PANKAJ JAISWAL vs DEENBANDHU SONKAR & 2 ORS.

This revision is directed against the order of the Chhattishgarh State Consumer Disputes Redressal Commission, Raipur (in short, "the State Commission") dated 7.3.2015 in FA/14/460.

The petitioner filed a consumer complaint before the District Forum, Raipur alleging deficiency in service on the part of the respondent/opposite party in respect of an agreement of sale for purchase of land entered into between the parties. Complaint was resisted.

District Forum on consideration of pleadings of the parties allowed the complaint and directed the respondent/opposite party as under: -

"On the basis of above observation we allow the complaint filed by complainant u/s 12 of C.P. Act and it is directed to the OPs that within one month from the date of order: -

A. The OPs will pay the amount of Rs.50,000/- alongwth interest @ 9% from 3.5.2011.

B. The OPs will also pay Rs.1,00,000/- for mental harassment to the complainant.

C. The OPs will also pay the cost of Rs.2000/- to the complainant."

Being aggrieved of the order of the District Forum the respondent/opposite party approached the State Commission in appeal. The State Commission vide impugned order took the view that the agreement arrived at between the parties had no element of service promised by the opposite party and, therefore, the remedy of the petitioner was to file a suit for specific performance of the agreement before a civil court of competent jurisdiction. The State Commission thus allowed the appeal, set aside the order of the District Forum and dismissed the complaint.

Being aggrieved of the order of the State Commission the petitioner has filed the instant revision petition. Learned counsel for the petitioner has contended that the impugned order of the State Commission is not sustainable for the reason that the State Commission has overlooked clause 7 of the agreement which reads as under: -

"This sale agreement is executed between the parties on following terms and conditions:

That the above mentioned property is of the ownership of the seller and in the possession regarding which there is no dispute and seller is competent to sale the said property.

That the seller has made the deal with the buyer for the said property at the rate of Rs.1,05,000/- for 51 dismil and the purchaser is competent to purchase the said land.

That the seller as the deal is giving the advance amount of Rs.5,00,000/- to the seller and seller hereby accept the amount of Rs.5,00,000/- and have given his consent.

That the purchaser as per the agreement will pay the balance amount at the time of registry before the Registrar and registration of the property will be done within 6 months compulsory.

That the seller for the registration of the said property in revenue record will take the permission will give to the purchaser and purchaser will register the land from the registry office.

That the seller and his legal representative will not take any objection regarding the sale of the said property in future and if any objection is raised then it will be illegal and void.

That if by govt. order before the registry period if the said land is taken by govt. and for any govt. work the said land is taken then the contract will become void and purchaser will be entitled for the refund of the advance amount without any interest.

That if the seller makes any obstructions in the registry of the property then the buyer will have the right that he can register the property from the court.

Therefore, this sale agreement is executed today on 3.5.2011 between the parties with their full satisfaction and without any fear before the witnesses and signed so that if may be useful for the time."

It is contended that as per clause 7 of the aforesaid agreement it was agreed between the parties that if before registration of sale deed the subject land was taken over by the Government the contract would become void and the purchaser will be entitled to refund of advance money paid to the respondent/opposite party without any interest.

We do not find merit in the contention of learned counsel for the petitioner. In order to invoke the jurisdiction of the Consumer Fora the complainant is required to show that he falls within the definition of "Consumer" as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 which reads as under: -

"(d) "consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom-ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ''hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes ;

Explanation .- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment"

On reading of the above, it is clear that subject to the exception carved out in the definition itself, consumer is a person who buys any goods or hires or avails of service of the opposite party for consideration. In the instant case on reading of the above-noted sale agreement it is clear that no element of service was promised by the opposite party. Therefore, the petitioner does not fall within the definition of consumer. As such the State Commission was right in allowing the appeal and dismissing the complaint with the observation that the remedy of the petitioner is to approach the civil court of competent jurisdiction for specific performance of the agreement.

In view of the discussion above, we do not find merit in the revision petition. Revision petition is accordingly dismissed with the observation that the petitioner, if he so desires, shall be at liberty to approach the forum of competent jurisdiction to seek redressal of his grievance.