Sunita Channabasappa Bagewadi, Member
1. The appellant/complainant has preferred this appeal being aggrieved by the Order dt.30.03.2021 passed in CC.No.255/2021 on the file of 2nd Additional District Consumer Disputes Redressal Commission, Bangalore.
2. Perused the appeal memo, order passed by the District Commission and materials on record, we noticed that the District Commission has dismissed the complaint at the stage of admission as the complaint filed by the complainant is not maintainable and referred Sec.2 (42) of Consumer Protection Act, 2019 because the transaction in respect of immovable property i.e. site or plot does not fall within the definition of Sec.2 (42) of Consumer Protection Act, 2019. Moreover, the immovable property is also not comes under the purview of the goods and this reason is supported by the decision of Hon’ble Supreme Court of India in the case between Ganeshlal v/s Shyam reported in (2014) 14 SCC 773 Civil Appeal No.331/2007 dt. 26.09.2013 wherein it is held that;
“Consumer Protection Services Housing Scope of Sale of a plot of land simpliciter not involving a consumer transaction i.e., not amounting to “housing construction service” cannot lead to a complaint to the Consumer Forums. Thus, failure to handover possession of a plot of land in such a sale simpliciter cannot come within jurisdiction of Consumer Forums, in view definition of “complaint” and “deficiency” in Consumer Protection Act, 1986. However, “housing construction”, has been specifically covered under “service” by an amendment inserted by Act 50 of 1993 with effect from 18.06.1993. As far as housing construction by sale of flats by builders or societies is concerned, that would be on a different footing-where a sale of plot of land simpliciter is concerned, and if there is any complaint, same would not be covered under Consumer Protection Act. Consumer Protection Act, 1986 S-2(1)(c), (d), (o) (as amended by Act 50/1993 and (g) Transfer of Property Act, 1882 S.54 and 55 Consumer Jurisdiction Scope.
3. Perused the brochure produced by the complainant. The respondent themselves stated that the respondent is a Real Estate Company and they offer premium luxury apartments and plotted development project. They began their journey into wonderful world of building homes across cities in India and abroad. The project Sylvia City has world class infrastructure like 40 feet road and 30 feet asphalted road with pedestrian walkways lined with shade giving trees, underground sewage connection and storm water drains with sewage treatment plant. Luxury life style such as stylish entrance gate, beautiful landscaped garden, 3 years free maintenance of the site, jogging track with sit-out etc., which clearly shows that Svamitva Group is Real Estate Company and their project “Sylvia City” is construction linked plan. The respondent is engaged in construction business and Sec.2 (37) of Consumer Protection Act, 2019 reads
“Product seller”, in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes –
i. A manufacturer who is also a product seller; or
ii. A service provider,
but does not include –
a. a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats;
b. a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction;
c. a person who –
i. acts only in a financial capacity with respect to the sale of the product;
ii. is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic service providers;
iii. leases a product, without having a reasonable opportunity to inspect and discover defects in the product, under a lease arrangement in which the selection, possession, maintenance and operation of the product are controlled by a person other than the lessor;
Moreover, as per Sec.2 (42) of Consumer Protection Act, 2019 ‘service’ which reads;
d. “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or 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;
4. Hence in our opinion, the transaction in respect of immovable property i.e. site or plot falls within the definition of Sec. 2 (42) of Consumer Protection Act, 2019 because in the present case, a seller of immovable property, is engaged in the sale of constructed house or in the construction of homes or flats. The District Commission without considering these facts dismissed the complaint as not maintainable and supported the reasons with decision of Hon’ble Supreme Court of India in the matter between Ganeshlal v/s Shyam reported in (2014) 14 SCC 773 Civil Appeal No.331/2007 dt. 26.09.2013. In Ganeshlal v/s Shyam case, the District Commission allowed the complaint and directed the appellant to deliver the possession of the concerned plot. The State Commission and Hon’ble National Commission dismissed the appeal when the case was proceed at Hon’ble Supreme Court of India, the advocate for appellant submitted that the appellant has executed the Sale Deed and the concerned plot of land has been handed over to the respondent. Hence, the Hon’ble Supreme Court of India cann
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ot grant any relief to the Consumer/complainant. 5. Hence, in our opinion, the complaint is maintainable u/s 2 (42) of Consumer Protection Act, 2019 and the reasons of District Commission supported by the decision of the Hon’ble Supreme Court which is different to the present case. Hence, the following; ORDER The appeal is allowed. The impugned order passed by the District Commission, Bangalore is hereby set aside and matter is remanded to the District Commission directing them to hear the case on merits and to dispose the same expeditiously to meet the ends of justice. Forward free copies to both parties.