D.S.KRISHNASAMY vs RYAN PROPERTIES LTD.

THIS appeal is directed against the order dated the 7th day of August, 1997 in S.R. No. 1241/97 in O.P. No. 409/97 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the complainant while the respondent is the opposite party. The opposite party is one M/s. Ryan Properties Limited, Adyar, Chennai-20. They are developers of property at Kodaikkanal. They advertised through their brochure containing details of the scheme promoting Ryan Coffee Estate at Kodaikkanal and in the scheme the allottee should pay the full amount by down payment or by instalments. The complainant was also assured of coffee plantations being developed in the said property alongwith teak, orange and jack trees.

The complainant, it is said, entered into an agreement with the opposite party on 1.7.1995 and paid a sum of Rs. 28,340/- for purchase of Ryan Coffee Estate. The opposite party promised to register the land on payment of instalments and to plant, grow and maintain coffee plants, teak, orange and jack trees.

THE complainant paid up the entire balance amount of Rs. 85,020/- in 12 instalments starting from 13.9.1995 to 14.2.1996. Even after the payment of the entire instalments the opposite party did not execute the sale deed. Thereafter there were lost of correspondences between the parties. The complainant wrote to the opposite party to refund the complainant the original sum alongwith interest. Even this request for refund was not complied with by the opposite party. The opposite party did not develop the promised coffee estate.

IN such circumstances, the complainant was forced to launch a complaint before the Forum below praying for the direction to the opposite party to repay a sum of Rs. 1,14,425/- with interest @ 24% p.a. and to pay compensation of Rs. 1,00,000/- and costs. The Forum below without even issuing notice to the opposite party dismissed the complaint in lemini as not maintainable, giving rise to the present action by the complainant. Arguments of learned Counsel Mr. N.L. Rajah, appearing for the appellant/complainant and learned Counsel Mr. M. Mohammed Ibrahim Ali, representing the respondent/opposite party were heard.

EVEN at the outset, we may point out that we are not concurring with the view of the Forum below when it said that it is a matter of civil dispute and the complainant on the facts and in the circumstances of the case has to file a suit for specific performance of the agreement for sale in a competent Forum. While dismissing the complaint as observing so, we rather feel that the Forum below committed a grievous error in not properly understanding the signal significance of the definition of service as adumbrated in Section 2(1)(o) of the Consumer Protection Act, 1986. The said definition reads as under : "(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both (housing construction) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

The said definition consists of two parts. The first part defines service by way of a "means" definition in an exhaustive fashion by stating service means service of any description which is made available to potential users (Emphasis supplied). The second part is an inclusive definition as relates to the provision of facilities in connection with banking, financing, insurance, etc., ultimately followed by an exclusion clause to the effect that rendering of any service free of charge or under a contract of personal service are excluded from service.

FROM the nature of the averments made in the complaint, it is rather very well crystal clear that the complainant hired or availed of the services of the opposite party in developing a plot at Kodaikkanal for consideration. The service to be performed by the opposite party is to develop the plot by planting teak, jack and other trees and once the amount of consideration is paid by the complainant, the opposite party has to execute the sale deed. The averments in the complaint would categorically point out neither the plot has been developed as promised by the opposite party nor there was any execution of the sale deed even after the alleged receipt of the entirety of the consideration stated to have been paid by the complainant to the opposite party. If what is stated by way of averments in the complaint are true, there is prima facie case of deficiency in service on the part of the opposite party for a further enquiry into the matter. For the reasons as above, the order of the Forum below deserves to be set aside and the same is set aside. The Forum below is directed to restore the complaint to file, issue notice to the opposite parties and dispose of the matter in accordance with law.

This appeal is thus disposed of. We, however, make no order as to costs on the facts and in the circumstances of the case. Appeal disposed of.