Date of filing: 3O.O8,2022 Date of Disposal: 12.01.2026 (PRTNCTPAL BENCH)

th D TED: L2 DAy FJ NUA Y2026 CORAM: HON'BLE Mr. JUSTTCE T.G.SHMSHANKARE GOWDA _ PRESTDENT and HON,BLE MTs. DIWASHREE M - LADY MEMBER tAtL78tt2022 sct29 BETWEEN:

Sri.C.A.Abdulla S/o Late Ali, Aged 77 years, R/o Gonikoppal Road, Virajpet Town, S.Kodagu - 57 L2t8. ........ Appeilant/s (By Sri.B.E.Somalokanatha, Advocate)

AND:

Sri.Vijaya Kumar S/o Guruswamy Aged 30 years, Building Contractor Gandhinagar, Virajpet Town, S.Kodagu-571218. Respondent,/s (Served - Absent)

ORAL ORDER (PER: HON'BLE Mr. JUSTICE T.c. SHMSHANKARE GOWDA, PRESIDENT)

This Appeal is filed U/s.4t of Consumer protection Act, 2019 (in short CP Act) by the Appellant challenging .

the order dated:30.07.2022 passed in CC/2/2020 on the file of Kodagu District Consumer Disputes Redressal Commission, (in short the District Commission).

2. The Appellant was the Complainant and Respondent was the Opposite ^party (in short Op) before the District Commission. The Rank of the parties shall be referred to as per their status before the District Commission.

3.

The Brief facts of the case are that:

The Complainant is the owner of the land bearing sy.no.10/3 and 72/2 situated at 10th Block, Bangali Beedi, Virajpet. He has obtained the plan from the Engineer for construction of commercial shops. He has entered into construction agreement dtd.01.11.2018 with Op and Op has agreed to complete the building within 13 months.

OP has received Rs.14 lakhs as advance. However, he has not completed the construction of building; not constructed as per plan; amount received from the Complainant was spent to other construction work;

he has utilized the workers as well as the materials for other construction work. Thereby pleading deficiency in service the Complainant filed the complaint.

4. the Before District Commission, Op has opposed the complaint by filing version that the District Commission has no jurisdiction to entertain the complaint. The construction agreement dtd.01.11.2019 cannot be considered since the Complainant has already filed suit against him for specific performance before the Court of Sr.Civil Judge, Virajpet in OS.2112019 aileging breach of contract. As such sought for dismissal of the complaint.

5. Before the District Commission, the Complainant has not lead affidavit evidence. He has placed reliance on 6 documents which are not marked.

On behalf of OP, OP has filed his affidavit evidence as RW-1 and marked 5 documents as Ex-R1 to R5.

6.

The District Commission after hearing both the parties dismissed the complaint. Aggrieved by the same, the Complainant has filed this appeal.

7 Respondent is served with the notice he remained absent. No representation on behalf of Appellant. Appellant has not argued the matter. We have perused the materials on record.

8.

Now the point that arise for our consideration is;

Whether the order of the District Commission is perverse or illegal, does call for interference ?

9.

We have carefully perused the materials on record. It is clear that, the Complainant wants to construct commercial complex, for which, he has entered into construction agreement dtd.01.11.2018, wherein the OP has agreed to construct the building within 13 months. What was agreed in the said E a9reement was not established before the District commission. The Comprainant did not read his affidavit evidence and marked any of the records. On the other hand, the Op has filed version and specifically stated that the Complainant has already filed suit against him for specific performance before the Court of Sr.Civil Judge, Virajpet in OS.2t/z)tg alteging breach of contract. When the Complainant has already filed civil suit seeking various remedy, matter required detail trail, and paraileily the comprainant cannot fire consumer complaint under Consumer protection Act seeking same relief. 10.

We have carefully perused the order of the District Commission. The District Commission has rightly observed that, the Complainant has alr