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The Respondent being a Real Estate Company offered luxury apartments and plotted development project. Thus, also engaged in construction. So, when the appellant approached the District Commission, it dismissed the complaint as it found it unmaintainable as per Sec.2(42) of the Consumer Protection Act, 2019 and referred to Ganeshlal v. Shyam (2014) 14 SCC 773, and held that ‘immovable property’ did not come under the purview of ‘goods’. However, this was an erroneous judgement as observed by the State Commission in Annamma Jiney Jose v. M/s Svamitva Infra Pvt. Ltd, [A/494/2021] before Hon’ble Mr. Ravishankar (Presiding Member) and Hon’ble Mrs. Smt. Sunita Channabasappa Bagewadi (Member).

As admitted by the Respondent, it was clear that they were engaged in the construction. The State Commission referred Section 2(37) of the Act, of which (ii)(a) provides that, “a product seller is a service provider but does not include a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats”. Furthermore, Section 2(42) which defines service, also includes ‘housing construction’. Therefore, it was concluded that since the respondent’s development project consisted of a 40 feet road, 30 feet asphalted road with pedestrian walkways, included underground sewage drains and treatment plan, aimed at providing luxury lifestyle such as, a stylish entrance gate, beautiful garden, jogging track etc; it was clearly engaged in construction business and provided a housing construction service.

Ultimately, the Commission observed that, “The District Commission without considering these facts dismissed the complaint as not maintainable and supported the reasons with decision of Hon’ble Supreme Court of India in the matter between Ganeshlal v/s Shyam reported in (2014) 14 SCC 773 Civil Appeal No.331/2007 dt. 26.09.2013. In Ganeshlal v/s Shyam case, the District Commission allowed the complaint and directed the appellant to deliver the possession of the concerned plot. The State Commission and Hon’ble National Commission dismissed the appeal when the case was proceeded at Hon’ble Supreme Court of India, the advocate for appellant submitted that the appellant has executed the Sale Deed and the concerned plot of land has been handed over to the respondent. Hence, the Hon’ble Supreme Court of India cannot grant any relief to the Consumer/complainant. Hence, in our opinion, the complaint is maintainable u/s 2 (42) of Consumer Protection Act, 2019 and the reasons of District Commission supported by the decision of the Hon’ble Supreme Court which is different to the present case……The appeal is allowed. The impugned order passed by the District Commission, Bangalore is hereby set aside and matter is remanded to the District Commission directing them to hear the case on merits and to dispose the same expeditiously to meet the ends of justice.”

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Judgement Reviewed by Vagisha Sagar