Chilukuri Adarsh v. Ess Ess Vee Constructions, National Consumer Disputes Redressal Commission, Judgment, Law, casemine.com

Factual and Procedural Background

The complainant, Chilukuri Adarsh, entered into a construction agreement with M/s Ess Ess Vee Constructions for the construction of two showrooms at a contract price of Rs. 37,02,000, with possession to be delivered within 18 months. The complainant alleged that he paid Rs. 45,50,000, which was an excess of Rs. 7,98,000 over the agreed price. Despite the excess payment, the opposite party failed to deliver possession within the stipulated period. Further, even after completion, the premises were not handed over to the complainant but were leased to a third party. The opposite party allegedly instigated the third party to file a civil suit for injunction against the complainant, which was dismissed. Ultimately, possession was delivered on 26th January 2011, after a delay exceeding 40 months. The complainant contended that the delay and refusal to refund the excess amount constituted gross deficiency in service, causing financial loss and mental agony, and sought relief before the Consumer Disputes Redressal Commission.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jag Mohan Chhabra & Anr. v. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)]	Complaint relating to commercial property construction is not maintainable under the Consumer Protection Act, 1986.	The Commission relied on this precedent to hold that since the construction related to commercial showrooms, the complainant did not qualify as a 'consumer' under the Act, leading to dismissal of the complaint.
Laxmi Engineering Works v. P.S.G. Industrial Institute [II (1995) CPJ 1 (SC)]	Principle allowing exclusion of time spent in prosecuting a complaint before consumer fora when approaching civil courts subsequently.	The court advised the complainant to utilize this ruling to exclude the period spent before this Commission when seeking remedy in the civil court.

Precedent

Rule or Principle Cited For

Application by the Court

Jag Mohan Chhabra & Anr. v. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)]

Complaint relating to commercial property construction is not maintainable under the Consumer Protection Act, 1986.

The Commission relied on this precedent to hold that since the construction related to commercial showrooms, the complainant did not qualify as a 'consumer' under the Act, leading to dismissal of the complaint.

Laxmi Engineering Works v. P.S.G. Industrial Institute [II (1995) CPJ 1 (SC)]

Principle allowing exclusion of time spent in prosecuting a complaint before consumer fora when approaching civil courts subsequently.

The court advised the complainant to utilize this ruling to exclude the period spent before this Commission when seeking remedy in the civil court.

Court's Reasoning and Analysis

The court analyzed the nature of the agreement and concluded that the construction of two showrooms was for a commercial purpose. Under Section 2(1)(d) of the Consumer Protection Act, 1986, a 'consumer' does not include a person who acquires goods or services for commercial use. The Commission has consistently held that booking multiple residential units may be deemed commercial; similarly, commercial premises fall outside the purview of consumer protection. The court relied on the precedent in Jag Mohan Chhabra & Anr. v. DLF Universal Ltd. where a similar complaint was dismissed for non-maintainability. The Supreme Court upheld that precedent. Therefore, the complaint was dismissed as not maintainable before the consumer forum. The court preserved the complainant's right to seek remedy in an appropriate civil court and recommended reliance on the Supreme Court ruling in Laxmi Engineering Works to exclude the time spent in this forum.

Holding and Implications

DISMISSED IN LIMINE

The complaint was dismissed at the threshold on the basis that the subject matter involved commercial showrooms, and thus the complainant did not qualify as a 'consumer' under the Consumer Protection Act, 1986. The direct consequence is that the complainant cannot seek relief under the consumer forum for this dispute. No new legal precedent was established. The complainant retains the right to pursue civil remedies in the appropriate court, with guidance to exclude the time spent before the consumer commission as per existing Supreme Court authority.

Chilukuri Adarsh v. Ess Ess Vee Constructions

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 111 OF 2012

1. CHILUKURI ADARSH

S/o. Sri. Ch. Satyanarayana Murthy, D-1, Brundavan Towers, Balaji Nagar,

Visakhapatnam - 530 003.

A.P. ...........Complainant(s)

Versus

1. M/S. ESS ESS VEE CONSTRUCTIONS Rep. by its Managing Partner, Sri Lagadapati Kiran Kumar, S/o. Sri Dasaradha Ramayya,

10-1-38/B, IVth Floor, Vinayagar Paradise, Waltair Uplands, Visakhapatnam - 530 003, A.P. ...........Opp.Party(s)

BEFORE:

HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HON'BLE MR. S.K. NAIK, MEMBER

For the Complainant : Mr. A. Subba Rao, Advocate For the Opp.Party : NEMO

Dated : 02 Jul 2012

ORDER

PER S.K. NAIK, MEMBER

1. Shri A. Subba Rao, Advocate, learned counsel appearing for the complainant has been heard.

2. The complainant entered into a construction agreement with M/s Ess Ess Vee Construction, the opposite party, for getting two showrooms constructed at a consideration of Rs.37,02,000/- purportedly to be handed over within 18 months from the date of the agreement. It is alleged that as against the said amount of Rs.37,02,000/-, he had made a total payment of Rs.45,50,000/-, thereby the opposite party had received an excess amount of Rs.7,98,000/-. Even then they failed to deliver the possession of the said showrooms within the agreed period and further that they refused to refund the excess amount received from the complainant. It has further been

contended that even after the construction was complete, the premises were not handed over to the complainant and on the contrary leased out to a third party as a counterblast to the demand of the complainant for the refund of the excess amount paid by him. It has further been contended that the opposite party was behind the third party/tenant filing a civil suit seeking injunction against the petitioner without any basis, which, of course, was dismissed by the learned Civil Judge. It is, however, admitted that finally the premises were handed over to the complainant on the 26^thof January, 2011 after a delay of more than 40 months. Learned counsel contends that non-refund of the excess amount and the inordinate delay in handing over possession of the showrooms amounts to gross deficiency in service, which has resulted in huge financial loss, mental agony etc. and, therefore, it is a fit case for being admitted.

3. Arguments of the learned counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a consumer fora like ours as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a 'consumer' as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purpose. This Commission in the case of Jag Mohan Chhabra & Anr. V. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)] in a somewhat similar case had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to

the complainant to approach Civil Court. The said order has since been upheld by the Hon'ble Supreme Court as Civil Appeal No.6030- 5031 of 2008 filed before the Supreme Court stands dismissed vide the Apex Court's order dated 29.09.2008. In the facts of the present case, we maintain the same view and while dismissing the complaint as not maintainable reserve the right of the complainant to approach the appropriate Civil Court to seek his remedy, if so advised. He may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute [II (1995) CPJ 1 (SC)] to seek exclusion of the time spent in prosecuting this complaint before this Commission.

4. The complaint, accordingly, is dismissed in limine.

......................J

R.C. JAIN

PRESIDING MEMBER

......................

S.K. NAIK

MEMBER

Consumer Complaint No. 111 of 2012

Chilukuri Adarsh v. Ess Ess Vee Constructions

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chilukuri Adarsh v. Ess Ess Vee Constructions

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