KALLANANDY PANCHU @ KAUSU vs V.C.ABDUL RAZAK

THE opposite party in O.P. No. 442/1997 on the file of the Consumer Disputes Redressal Forum, Kannur is the appellant.

THE complainant''s case before the District Forum was that the complainants entered into an agreement with the opposite party for the purchase of 62 cents of land for a consideration of Rs. 5,050/- per cent; that agreement was on 12.7.1996. As per the said agreement the complainant paid Rs. 15,000/- as advance stipulating, the complainant would give the balance consideration within 5 months and get the sale deed executed at his costs. Before the execution of the sale deed the opposite party has to hand over the original sale deed in his favour, and measure out the property and convince the complainant as to the extent of the property. THE complainants alleged that they were willing to perform their part under the contract by paying total consideration, but the opposite party did not perform his part under the contract by handing over the title deed or measure out property and satisfy as to the extent of the property, thus the opposite party committed breach of the contract which according to the complainant would constitute deficiency in service and, therefore, the complainant claimed, himself is entitled to the return of the advance paid along with compensation. THE opposite parties took up the contention that this is not a consumer dispute, neither is the complainant a consumer. THErefore, they maintained that the complaint is not maintainable and is liable to be dismissed. THE complainant produced Exts. Al to A4 and got himself examined as P.W. 1. THE District Forum made a direction to the opposite parties to refund the advance amount with interest @ 12%, compensation of Rs. 5,000/- and costs, it is the said direction that is under challenge in this appeal. 3 of by the opposite party, whether the complainant could be held to be a consumer within the meaning of Section 2(1)(d)(2) of the Consumer Protection Act, 1986 (for short the Act) is the question to be considered. Learned Counsel for the appellant relied on the decision of the National Commission in Apple Merchants Association (Regd.) v. Delhi Development Authority & Ors., III (1996) CPJ 2 (NC) =1996 (4) CTJ 869 in support of his case. It is held therein, there being neither assailing of service for consideration nor sale of goods the complainant cannot be a consumer. On the other hand the learned Counsel for the respondent relied on the decision of the Uttar Pradesh State Commission reported in Meerut Development Authority v. Shakuntala Devi, I (2000) CPJ 420, in support of his argument that in the context of the definition of service under Section 2(1)(o) of the Act, as the said definition is all comprehensive, this particular transaction could be treated as one by which he sought to avail the service of the opposite party for consideration and thus the same is a consumer dispute. 4. Having regard to the nature of the contest it is relevant to see the scope of Section 2(1)(d) Sub-clauses (i) and (ii). THE said definition clause takes into its fold two types of transactions, one is where a person buys goods for consideration which was paid or promises to pay or partly paid or partly promised, and the other is where the person hires or avails any service for consideration. Unless a particular person answers the prescription of the said definition of ''consumer'' a complaint at his instance cannot be entertained. Having regard to the admitted case, as the agreement to sell being with respect to immovable property, Section 2(1)(d)(i) of the Act will have no application for the same deals with goods only, and immovable property cannot be treated as goods. THE Sub-clause (ii) of Section 2(1)(d) as noticed concerns availing of service for consideration, service is defined under Section 2(1)(o) of the Act; the definition is comprehensive so as to include service of any description made available even to-potential users, and service in connection with banking, financing, insurance, transport and house construction etc. If a particular transaction, though is with respect to immovable property, if it concerns ''housing construction'' the same would attract the definition of service under Section 2(1)(d) of the Act. Consequently when the said service is availed for consideration the said person will answer the definition of consumer under Section 2(1)(d)(ii) of the Act. THErefore, the decision in Meerut Development Authority''s (supra), cannot help the respondent; for a reading of the decision shows that the same concerns construction of flat. Para 2 states that the Meerut Development Authority floated a residential scheme in which the complainant registered himself on payment of registration fee of Rs. 10,000/-. THE project was not implemented and, therefore, he wanted redressal. Evidently, he availed service for consideration of building that being the position he was a consumer, here the terms and conditions of the contract as is revealed from the admitted case of the parties is purely an agreement to sell immovable property under which an advance was paid. THE allegation of breach of contract is, whereas the complainant was ready and willing to perform his part of contract the opposite party failed to proform his part of the contract. On the said allegation there could be a cause of action for specific enforcement of the contract or return of the advance amount paid. But the same does not involve either sale of goods or availing of service for consideration. That being the position the complainant cannot be a consumer and the dispute cannot be treated as a consumer dispute. When such is the position the complaint ought have been dismissed as not maintainable. In that view the appeal has to be allowed, and the complaint has to be dismissed. 5. In the result, the appeal is allowed; but the order will not in any way affect the right of the complainant/respondent to approach the appropriate Civil Court for relief. In this appeal there will be no order as to costs. Appeal allowed.