COMPLAINT FILED ON 17/12/2020

                                                                                                          DISPOSED ON 04/01/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:102/2020

DATED: 04^th JANUARY 2023

PRESENT: -  Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                     Sri. G. SREEPATHI, B.COM., LL.B., MEMBER                         Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER

:ORDER:

Sri. G. SREEPATHI, MEMBER              

This complaint has been filed by the complainant under section 35 of Consumer Protection Act, 2019 (herein after referred to as the Act) against the opponent seeking relief to pay loss of earning/Income of Rs.4,00,000/-, for mental agony Rs.2,00,000/-, interest at the rate of 24% P.A. for the amount of Rs.20,000/-, illegally kept by the opponents from 12/07/2020.

2. The case of the complainant in brief is as under;

        The schedule property belongs to Taluk Panchayat, Chitradurga   is   leased   to   the   complainant  under  lease / rent

Agr`eement executed by opposite party.    Executive officer,    Taluk

Panchayat, Chitradurga on 13-7-2020 by imposing some Conditions. Complainant has deposited Rs.20,000/- to  State Bank of India on 12-07-2020 as advance.  The rent was fixed by the opponent at Rs.2,000/- per month. For the same complainant agreed as per lease agreement, commenced from 13/07/2020 for a period of 3 years with an enhancement of rent at 20% on completion of every 3 years. The complainant has executed the agreement and asked  the opposite party to handover the possession of vacant site to an extent of 8 x 8 feet bounded by East Road, West-Choultry, North-Harsha Tea Stall and South-Deepa Medical Agencies, the complainant intended to put up Dabba shop to run Puncture shop as per condition imposed by Taluk Panchayat.

3. Further the complainant states, in the meanwhile he learns that, the opposite party has leased the petition schedule property and other property to one B.R. Harsha raj on 17-12-2019, the opponent has no manner of right, title or interest whatsoever to lease the property leased to complainant. Complainant made complaint to the opponent, he want to escape from his liability formally lodge complaint to the town police but the police and opponent have not taken any action.

4. Complainant states in his complaint that he knocked the door of the opposite party and requested them, but for one or the other pretext dragging the matter. The complainant has deposited advance on 12-7-2020 through State Bank of India and the opposite party has received the same. The complainant is fulfilling the terms and conditions on his part.  Opposite party deliberately and intentionally not fulfills his part of contract. With this complainant faced service deficiency and negligence of work on the part of the opposite party, also suffered mental agony and loss of income.

5. Complainant states in his complaint that, he is the only earning member in his family and receiving income from his Puncture shop.  Complainant knocked the door of the opposite party hundreds of time, for the same opposite party has not allowed him to meet and arrange to fulfill the terms of agreement. With this complainant sustained heavy loss. Complainant states that the place allotted to him is situated in the heart of the City and near to vegetable market which provides him to earn more. Even the period of lease is in force and opposite party failed to show any other place to the Complainant even after receiving the amount from him, with this he has faced deficiency of service from the act of opposite party. With this complainant has filed this complaint before this commission.

        6. Among the opposite party who has been notified of the complaint, one Mr. M.V. Advocate appeared and filed power on behalf of opposite party on 25/01/2021 and on 17/02/2021 filed application under section 9 R/w 151 CPC and prays for dismissal of the complaint on the ground of Jurisdiction as the point involved in the complaint is mainly breach of Contract which comes under the Civil Court Jurisdiction, with this opposite party prays for dismissal of the case. Further opposite party has not filed objection to the main complaint and also evidence by way of affidavit.

        7. It is the case of the complainant that there was Lease/Rent agreement executed by opposite party on 13/07/2020 after depositing Rs.20,000/- as advance to State Bank of India on 12/07/2020 by fixing Rent of Rs.2,000/- p.m. for a period of 3 years with an enhancement of rent at 20% per annum. Further complainant alleges that opposite party failed to handover the possession of vacant site complainant has filed his evidence by way of affidavit along with true copy of agreement and of challan for having  deposited   Rs.20,000/-   advance  to  opposite  party  and

the same were marked as Ex.A-1 and Ex.A-2 and also xerox copy of complaint lodged against complainant by opposite party to the Town Police Station, Chitradurga complaining encroachment of extra space and making arrangement for putting permanent structure to open a shop.

        8. Complainant counsel filed written arguments. Heard the arguments of complainant side.

        9.  The Points that would arise for our consideration are as under;

1. Whether there is deficiency of service on the part of the opposite party?
2. Whether the complainant is entitled for the compensation as sought?

2) What Order?

10. Our finding on the above points are as follows:

Point No. (1) Nagative.

Point No. (2) Nagative.

Point No. (3): As per the final order for the following.

REASONS

      11. Point No.1 & 2: The complainant has reiterated the fact stated in his pleadings, in the affidavit filed in the form of their evidence in chief. Complainant produced Ex.A-1, true copy of agreement, on perusal of the same it clearly discloses that “vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄwAiÀÄ ªÁtÂdå ªÀĽUÉ ¨ÁrUÉ PÀgÁgÀÄ ¥ÀvÀæ-PÀ.¥ÀA.gÁ (vÁ.¥ÀA.ZÀgÀ ºÁUÀÆ ¹ÜgÀ ¸ÀévÀÄÛUÀ¼À Cdð£É ªÀÄvÀÄÛ ªÀUÁðªÀuÉ) ¤AiÀĪÀÄUÀ¼ÀÄ 1996 £ÀªÀÄÆ£É-2, this document clearly establishes that, the said vacant site has been agreed to use for commercial purpose after executing Rent agreement between opposite party and complainant by fixing monthly rent of
Rs.2,000/-.   On   perusal   of   documents produced by complainant

which clearly establishes that, the relation of complainant and  opposite  party   is purely land lord and tenant and also the purpose is clearly for commercial use. In a case between Laxmiben Laxmichand Shah V Sakerben Kanji I (2001) CPJ 7 (SC) confirming Laxmiben Laxmichand Shah V Sakerben Kanji I (1992)  reported in CPR 74 NCDRC, it is quoted that “Tenant is not a consumer”, on observing the same, it clearly establishes that complainant is not a consumer and he has failed to substantiate the grounds for relief. The important point notified in the said complaint is that the agreement executed in between complainant and opposite party shows that complainant is not a consumer and the said complainant failed to show that there is a deficiency of service on the part of opponent. With this complainant is not entitled for any compensation as prayed by him in the complaint. Accordingly we answer Point No.1 and 2 in negative.

12. Point No.3: In view of the discussion made above we proceed to pass the following;

::ORDER::

        The complaint filed by the complainant is hereby dismissed. No order as to costs.

Supply free copy of this order to the both the parties and return extra copies of pleading and evidence to the parties.

Application pending if any, stand disposed of in terms of the aforesaid Judgement.

(Dictated to the Stenographer directly on computer, typed by him, the transcript corrected, revised and then pronounced in the open commission by us on 04^th January 2023.)

  LADY MEMBER                 MEMBER                 PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Sri. N. Ningappa S/o Late Mylarappa, by way of affidavit     

            evidence.

Witness examined on behalf of opponent:

Nil.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

Nil.

  LADY MEMBER                 MEMBER                 PRESIDENT

GM*