G.SAMPATH vs V.K.LALCO PVT.LTD

IN this complaint, under Section 12 r/w Section 17 of the Consumer Protection Act, 1986, the complainants (7 in number) have sought compensation in a sum of Rs. 9,85,000/- from the the builder.

IT is the case of the complainants that they had purchased apartments in VARSHA Apartments from the Opposite Party for their residence. The complainants averred that though they had made payment of full consideration amount to the Opposite Party, but the Opposite Party failed to obtain the legal transfer of the land from the original owners and the Opposite Party who has agreed to promote a Private Limited Co. for the maintenance and upkeep of the apartments, failed to do so even after 8 years and in spite of repeated demands made by the complainants. The complainants further averred that the Opposite Party had received a sum of Rs. 50,000/- from each of them for transfer fee charges, but failed to transfer the lands in their favour. The complainants further averred that the Opposite Party failed to constitute the company as promised and provide permanent electricity connections. The complainants nextly averred that as a result of negligence on the part of the Opposite Party in having neglected to submit papers to the Bangalore City Corpn., the complainants apprehended a demand for payment of a huge amount of tax by the Bangalore City Corporation towards assessment of the property tax. The complainants nextly averred that the Opposite Party committed breach of the agreement and failed to discharge the services as agreed upon. The complainants, on the basis of these averments, sought refund of a sum of Rs. 5 lakhs collected by the Opposite Party as transfer fee from the prospective purchasers, a sum of Rs. 75,000/- ad hoc electricity charges, Rs. 2 lakhs for failure to provide permanent electricity and a sum of Rs. 1,10,000/- towards interest on the sum of Rs. 8,75,000/-, in all the complainants claimed a sum of Rs. 9,85,000/- from the Opposite Party.

The Opposite Party filed its version and averred that the dispute raised by the complainants was not a ''consumer'' dispute and the agreement between the parties contained a clause requiring any dispute between them to be referred to the Arbitrator and so the complaint was untenable.

THE Opposite Party further averred that the complainants are the second owners having bought the apartments from the original owners. THE complainant seven have not paid maintenance charges even after availing all facilities provided to the apartment owners. THE Opposite Party, on the basis of these averments, sought the complaint to be dismissed. During enquiry, the complainants filed the affidavit of Complainant No. 1 and got Exhibits C-1 to C-10 marked in evidence. We heard the learned Counsel for the parties; perused the pleadings of the parties and material placed on record.

EX. C-1 is an agreement between the parties. The Clause 35 of the said agreement reads as under: "35. If during the continuance of this agreement or at any time afterwards any difference shall arise between the parties, in regard to the construction of any of the articles herein contained or to any act or thing relating to this agreement such difference shall be forthwith referred to two Arbitrators, one to be appointed by each party in difference or to an Umpire to be chosen by the Arbitrators before entering on the consideration of the matters referred to them and every such reference shall be deemed to be an arbitration in accordance with and subject to the provisions of the Indian Arbitration Act, 1940, or any statutory modification or re-enactment thereof for the time being in force. Such arbitration shall be conducted in Bombay."

This would go to show that any dispute or differences arising between the parties has to be referred to the Arbitrators for decision. The learned Counsel for the Opposite Party on 4.9.93 filed a memo, which reads as under: "The Opposite Party above-named submits that as per Clause 35 of the Articles of Agreement entered into between the parties to this complaint, the matters in dispute have been referred to arbitration. Arbitrators have already been appointed and proceedings are in progress. It is, therefore, prayed that in order to avoid duplication of proceedings this complaint be kept in abeyance till the arbitration proceedings are completed and award made."

This would go to show that as per Clause 35 of the agreement between the parties, that is, Ex. C-1, the matters in dispute between the parties have been referred to the arbitration.

HAVING regard to this fact, we are of the opinion that this complaint becomes untenable.

THE main grievance of the complainant is that the Opposite Party who had agreed to promote a Private Limited Co. for the maintenance and up-keep of apartments, has failed to do so even after 8 years and the second grievance is that the Opposite Party even after receipt of the transfer fee from them has failed to obtain the legal transfer of the land from the original owners. THE complainants at page 5 of their complaint, have averred thus: ".........That as a result of the deficiency of service of the Opposite Party, the complainants are totally insecured as to the huge amount of tax that they may be called upon to pay over the period as a result of the negligence on the part of the Opposite Party in having neglected to submit the papers to the Bangalore City Corporation for assessment of property tax. THE Opposite Party has committed breach of the agreement and has thereby failed to discharge the service as agreed at the time of the agreement."

The averments would go to show that it was a breach of contract. Such a dispute, in our opinion, does not constitute a ''consumer'' dispute as envisaged by the provisions of the Consumer Protection Act, 1986. It was purely in the realm of breach of contract. The complainants should have pursued their remedy by way of instituting civil suit and no relief could be granted by the Consumer Redressal Forums.

Having regard to these facts as well, this complaint is untenable. ORDER In the result, therefore, this complaint fails and it is dismissed. The parties are directed to bear and pay their own costs in this proceeding. Complaint dismissed.