DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 86_ OF ___2016
DATE OF FILING : 17.8.2016 DATE OF PASSING JUDGEMENT: 6.4.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & JhunAu Prasad
COMPLAINANT : Sri Abhijit Chattopadyay, son of Pratap Kr. Chattopadyay of Akra Krishna Nagar, Brahmin Para, P.O Batanagar, P.S Maheshtala, Kolkata – 140.
- VERSUS -
O.P/O.Ps : 1. Mostafa Sk. Son of late Sowkat Ali Sk. Vill. Nandabhanga, P.O Bakhrahat, P.S. Bishnupur, South 24-Parganas, pin-743377
2. Ramjan Ali Sk. Son of late Sowkat Ali Sk. C/o Sole Proprietor and Director of M/s OAS Realtors Private Limited, Vill. Nandabhanga, P.O Bakhrahat, P.S. Bishnupur, South 24-Parganas, pin-743377 ,having its city office at 522A/1, Diamond Harbour Road, 1st floor, P.O & P.S Behala, Kol-34.
3. M/s OAS Realtors Private Limited, C/O late Ramjan Ali Sk. At 522A/1, Diamond Harbour Road, 1st floor, P.O & P.S Behala, Kol-34.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Briefly stated, the complainant’s case is that one agreement for sale was executed by and between the complainant and the O.P-2 who was the director of O.p-3 company , which carries on business of land development, and the O.Ps thereby agreed to sell a Bungalow described succinctly in the petition of complaint for a total price of Rs.18,25,000/-. The complainant paid Rs.2,25,000/- to the O.P-3 on the date of execution of the aforesaid agreement and Rs.1,75,000/- on 17.3.2016 as part of the consideration price. But the O.Ps declined to deliver and transfer the property unless balance amount was paid to them. The balance amount of consideration price was agreed to have been paid by the complainant within March, 2016. But the same was not paid accordingly by the complainant to the O.P. So, the complainant demanded refund of the consideration price paid to the O.P-2; but O.P-2 paid no heed to such demand of the complainant. Complainant also applied for a home loan and the said loan was also sanctioned by the bank; but, he was compelled to cancel the loan and thereby incurred a cost of Rs.15000/- as charge for cancellation. Legal notice was given to the O.P-2 intimating revocation of the agreement for sale and demanding refund of the price paid to him. But the said price has not been refunded to the complainant by the O.P-2. Hence, this case by the complainant, seeking issuance of a direction to the O.Ps to deliver possession and to register the sale deed or , in the alternative, to refund Rs.2,25,000/- and also to pay compensation etc.
The O.Ps are contesting the case by filing written statement wherein it is contended inter alia that the case is not maintainable and that the complainant is not at all a consumer within the definition as provided in the Consumer Protection Act, 1986. According to them, the O.P-1 is the land owner ; he made an agreement for sale on 11.12.2015 with the complainant having acquired the property by Gift Deed dated 19.11.2014 ,executed by O.P-2. Complainant did not pay the balance amount of consideration price i.e Rs.16 lac within six months of execution of the agreement as per the agreement and , therefore, the O.Ps have no liability whatsoever towards the complainant at present. It is further submitted by them in their written version that the transaction was merely a sale simpliciter , there was no provision for providing any service to the complainant and , therefore, the case does not come within the purview of the C.P Act, 1986 and as such it should be dismissed in limini.
Upon the averments of the parties the following points are formulated for consideration in this case.
POINTS FOR DETERMINATION
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The petition of complaint is treated as evidence of the complainant vide order no.8 dated 11.4.2017 . Similarly the written version filed by the O.Ps is also treated as their evidence vide order no.11 dated 26.7.2017. The questionnaire, replies and BNA filed by the parties are also kept in the record.
DECISION WITH REASONS
Point nos. 1 and 2 :-
Already heard the submissions of Ld. Lawyers appearing for both the parties. Perused the petition of complaint, the written version , the evidences filed on affidavitby the parties, the questionnaire ,replies and BNAs kept in the record.
Considered all these.
The case is maintainablebefore the Consumer Forum, only when there is allegation of deficiency in service raised in the complaint. If there is no question of service involved with the allegations of the complainant, the question of deficiency in service does not arise at all. It has been argued on behalf of the O.Ps that the transaction between the complainant and the O.ps was merely a sale simpliciter and that the O.Psdid never agree to provide any kind of services, nor any kind of development of the land to the complainant. In absence of any provisions for providing services to the complainant, as goes his submission, the complaint under Consumer Protection Act is not maintainable and that the case should , therefore, be dismissed as being not maintainable in law.
Ld. Lawyer appearing for the complainant has submitted that there is a schedule annexed to the agreement for sale and this schedule relates to specification of the building. So, the O.Ps are bound to fulfill those specifications as per agreement between the parties and non-fulfillment of those specifications is nothing but deficiency in service. The complaint is ,therefore as goes his submission, amply maintainable in law.
In the midst of mutualrecriminations it is to be seen whether there is any provision of providing services mentioned in the agreement concluded between the complainant and the O.Ps. A copy of the agreement for sale dated 11.12.2015 has been filed by the complainant herein. The relevantparagraphs as transpiring at page 9 thereof is quoted herein as follows :
“AND WHEREASin pursuance to the above , and in accordance with the building plan approved by the Bakhrahat Gram Panchayet, South 24-Pargnaas, the present Vendor herein duly constructed a Pucca G+1 storied building including garden for the purpose of Bungalow over the land containing an area more or less 1.0625 cottahs out of 9Decimal at his own costs, expenses and efforts, free from all encumbrances”.
The above paragraph makes it clear that Vendor of the complainant constructed a Pacca G+1 storied building on the case land including garden for the purpose of Bungalow and the said land with constructed building was sold to the complainant by his Vendor. There is no mention in the agreement as to any kind of hiring of services of the O.Ps or any kind of development of land in the agreement. If no service is sought to be rendered by the O.Ps to the complainant, the complainant cannot bring any action against the O.Ps under the C.P Act, 1986. No service no action. In the instant case and going further into the facts and circumstances of the case it appears to us that the transaction between the complainant and the O.Ps was a sale out and out – a sale simpliciter andalong with the sale is not involved any kind of services to be rendered by the O.Ps in favour of the complainant. This being so, the complainant appears to be not maintainable in law and the case requires to be dismissed in view of this decision of ours. So, we should not go any further with the discussion of point no.2.
In the result, the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.Ps without cost.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
