IMPORTANT POINT
Where a complaint involves adjudication of highly disputed as well as controversial questions which can be adjudicated upon by leading evidence in regular trial, it shall not be maintainable and cannot be decided in summary proceedings.

Saroj Sharma, Member—Complainant Shri Jaswant Hans and opposite party (OP) Shri Ashok Kumar Goel, who were arrayed as parties before the District Forum, Shimla in Consumer Complaint No.98/2007. This complaint was disposed of on 25.3.2010. District Forum below while disposing of the complaint as ordered as under:

“Resultantly, we allow this complaint and in the given facts and circumstances of the case, we proceed to direct the OP to pay the market value externally prevailing of the deficient area sold to him. Also the OP shall pay the balance/difference of the amount agreed to be spent on fixtures and fittings and the amount actually spent, which shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till realization. The litigation cost, is, quantified at Rs.2,500. This order shall be complied with by the OP, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties has undertaken to collect the certified copy of this order, from the office, free of cost, as per rules. The file after due completion, be consigned to record room.”

2. Complainant has preferred Appeal No.230/2010, whereas the OP has preferred Appeal No.235/2010 as both are not satisfied with the said decision. Complainant at the time of hearing prayed for allowing the appeal and prayed for grant of relief in terms of prayer clause of the said complaint. Whereas in his appeal, the OP has prayed for dismissal of the appeal of the complainant, while allowing his appeal and consequently dismissing the complaint being frivolous. Both parties have prayed for costs as well as special damages.

3. Record of the District Forum below reveals that flat No.322 comprising of two bed rooms, one drawing room, two toilets, one kitchen, common corridor with RCC beams columns and RCC slab half brick wall and common wall of Hotel laid in cement mortar, soft wood frames and shelters of doors and windows, measuring 96.25 sq. mtrs. (1036 sq. feet) in the second floor was purchased by the complainant and according to him he made the entire payment. In this behalf he has placed on record photocopy of sale deed Annexure C1 with his complaint. Despite full payment and registration of the sale deed, possession of the flat was given only in the month of December, 2006. At that time he was surprised to find that what was held out at the time of sale of flat was different and at spot the flat was in a deplorable condition because of poor quality of construction, workmanship, using old and inferior quality of material. Whenever attempt was made to contact the OP, he evaded the issue. Deficiency which was found according to the complainant has been projected in paragraph No. 5 of the complaint. In this background on account of deficiency of service, he suffered mental, physical as well as financial harassment and was thus entitled to be compensated for it. Further case of the complainant was that against the huge area of 96.25 sq. mtrs. (1036 sq. feet) area provided to him was 84.17 sq mtrs., i.e. 906 sq. feet in addition to deficiency in material, like sanitary fittings, fixtures etc. He thus claimed Rs.15,00,000 as damages from the OP. With a view to support his claim, complainant relied upon photographs Annexure C2 and report of Shri Vivek Karol Valuer Annexure C3.

4. This stand of the complainant was disputed by the OP. According to him, complaint was misconceived, groundless; Forum had no jurisdiction to entertain upon the disputes involved in the complaint, because it was not a “consumer dispute”, therefore, does not fall within the provisions of Consumer Protection Act, 1986 and was exclusively triable by a Civil Court. It was a flagrant abuse of process of law and aim to harass and blackmail the OP. Complainant had no locus standi to file the present complaint which was liable to be dismissed under Section 26 of Consumer Protection Act, 1986, transaction being commercial u