HAR SARUP GUPTA vs Kailash Nath and Associates

BRIEFLY, the facts are that the complainants are the coowners of Plot No. J-l/163 measuring approx. 1276 sq. Yards New Delhi - The opposite party (O.P.) entered into a contract with them to construct flats on that plot. It was agreed between them that the complainants would be entitled to 36% and the O.P. to 64% of the built up area. It is alleged by the complainants that the O.P. has not built the flats in terms of the contract. Consequently, they have prayed that the O.P. be directed to compensate them to the tune of Rs. 17 lakhs.

THE complaint has been contested by the O.P. THEy inter-alia pleaded that the complainants are not covered by the provisions of the Consumer Protection Act as the complainants are not consumers as defined in the Act. Consequently, the Commission has no jurisdiction to entertain the complaint. The main question that arises for determination is, whether the complainants are covered by the provisions of the Consumer Protection Act. Mr. Chaufla, learned Counsel for the complainant has vehemently argued that the O.P. entered into service contract with the complainants for construction of the flats and the latter agreed to pay the consideration in terms of land and therefore, the O.P. was to render service to them. To fortify his argument he has referred to Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC).On the other hand the learned Counsel for the O.P. has submitted that the agreement between the parties was a partnership agreement and the Commission has got no jurisdiction to entertain such matters. In support of his contention he has placed reliance on C. Narasimha Rao v. K.P. Neelakundan & Another, I (1994) CPJ 160 (NC).

We have considered the arguments of the Counsel. It is not necessary to enter into a detailed discussion as the matter is covered by a decision of the National Commission in C. Narshimha Rao''s case. In that case in similar circumstances, it was held, that the FORA under the Consumer Protection Act had no jurisdiction to entertain such complaints. Mr. Chaufla has referred to Lucknow Development Authority''s case (supra). The facts of that case are different. In that case the flats were constructed on its own land and sold by the Lucknow Development Authority to the prospective buyers. Therefore, the ratio in that case will not apply to the facts of the present case. Consequently, the complaint is dimissed as not covered by the provisions of Consumer Protection Act. Subject to the observations that the complainants may file a civil suit, if so advised. No order as to costs. Complaint dismissed.