(BY SRI. CHANDRASHEKAR REDDY.K.P. ADVOCATE FOR R1;
R2, R5, R6 AND R7 ARE SERVED AND UNREPRESENTED;
AS PER ORDER DATED 21.08.2024, NO SEPARATE
NOTICE ISSUED TO R3 AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTIONOF INDIA PRAYING TO (A) ISSUE A WRIT, ORDER OR
DIRECTION IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
QUASHING THE ORDER DATED 29/04/2024 IN THE PROCEEDINGS IN
APPEAL NO.759/2024 BEFORE THE KARNATAKA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, BANGALORE (ADDITIONAL
BENCH) (ANNEXURE-A) AND ALLOW THE APPEAL IN APPEAL
NO.759/2024 FILED BY THE PETITIONER HEREIN, (B) PASS ANY
SUCH OTHER ORDERS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11.09.2025, COMING ON FOR 'PRONOUNCEMENT
OF ORDER' THIS DAY, JAYANT BANERJI J., MADE THE
FOLLOWING:
B.Pass any such other orders as may be necessary in
the interest of justice.
2. The petition, in brief, states that the first Respondent
decided to invest in the real estate project of the petitioner and
sought for a plot to be allotted in her name, in the petitioner's
project. Accordingly the petitioner and the first Respondent
executed a plot booking agreement dated 09.09.2015; that on
the date of the execution of the plot booking agreement, the
petitioner was the sole owner of various pieces of lands in
Malur Taluk, Kolar District, which were all a part of the Real
Estate Project of the petitioner. The plot booking agreement
was done so as to enable the first Respondent to book a plot
and subsequently execute a sale agreement with the petitioner,
to acquire rights of the plot; under Clause 3.1, the petitioner
was obligated to obtain a plan approval from the concerned
Planning Authority for the development project within a period
of 12 months from the date of the plot booking agreement. The
petitioner had obtained the plan approval from the planning
authority on 21.01.2016, which is well within the period of 12
months period under Clause 3.1. It is further stated that there
was no specific time period or deadline or timeframe for the
completion of the petitioner's project. However the petitioner
tried its best to complete the project within time. The first
Respondent engaged with the second Respondent to resell the
plot of the first Respondent to a potential future buyer or end-
user. It is stated that the first Respondent had transacted with
the petitioner with the sole intention of making commercial gain
and executed the plot booking agreement dated 09.09.2015 for
a commercial purpose and never for personal use or occupation
of the first Respondent.
3. On 13.02.2020, nearly 5 years from the execution
of the plot booking agreement dated 09.09.2015, the petitioner
received a letter from the first Respondent dated 11.02.2020
making several false accusations against the petitioner and the
second Respondent. The same was replied to by the petitioner
by means of a letter dated 06.03.2020. Thereafter on
27.11.2020 the first Respondent filed a Consumer Complaint
bearing CC No. 1026/2020 before the District Commission,
Bangalore under the Consumer Protection Act, 20191. It is
stated that the District Commission has erroneously allowed the
Consumer Complaint of the first Respondent and has
mechanically and without due application of mind, ordered that
all the opposite parties therein are jointly and severally liable to
allot 1200 square feet of land or in the alternative refund the
sum of Rs.12,60,000/- along with interest at the rate of 24%
Act
per annum from 28.08.2015 till realisation. Being aggrieved,
the petitioner preferred an appeal before the State Commission
bearing Appeal No.759/2024. It is stated that by means of the
impugned order, the State Commission without any application
of mind has dismissed the appeal in limine.
4. The contention of learned counsel for the petitioner
is that the petitioner would not be a 'service provider' for the
purposes of the Act, as the petitioner was not engaged in the
construction or sale of houses or flats. The Directors of the
petitioner company have been personally held liable which is
not in accordance with law. It is alleged that the District
Commission has exercised jurisdiction that it does not have.
Failure to consider the same by the State Commission is reason
enough to set aside the impugned order. It is stated that the
District Commission deals with cases that are heard summarily
and the civil remedies such as injunctions, declarations and
specific performance of agreements cannot ordinarily be
granted. It is stated that the petitioner is not a 'Consumer' for
the purposes of this Act and therefore it will not be amenable to
the provisions of this Act.
5. The learned counsel has referred to the definition of
"Product Seller" as appearing in Section 2(37) and 'Product
Service Provider' as appearing in Section 2(38) and has drawn
attention of the Court to the Plot Booking Agreement
(Annexure-C) to the writ petition dated 09.09.2015 to contend
that admittedly the Respondent No.1 had sought to purchase
the property in question for the sole purpose of re-selling it. It
is stated that, that being the case, the State Commission has
committed a grave error in law, in rejecting the appeal. It is
stated that, a bare reading of the aforesaid Plot Booking
Agreement reflected that, it was the pure case of sale and there
was no question of any service being provided by the
petitioner.
6. The learned counsel for the respondent on the other
hand has referred to the Plot Booking Agreement to contend
that, it is not a sale agreement. He has contended that in the
instant case, no agreement to sell has been made and
therefore, the petitioner can only be qualified as a 'service
provider'. The learned counsel has referred to the provisions of
Sub-section (9) of Section 2 of the Act, 2019 as well as
Sections 2(11) and Section 2(42) to contend that the
relationship between the complainant and the petitioner was
that of a "Consumer" and "Service Provider". The entire
amount had been paid and the Plot Booking Agreement was a
contract, that has to be viewed as a "Service" being rendered
by the petitioner and not " an agreement to sell".
7. In the order of the State Commission it appears that,
the phrase 'deficiency of service' has been elaborated and it
has been held that nature of transaction is covered in the
expression "service of any description". It was held that the
conduct of the petitioner/Appellant amounts to 'deficiency in
service' and accordingly the order passed by the District
Commission is just and proper. The appeal was accordingly
dismissed.
8. On consideration of the submissions advanced on
behalf of the petitioner and on perusal of the order passed by
the State Commission, it is evident that the petitioner would
seek to raise a substantial question of law. Sub-section (2) of
section 51 of the Act, 2019 reads as follows: -
"(2) save as otherwise expressly provided
under this Act or by any other law for the time
being in force, an appeal shall lie to the National
commission from any order passed in appeal by any
state commission, if the National commission is
satisfied that the case involves a substantial
question of law."
9. Moreover, a perusal of Clause (b) of sub-section (1)
of Section 58 of the Act, 2019 reflects that subject to the other
provisions of the Act, the National Commission shall have
jurisdiction to call for the records and pass appropriate orders
in any consumer dispute which is pending before or has been
decided by any State Commission where it appears to the
National commission that such State Commission has exercised
jurisdiction not vested in it by law, or has failed to exercise
jurisdiction so vested, or has acted in exercise of its jurisdiction
illegally or with material irregularity.
10. Therefore, it is evident that two alternate remedies
are available with the petitioner. One is the alternative remedy
of appeal, which is like a Second Appeal and the other is a
revision, both before the National Commission.
11. There are two judgments of the Supreme Court, one
in the case of Cicily Kallarackal v. Vehicle Factory2 and the
other in the case of Ibrat Faizan v. Omaxe Buildhome
Private Limited3, which have circumscribed the scope of
(2012) 8 SCC 524
AIR 2022 SC 2363
- 10 -
interference by the High Court under the provisions of article
226/227 of the Constitution of India. Having perused the
aforesaid judgments, we do not find this Writ Petition is fit for
interference.
12. In view of the aforesaid, we decline to interfere in the
matter on the ground of alternative remedy. This writ petition
is accordingly dismissed. Pending IAs, if any, stand disposed
of.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
KGR
