Transaction in respect of immovable property i.e., site or plot falls within the definition of Sec. 2 (42) of Consumer Protection Act, 2019: Karnataka State Consumer Disputes Redressal Commission

KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN BANGALORE First Appeal No. A 494 2021 Date of Filing : 05 Jul 2021 Arisen out of Order Dated 30 03 2021 in Case No. CC 255 2021 of District Bangalore 2nd 1. Annamma Jiney Jose W o Sunil Kumar sabu aged about 32 years Psychological counsellor R at No. 409 Chikkamaranahalli New BEL rd Mathikere Bangalore 1. M s Svamitva Infra Pvt Ltd No.110 2 1st floor Krishnappa Layout Lal Bagh Road Bangalore 560027. Reptd by Managing Director HON BLE MR. Ravishankar PRESIDING MEMBER HON BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER Dated : 27 Oct 2021 Final Order Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BANGALORE DATED THIS THE 27 DAY OF OCTOBER 2021 MR. RAVISHANKAR : JUDICIAL MEMBER MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER APPEAL NO. 494 2021 Mrs. Annamma Jiney Jose W o Mr. Sunil Kumar Sabu 1 Aged about 32 years Occ:Psychological Councilor Resident of No.409 New BEL Road Mathikere Bangalore 560 056 By Sri A.P. Sasidharan Nair M s Svamitva Infra Private Limited Floor No.110 2 1 Krishnappa Layout Lalbagh Road Bangalore 560 027 By the Managing Director MRS. SUNITA CHANNABASAPPA BAGEWADI MEMBER ORDER ON ADMISSION 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 2 Disputes Redressal Commission Bangalore Additional District Consumer 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.2of 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.2of 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 in14 SCC 773 Civil Appeal No.331 2007 dt. 26.09.2013 wherein it is held that 2 “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 593 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) (o)Transfer of Property Act 1882 S.54 and 55 Consumer Jurisdiction Scope 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.2of 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 i. ii. A manufacturer who is also a product seller or 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 a. 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 a. a person who ii. i. acts only in a financial capacity with respect to the sale of the product 3 ii. iii. is not a manufacturer wholesaler distributor retailer direct seller or an electronic service 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.2of Consumer Protection Act 2019 which reads a. “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 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 housing construction Hence in our opinion the transaction in respect of immovable property i.e. site or plot falls within the definition of Sec. 2of 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 in14 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 cannot grant any relief to the Consumer complainant. Hence in our opinion the complaint is maintainable u s 2of 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 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 Sd Sd MEMBER JUDICIAL MEMBER 4 HON BLE MR. Ravishankar HON BLE MRS. Smt.Sunita Channabasappa Bagewadi 5 

Summary: The Respondent being a Real Estate Company offered luxury apartments and plotted development project. Thus, also engaged in construction. So, when the appellant approached the District Commission, it dismissed the complaint as it found it unmaintainable as per Sec.2(42) of the Consumer Protection Act, 2019 and referred to Ganeshlal v. Shyam (2014) 14 SCC 773, and held that ‘immovable property’ did not come under the purview of ‘goods’. However, this was an erroneous judgement as observed by the State Commission in Annamma Jiney Jose v. M/s Svamitva Infra Pvt. Ltd, [A/494/2021] before Hon’ble Mr. Ravishankar (Presiding Member) and Hon’ble Mrs. Smt. Sunita Channabasappa Bagewadi (Member).  As admitted by the Respondent, it was clear that they were engaged in the construction. The State Commission referred Section 2(37) of the Act, of which (ii)(a) provides that, “a product seller is a service provider but does not include a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats”. Furthermore, Section 2(42) which defines service, also includes ‘housing construction’. Therefore, it was concluded that since the respondent’s development project consisted of a 40 feet road, 30 feet asphalted road with pedestrian walkways, included underground sewage drains and treatment plan, aimed at providing luxury lifestyle such as, a stylish entrance gate, beautiful garden, jogging track etc; it was clearly engaged in construction business and provided a housing construction service. Ultimately, the Commission observed that, “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 proceeded 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 cannot grant any relief to the Consumer/complainant. 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……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.”  Click Here to Read the Judgement