IMPORTANT POINTS
(1) CPC – It is pertinent to note that, S.13(4) of the old Act as well as S.38(9) of the new Act does not have any mention as to the applicability of S.9A of the C.P.Code to the proceedings before the Consumer Commissions.
(2) Commission – There is no provision for framing the preliminary issue in a proceedings before the Consumer Commissions.

JUDGMENT

Milind S. Sonawane, Presiding Member—This is the Revision petition filed under S.47(1)(b) of the Consumer Protection Act, 2019 (the ‘C.P. Act’ for short).

2. The Revision petitioners have challenged the correctness and legality of the impugned order dated 07.12.2022 passed by the ld. District Consumer Distputes Redressal Commission, Ahmedgangar (the ‘District Commission’ for short). By the said impugned order the District Commission directed that, the application moved by the revisionists praying for the framing the ‘preliminary issue’ will be decided along with finality of the case.

3. The revisionists filed the revision petition along with the delay condonation application according to the revisionists there is 16 days delay in filing the revision petition. Revisionists No.2 was suffering from Viral Hepatitis on 3.1.2023 for two weeks. The medical certificate is duly produced by the revisionist. Revisionist No.2 is the person who was looking after the matter before the District Commission. As such the revisionist gets delay in filing the revision petition. Considering the extent of delay and the reasons given for it are satisfactory and the respondents also not seriously contested that issue. Hence, the delay is condoned.

4. As such, the respondents have filed consumer complaint No.289/2020 before the District Commission against the revisionists by alleging that, he was working for D.K. Developers, the revisionists and was doing the work fitting of the sliding windows in the flats constructed by them. He was working for last 10 to 15 years. It was agreed between them that, the amount of remuneration of fitting of the sliding windows in various projects of the revisionists will be adjusted towards the purchasing of the flat by the respondents. Accordingly, they agreed to purchase Flat No.2 in ‘Govind Raj site’ belonging to the revisionist for the total consideration of Rs.14,73,400/-. The respondents averred that, they paid various sums from time to time and till 14.11.2016 they paid sum of Rs.11,61,000/- to the revisionists. The balance amount of Rs.3,12,400/- was agreed to be paid at the time of final sale deed. However, the revisionists avoided to execute the same despite of various demands. Therefore, he prayed the District Commission that, the revisionists may kindly be directed to refund the amount of Rs.11,61,000/- along with 18 % of interest and also Rs.5,00,000/- for economic loss and mental harassment. The revisionists may also kindly be directed to pay Rs.1,00,000/- for physical harassment along with Rs.50,000/- as the cost of the proceedings.

5. The revisionists appeared before the District Commission and filed their written versions. They denied all the adverse contentions made against them by the respondents. Along with that, they moved an application that, the transaction between them and the respondents does not come within the preview of the C.P.Act. Therefore, the District Commission is not having the jurisdiction to entertain and try the complaint filed by the respondents and the issue raised by them shall be tried as a ‘preliminary issue’.

6. The District Commission after hearing both the sides on framing of the ‘preliminary issue’ passed the impugned order that, the issue raised by the revisionists will be decided along with finality of the case. Being aggrieved by the said order the revisionists are before us in this case.

7. Adv. V.V. Tarde for the revisionists submitted that, the transaction which is allegedly to have been taken place between the revisionists and the respondents does not create the consumer and seller/service provider relationship. That does not form the subject matter of the C.P. Act. It is therefore, the District Commission ought to have framed the said issue as a preliminary issue vide S.9A of the Code of Civil Procedure,1908 (the ‘C.P. Code’ for short). But by the impugned order the District Commission directed it to be tried in the final hearing. The impugned order is err