of the plot in which the building has been constructed.    The   opposite   parties  made  the  complainant to believe that the

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house has been constructed very strongly at the supervision of the 2^nd opposite party for the purpose of the residence  of the 1^st opposite party and now the opposite parties are  feeling financial stringency and hence they have decided to sell the house.  However the complainant paid the entire sale consideration and got it registered in his name by a registered sale deed.  Later it was understood that the opposite parties have been cheating the complainant that with a malafied intention to obtain unjust enrichment they have   sold a defective constructed residence to the  complainant. However without knowing that fact the complainant after purchasing the house rented out to one Shahul  Hameed.  Within a few months the tenant has vacated the house by stating that the wall and basement of the house building has been breaking day by day with heavy sound.  On physical verification it is understood that all the walls and basement have  been   broken   and  all  the doors were not able to be closed, the tiles were damaged   and   the  entire house has been damaged.  The complainant rushed to the  1^st opposite party and intimated the fact.  He directed the complainant that he shall not divulge the fact to anybody else and the complainant shall resell the building by curing the defects and return the amount with compensation and interest but not complied with the above promise.  According to the complainant  the above act of the complainant amounts to unfair trade practice and  that there  is  deficiency in service on the part of the opposite parties.  Hence the complaint.

          The opposite party resisted the objection by filing a detailed version by contenting that the complaint is not maintainable either in law or on facts.  That there is no consumer service provider relationship between the complainant and the opposite parties.  This forum is not having pecuniary jurisdiction to entertain the complaint.   There is no agreement between the complainant and opposite party to construct any residential building for the complainant.  The complainant  has purchased the building  by executing  an outright  sale deed by

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paying the consideration.  The complainant has purchased the house building not for occupation but for  resale  the same for profit.  After purchasing the above  residence  the  complainant  has not occupied  it but rented out to another person.  The 2^nd opposite party is the father of the 1^st opposite party but has no role in executing the sale deed nor he has any assurance to the complainant regarding the safety and security of the house building.  The complainant has purchased the same after having personally verified the construction that the 1^st opposite party has purchased the said house building on 17.11.12 from one Shajahan, S/o Ismayil Kutty  that  the  1^st opposite party has only renovated the building.  The allegation that the  opposite parties  have made the complainant to believe that the building was strongly constructed with high quality materials is incorrect as they have not constructed the said building.  However the opposite party would admit that the house building has been damaged due to thebreakage of wall and basement.  But the same is not due to the deficiency in service on the part of the opposite parties and   therefore they are having no liability  regarding  the damage  of the building.  The opposite parties have no role in the construction of the house building.  They have not made any assurance that they will re-sell the house building return the amount, return the sale consideration with interest and compensation.  The complainant is not a consumer within the definition of  Consumer Protection Act and therefore the complaint is not maintainable before this  Forum.  However the 1^st opposite party has filed a complaint and got it forwarded to the Police through  JFCM, Kollam and registered a case and the same is pending as CC.1076/16.  As a criminal case is pending the complaint is not maintainable before the  CDRF.

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The opposite parties have also filed additional version raising the following additional contentions.  The 1^st opposite party who was not having any residential house of his own purchased the disputed house building and  2.2 ares of property from one Shajahan , S/o Ismayil Kutty.  At the time of purchasing the construction of the house  was almost over except wiring and painting work.. He has completed that work, paid building tax but when the 1^st opposite party  met  financial  stringencies he decided to dispose of the property and the same was purchased by the complainant who used to purchase house property on meagre price from the person who has been  suffering from financial  stringency.  After verifying the house building and property  and after verifying its documents the complainant has  purchased it for Rs.1,00,000/-.  The contention that the property was purchased  for Rs.3,75,000/- and the house building was purchased for Rs.17,25,000/- and altogether spent Rs.21,00,000/- is incorrect.    The 2^nd opposite party has no connection with the sale of house building and property between the complainant and the 1^st opposite party.  He has also not given any assurance regarding the strength  and quality of  the building   and   the   complainant   after   verifying   the  house  building directly  purchased it as per valid registered document.  No agreement for sale was executed between the complainant and 1^st opposite parties regarding the sale of house property. However the opposite parties would admit that there occurred some damage due to the breakage of wall and basement of the house building.  But according to them it was not due to any fault of the opposite parties that after purchasing the house building it was rented out to strangers and they have conducted some maintenance work without paying heed  to the safety of  the building.  If at all the building has been damaged it is none of the fault  of the opposite parties and they are not liable for the same.  The transaction between the complainant and 1^st opposite party was sale of house building and property. The 1^st opposite party  sold  the house building and property to the complainant

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who purchase the same.  Therefore the complainant would not come within the definition of consumer  under the   Consumer Protection Act and therefore he  has no right to file a complaint before the CDRF.  As a criminal case has been registered on the basis of the complaint lodged by the complainant no complaint is maintainable before the CDRF.  There is no consumer - service provider relationship between the complainant and the opposite party.  The complainant is not entitled to get  any amount  refunded or the costs of the proceedings.

          The 1^st opposite party has also filed a petition under Section 13(3)B of the Consumer  Protection Act praying to hear the maintainability of the complaint as a preliminary issue and dismiss the complaint.  The  first ground urged in the said petition is that the  Forum is having no pecuniary jurisdiction to entertain the complaint and the second ground is that there is no consumer service provider relationship between the parties.  The complainant here in  who is the respondent in IA resisted the IA with tooth and nail.  After hearing both sides and perusing records the Forum allowed  the IA by  finding  that the complaint is not maintainable as there is no consumer service provider relationship between the parties and that sale of immovable property would not come within the purview  of the Consumer Protection Act.  It is also found that the relationship between the parties must be that of a consumer and trader of goods (movables) or consumer service provider relationship.  The pleadings in the complaint would not show that the complainant has not availed the service of the opposite parties for the construction of the building but on the other hand the complainant has purchased he house building and 2.2 ares of property by executing an outright   sale deed.  In the circumstance the Forum found that there is no consumer service provider relationship between the complainant and the opposite party.

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It is to be pointed out that  the complaint not relating to unfair trade practice or deficiency in service of any trader or the service provider under Section2(1)(c) nor the complainant would come within the definition  of consumer under Section 2(1)(d).  The materials available on record would clearly indicate that it is a civil dispute between the complainant and the opposite parties.  As there is no consumer trader/consumer service provider relationship the complaint is not maintainable  and the same is only to be dismissed.  In the result complaint stands dismissed.  However in view of the facts and circumstance of this case  it is made clear that the complainant is at liberty to approach the Civil Court on the same cause of action as she has been litigating before wrong Forum.

          Forward a copy of the order to both sides as per rules.

Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 25^th day of  June  2019.

                         E.M.Muhammed Ibrahim:Sd/-

                                                                                                 S.Sandhya Rani:Sd/-

                                                                                                 Forwarded/by Order

                                                                                                  Senior Superintendent