KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.47/2023

ORDER DATED: 31.07.2023

(Against the Order in I.A.No.44/2023 in C.C.No.151/2021 of DCDRC, Pathanamthitta)

PRESENT:

REVISION PETITIONER/OPPOSITE PARTY:

(by Advs. Kulathoor Vincent & N. Premakumar)

Vs.

RESPONDENT/ COMPLAINANT:

O R D E R

SRI. K.R. RADHAKRISHNAN : MEMBER

          The petitioner in I.A.No.44/2023 in C.C.No.151/2021 of the Consumer Disputes Redressal Commission, Pathanamthitta (hereinafter referred to as the District Commission for short) is in revision, challenging the order dated 12.04.2023 dismissing the petition.  The Revision Petitioner is the opposite party in the complaint.  The respondent herein is the complainant.  I.A.No.44/2023 was filed by the Revision Petitioner before the District Commission challenging the maintainability of the complaint.  The said petition has been dismissed by the District Commission holding that the complaint was maintainable. Aggrieved by the said order this revision is filed.

2.       The complaint was filed before the District Commission for the alleged deficiency in service on the part of the Revision Petitioner/opposite party in connection with the construction of house for the complainant, claiming a compensation of Rs 20 lakhs. The opposite party entered appearance and filed his version. Thereafter he filed IA 92/2022 with a prayer to keep the complaint in abeyance before the District Commission pending as a Civil suit No. OS 7/2022 filed by him is pending before the Munsiff’s Court, Neyyattinkara.  The said IA was dismissed by the District Commission.

3. Subsequently, I.A.No.44/2023 was filed by the opposite party before the District Commission challenging the maintainability of the consumer complaint.  According to him construction of the residential building for the complainant is for resale or for commercial purpose and hence the dispute between the complainant and the opposite party will not come within the purview of the Consumer Protection Act. It was also alleged that the consumer complaint was filed to counter blast the original suit before the Munsiff’s Court filed by the opposite party.

4.       The complainant filed objections to the petition contenting that it was filed without any bonafides to escape from his liability. The respondent is a consumer of the opposite party.  There was deficiency in service on his part. The complainant contended that the the original suit before the Munsiff’s Court and IA in this complaint are filed by the opposite party only to delay the proceedings in the complaint. He further argued that the issue raised in this IA is directly and substantially the issue in the earlier I.A.No.92/2022 which is already decided by the Commission and hence it is merged in the order in the said I.A.No.92/2022. 

5.       The District Commission considered the contentions of the respective parties and by a detailed order has found that the consumer complaint was maintainable. Accordingly, the District Commission dismissed the IA holding that the complaint pertains to a dispute between the parties which is coming within the purview of the Consumer Protection Act. and that the matter as to whether the building being constructed is for personal use or for resale can be decided only on the basis of evidence. The Revision Petition is filed against the said order dated 12.04.2023 in I.A.No.44/2023 in the complaint.

6.       The Revision Petitioner submitted that the dispute between him and the respondent is a purely commercial dispute.  The dispute arises out of an agreement relating to the construction of a building.  Therefore, he has already filed O.S.No.7/2022 before the Munsiff’s Court, Neyyatinkara and the matter is pending there.  The dispute and the issues raised in the complaint are being considered by the Civil Court.  The petitioner has sought for the recovery of money from the complainant herein.  The complainant had appeared in the said case and has thereafter filed this case as an afterthought, in order to defeat/delay the claims made by the petitioner. The subject matter of dispute pertains to breach of contract and hence will not come within the purview of the Consumer Protection Act. Since the Revision Petitioner had filed a suit before the Munsiff’s Court earlier, institution of the consumer complaint is not in order. If the present complaint is entertained by the District Commission there are chances of conflicting decisions being rendered. The Revision Petitioner contends that the District Commission is taking hasty steps to proceed with the complaint. On the above grounds, the Revision Petitioner sought interference with the order under revision

7.       We have heard the Revision Petitioner and also perused the records.  The Revision Petitioner is engaged in the construction of buildings.  The dispute relates to the construction work of a building which the Revision Petitioner had undertaken on the basis of an agreement with the respondent.   According to the Revision Petitioner amounts are due to him and he has filed a suit before the Munsiff’s Court for the recovery of amounts from the respondents herein. The Revision Petitioner has not stated the date of institution of the original suit. From the case numbers we observe that the original suit was filed in 2022 whereas the consumer complaint was filed in 2021. Hence the contention that the consumer complaint was filed to counterblast the original suit is not tenable.

          8.       From the factual scenario, it cannot be disputed that the respondent is a consumer and that the Revision Petitioner is a service provider.  The allegations in the consumer complaint are to the effect that there are deficiencies in the service of the Revision Petitioner.  Therefore, the respondent has the right to file the consumer complaint as done in this case.  In view of Section 100 of the Consumer Protection Act, 2019 the remedy before a Consumer Court is in addition to and not in derogation, of the provisions of any other law for the time being in force.  The respondent has the option to approach a Consumer Court with his complaint or to choose some other remedy for the redressal of his grievances.  He has admittedly chosen to file a consumer complaint, which cannot be found fault with.  It is not within the rights of the Revision Petitioner to insist that the remedy of the respondent has to be limited to filing a counter claim in the suit pending before the civil Court. It is the exclusive right of the respondent to choose the Forum and the Revision Petitioner cannot dictate where he should file his complaint. The order in I.A.No.44/2023 of the District Commission is as per the provisions of the Act and we do not find any reason to interfere with the proceedings of the District Commission. There is no merit in the arguments put forward by the Revision Petitioner and the District Commission has rightly rejected his contentions.

We do not find any material irregularity or jurisdictional error warranting interference of this Commission under its revisional jurisdiction. In view of the above, we find no grounds to admit this Revision Petition or to grant any of the reliefs sought for.

          This revision fails and is accordingly dismissed.  No costs.

SL