DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

      C.C. CASE NO. _71_ OF ___2015

DATE OF FILING : 10.2.2015                     DATE OF PASSING JUDGEMENT:  _10.5.2018_

Present                        :   President       :   Ananta Kumar Kapri

                                        Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT        :    Yakub Sardar, son of late Badaruddin Sardar of Madarhat Masjid Para, P.O Madarat, P.S Baruipur, Kolkata – 144.

•  VERSUS  -

O.P/O.Ps                            :  1. Md. Hannan Mondal, son of late Habibullah Mondal of Surjapur (More), P.S Baruipur, South 24-Parganas.

                                           2.   Nimai Chandra Bag, son of late Haran Chandra Bag.

                                           3(a) Sumitra Bag, wife of Dilip Kumar Bag (Now deceased)

                                           3(b) Soumajit Bag, son of late Dilip Kumar Bag

                                           3©  Shubrajit Bag, son of late Dilip Kumar Bag

                                           4.    Joydeb Bag, son of late Haran Chandra Bag,

                                           All of Baruipur Madarat Station Road, P.O & P.S Baruipur,Kol – 144.

                                           5.   Kasem Ali Pailan, son of Taher Ali Pailan , Padmapukur Kazipara, P.O & P.S Baruipur, Kolkata – 144.

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                                                            J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

     Briefly stated the facts of the complainant are that O.P-1 is a developer and O.P nos. 2 to 5 are land owners. On 5.3.2003 a Binanama was executed by and between O.P1 and the complainant and thereby the O.P-1 agreed to sell 10 decimal land out of 65 decimal as described succinctly in the schedule to the complaint for a consideration price of Rs.1,75,000/-. Rs.55,000/- was paid as earnest money by the complainant to the O.P-1 . But the sale deed has not yet been executed and registered by O.P-1 on receipt of the balance consideration money . As the O.P-1 has refused to register the sale deed in favour of the complainant, he has approached this Forum by filing a complaint under section 12 of the C.P Act, 1986 ,with a prayer for registration of the schedule land . Hence, this case.

     The O.Ps have contested the case by filing written statement. It is contended by them that the case is barred by law of limitation and that the dispute as raised herein by the complainant is one of civil in nature and therefore, the Forum has no jurisdiction to entertain this complaint. The case should, therefore, be dismissed in limini with cost.

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is the case maintainable in law?
2. Is the complainant entitled to get relief or reliefs as prayed for ?
3.  

EVIDENCE OF THE PARTIES

Both the parties have led their Evidences on affidavit which are kept in the record for consideration.

DECISION WITH REASONS

Point no.1 & 2 :-

It has been argued on behalf of the contesting O.Ps that the dispute between the parties is one of civil in nature and as such Forum has no jurisdiction to entertain this case. According to the version of the O.Ps, the sale was a sale simpliciter and there is no provision for service tobe rendered to the complainant by the O.Ps and as such, the case is not maintainable under the provisions of C.P Act, 1986.

On perusal of the complaint and Binanama dated 5.3.2003 (copy filed herein ) it is found that the complainant made payment of Rs.55000/- to the O.P-1 as earnest money and also agreed to purchase the schedule land which was in developed condition. There is no allegation in the complaint that O.P-1 has not yet developed the land as per the terms of the agreement. There is also no such provision in the agreement i.e Binanama dated 5.3.2003 that the O.P-1 made an agreement to develop the land. If there is no agreement to develop the land, it cannot be said that there is a provision for service to be rendered by the O.P-1 to the complainant. If there is no service agreed to be rendered by the O.P-1 to the complainant, question of deficiency in service does never arise.

In the instant case, it appears on scrutiny of the complaint and the agreement dated 5.3.2003 that sale agreed upon between the parties is a sale simpliciter and no provision for service is involved therein. The transaction being a sale simpliciter ,the case is not entertainable before the Consumer Forum in accordance with the provisions of Consumer Protection Act and, therefore, the case deserves to be dismissed.

In the result, the case fails.

Hence,

                              ORDERED

That the complaint case be and the same is dismissed on contest against the O.Ps but without cost.

     Let a free copy of this order be given to the parties concerned at once.    

                                                                                                                   President

I / We agree

                               Member                                                    Member                                                                      

Dictated and corrected by me

                        President