S.A. Makhija, Member:
1. This complaint is filed under the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act or C.P. A. for the sake of brevity).
2. The short facts of the complainants case are that the complainants had their own plot No. 70-A at Bhavnagar, details of which are given in para-2 of the complaint. The complainants decided to float a scheme of flats on their plots and as such they had given contract of those flats for construction and building them to one Kamal Trivedi who had left the work half way. The opponent thereafter was hired to complete the remaining work of the scheme. It is the say of the complainants that there were disputes between the parties in regard to payments to the opponent therefore he had filed a Special Civil Suit No. 70 of 2004 in the Court of Civil Judge (S.D.) which came to be withdrawn unconditionally by the opponent as there was compromise between the parties. As per agreement dated 4.2.2003 the opponent was required to complete the work within 12 months as per condition No. 9 of the agreement. The opponent failed to complete the work of the scheme as stated by them. On this set of facts the complainants have demanded Rs. 25,61,609.71 as the amount for carrying out the alleged incomplete work, Rs. 1,00,000 for mental stress and Rs. 50,000 as cost.
3. The opponents reply dated 17.7.2006 is at Exh.9 wherein the opponent has inter alia stated that the complaint is not maintainable. This Commission has no jurisdiction to try this complaint. The complaint is time barred. The complainants have suppressed the material facts and as such they have not come with clean hands. The opponent relied upon the agreement which does not exist. The complainant No. 1 himself is a builder and he along with his other family members had floated a scheme for construction of 16 flats on his ancestral property for commercial purpose. The complainants had entered into construction agreement dated 4.2.2003 with the opponent. The agreement was signed by the complainant No. 1 as power of attorney holder of remaining complainants. It was for consideration of Rs. 36,63,000. The condition No. 9 of the said agreement provided that the builder i.e. complainants are free to sell the flat to any person at any price. The complainants under the agreement are builders and the opponent is mere contractor engaged to complete the remaining work left out by earlier contractor. The complainants purpose of floating the scheme was to earn profits. The complainants therefore is not âconsumer as defined under Section 2(d) of the Act. The complainant No. 4 has cancelled the power of attorney of first complainant because of certain dispute in regard to sharing of the profits, etc. The complainants are not using any of the 16 flats personally. Out of those flats flat No. 102 has been sold to one Bharat Sinh Jamsinh Jadeja for which a civil suit No. 39 of 2004 is pending and interim injunction has been granted by the Civil Court. The complaint is not maintainable for that flat. The complainant No. 4 has stated his address at Flat No. 304 but the details in regard to individual ownership of the complainants qua the flats are not given. The complainants have not paid the opponent as per the agreement. The opponent has completed 80% of the work. An amount of Rs. 9,76,378 has not been paid. The cheque given by the complainants have also bounced. The report of Pankaj Sojitra is false and one sided to favour the complainants, who are his clients. Rest of the say of the opponent however is in denial.
4. As far as legal position is concerned, it settled that the Consumer Fora are Courts of limited jurisdiction and are required to conduct their proceedings in a summary manner based on principles of natural justice. In the sense they are not Courts though vested with the powers of Civil Court. Honble Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=(1995) 3 SCC 583, has clearly spelt out the status of consumer Fora inter alia stating that the quasi judicial bodies/authorities/agencies created by the Act known as District Forum, State Commission and the National Commission are not Courts though invested with some of the powers of a Civil Court. They are quasi judicial Tribunals brought into existence to render inexpensive and speedy remedy to consumers. These Forums/Commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional Forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. It was intended to help the consumers to get justice and fair treatment in the matters of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for âbusiness to consumer disputes and not âbusiness to business disputes. In a recent case of Milan Barot v. Mukesh Haridat Bhatt, reported in III (2011) CPJ 141 (NC), Honble National Commission has been relying in the ruling of Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute (supra), has laid down that âbusiness to business dispute can be adjudicated by a Civil Court and not in Consumer Court.
5. Secondly if the dispute between the parties is not between service provider and consumer but rather two service providers in that eventuality the complainants are not a consumer. This point of law has been settled by Honble National Commission in the case of Ashish Yadav v. Gaurav Prasad and Others, reported in III (2009) CPJ 85 (NC).
6. As far as facts of this case are concerned admittedly the complainants had floated the scheme of Flats 16 in number known as âGautam Park Flats. The complainants therefore are builders ultimately providing service to the parties or consumers to whom the flats are sold. The complainants are themselves service providers. Admittedly again the complainants being builders themselves have hired or availed the services of the opponent as contractor. The dispute between the parties therefore can be said to be a dispute between the parties therefore can be said to be dispute between two service providers. Moreover, the complainants had floated the scheme of flats to earn profit and the opponent was constructing the flats for profits. Therefore entire dispute is âbusiness to business and not âconsumer to business. The complainants therefore are not legally entitled for the indulgence of this Commission and they are required to be relegated to the Civil Court of competent jurisdiction. The merits on facts are not discussed to avoid prejudice, if any to the case of the parties.
7. Having thus regard to the facts and circumstances of the case, we pass the following order:
The complaint is dismissed with no order as to cost. The complainants are relegated to
Civil Court of competent jurisdiction. Order accordingly.