BINDU RAJAKRISHNAN-/ vs KANCHANA-/

THE order dated 24.3.1997 in SR. No. 114/97 on the file of the District Consumer Disputes Redressal Forum, Coimbatore, dismissing the complaint in limini ''holding that the complainant cannot at all be construed as a consumer qua the opposite party, is challenged in this action.

THE short facts necessary for appreciating the crux of the issue arising for consideration in this action may be related. The complainant entered into a sale transaction with the opposite party, an estate dealer of plot No. 57 located in a specified place for an agreed amount. The opposite party, if appears, demanded amount in excess of the agreed amount and the complainant it appears, paid the excess amount as demanded by the opposite party. The complainant would further state that despite paying the excess amount the opposite party did not execute the sale deed in respect of the site No. 57 but he has executed a sale deed in respect of Site No. 69. This act of the opposite party, he would say, is deficiency in service on the part of the opposite party. For such deficiency, he instituted a complaint before the Forum below for certain reliefs as prayed for in the complaint.

The Forum below passed an order as already indicated.

AGGRIEVED by such an order, the appellant/complainant resorted to the present action by engaging a Counsel of his choice, namely learned Counsel Mr. N. Ishtiaq Ahmed. On service of process, the respondent/ opposite party also entered appearance through a Counsel of their choice, namely learned Counsel Mr. N. Jawahar and A. Anbarasu.

WHEN this matter came up for hearing before us today, learned Counsel representing the respondent/opposite party were absent and no representation was made on their behalf. The fact that the said learned Counsel were absent and no representation is made on their behalf does not mean that we cannot dispose of the appeal on merits, of course, after hearing arguments of learned Counsel Mr. N. Ishtiaq Ahmed, appearing for the appellant/ complainant and on perusal of the materials placed on record. That is exactly what we have done in this case. Even at the outset, we may state that this appeal has no merits. A cursory perusal of the averments made in the complaint and other connected documents reveal in no uncertain terms that the transaction between the complainant and the opposite party, estate dealer is simplicitor sale of an immovable property in plot No. 57 in a particular area for an agreed price. It is not as if the complainant engaged the services of the opposite party for locating a site for consideration for the purpose of purchase. The sordid fact is that the opposite party estate broker is the owner of the plot and he agreed to sell the same for a specified price to the complainant purchaser. If there is a breach of contract in respect of the said transaction, the complainant has no remedy at all before the Forum constituted under the Act and he has to resort to seek remedy before a competent Civil Forum. The Forum below rendered only such a finding on the facts and in the circumstances of the case. Such a finding cannot at all be stated to be not sustainable in law. Learned Counsel appearing for the appellant/complainant drew our attention to ther decision in the case of Sunder Kashyap v. N. Path, II (1995) CPJ 223 (NC)=1986-96 National Commission and Supreme Court on Consumer Cases 2678 (NS), in support of his case. Even at the outset, we may state that the decision rendered by the National Commission in the said case, on the facts and in the circumstances of the case, is not at all applicable to the factual matrix of the instant case.

IN that case, "the complainant alleged, inter alia, that he approached the appellant who is a property dealer, for locating a potential seller and for the purchase of a flat in Vasant Kunj. IN due course, a flat bearing No. 4314, First Floor, Sector-9, Pockets 5 and 6, Vasant Kunj in New Delhi was shown to the complainant as available for sale. The price settled was Rs. 10.25 lakhs. The complainant paid to the appellant an advance of Rs. 90,000/- against receipt dated 30th April, 1992 for payment to the owner and the balance was to be paid within 30 days on the payment of which the vacant possession of the flat was to be handed over. The appellant, it is averred, had offered has services for consideration for locating and then arranging the purchase of the flat at Vasant Kunj, but, the appellant failed to render and perform the services as promised, as a result the complaint was filed as opposite party neither completed the deal nor refunded the amount".

IT is thus crystal clear that the services of the appellant property dealer in that case had been engaged for locating a flat in a particular area for consideration. Therefore, the National Commission in that case held that the complainant must have to be construed as a consumer qua the opposite party/appellant, property dealer. That is not the situation in the case on hand, as already indicated. The appeal, as such, deserves to be dismissed. In fine, the appeal fails and the same is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. . Appeal dismissed.