Sri Ashoke Kumar Pal, President
The crux of the instant complaint case in a nutshell is that the complainants booked a plot of land being scheme plot No.25 and 26 (which has been subsequently changed and selected as the scheme plot No.32 and 33 by mutual consent) measuring about 5 cottahs and 8 chittaks more fully described in the schedule of the petition of complaint at a valuable consideration of Rs.5,00,000/- only. The complainant paid altogether Rs.2,55,000/- out of total consideration amount of Rs.5,00,000/- on different dates and the OPs acknowledged the receipt of the same by issuing money receipt (Annexure-A & B). But inspite of receipt of Rs.2,55,000/- the OPs did not supply the relevant documents in respect of the scheduled property and as such on 05.05.2018 the complainant No.1 sent a letter to the OP No.1 to supply the relevant documents within seven days from the receipt of the letter and (Annexure-C). But the OP despite receipt of the letter did not pay any heed to the same. On 11.05.2018, a reminder letter was also given requesting the OPs to supply all the relevant documents in respect of the scheduled property or to refund the entire amount of Rs.2,55,000/- which they have received from the complainants, within three days from the receipt of the letter (Annexure-D). On failure to supply all the documents by the OPs on 12.05.2018, the complainant No.1 sent another letter requesting the OP to refund the entire amount of Rs.2,55,000/- within two days from the date of receipt of the letter, which they have received as earnest money from the complainants (Annexure-E). A complaint (FIR) was also lodged at Sonarpur P.S. being Sonarpur P.S. Case No:84 dated 28.05.2018 U/S 420 / 406 / 120 (B) of the I.P. Code. The OPs did not even execute an agreement for sale despite receipt of more than 50 % of the total consideration amount from the complainants. Ultimately on 03.12.2019 the complainants sent a notice to the OPs through Advocate requesting them to refund the entire earnest money of Rs.2,55,000/- with 10% simple interest (Annexure-G). The OPs on 20.12.2019 replied the said Advocate’s letter demanding current market value of the property and asked the complainant to visit their office for execution of the agreement for sale and Deed of Conveyance (Annexure-H) which prompted the complainants to file the instant complainant case on the relief as sought for in the petition of complaint.
The OPs contested the case by filing W/V contending that the claims of the complainants are all false. The specific case of the OPS is that the OP No.2 is a Land Broker engaged in the business of land plot and land selling. The OPs are not Developers or Promoters of any kind and as such not service providers. The Complainants were asked to attend the office of the OPs but as none of them turned up, the hard copies of the documents could not be handed over to them. The complainants were also asked to attend the office of the OPs to settle the dispute and for refund of the amount. The OPs never refused the complainants to refund the money. On the other hand, they are all along ready and willing to refund the part payment of the consideration amount of Rs.2,50,000/- which they received from the complainants. The OPs did not receive any cash amount of Rs.5,500/- as alleged. The dispute is of a civil in nature and is to be tried by Civil Court. The OPs also denied the other material averments of the petition of complaint para-wise and prayed for dismissal of the complaint case with cost.
Points for consideration :-
- Are the complainants consumers?
- Is the complaint case maintainable?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Are the complainants entitled to get relief as prayed for?
Decision with reasons :-
Point No.1 & 2:-
Both the points 1 & 2 are taken up together for consideration for the sake of convenience and as they are interlinked. It was the argument of the Ld. Lawyer for the complainants that they have paid Rs.2,55,000/- out of the total consideration amount of Rs.5,00,000/- to the OPs and as such the complainants are the consumers and the OPs are service providers. The complainants in support of their argument relied upon the decisions reported in 2017(2) CPR 455 (NC); 2021 (1) CPR 255 (NC); and 2021 (1) CPR 298 (NC). But it appears that the facts and circumstances of those cases are different from the present one and as such the decisions referred by the complainants do not support the complaint case. On the other hand, it was the specific argument of the Ld. Lawyer for the OPs that there was no agreement for sale in between the parties and as such no element of service promised by the OP. Therefore, the complainants cannot be called a consumer as defined U/S 2(7) of the Consumer Protection Act, 2019. Moreover, it is a case of sale of plot of land simpliciter and as such the dispute will not come within the jurisdiction of the District Consumer Forum. It was also the argument of the Ld. Lawyer for the OPs that on both score the instant complaint case is not maintainable.
The OPs relied upon the decisions reported in Civil Appeal No.331 of 2007 (SC); 2016(2) CLT 560; 2016 (2) CPR 555; 2016 (4) CPR 335 (NC); 2014 (3) CPR 33(NC); and 2017 (2) CPR 477 (NC) wherein the Hon’ble Supreme court of India as well as the Hon’ble NCDRC categorically stated that as far as the Housing Construction by sell of flats by builders or societies is concerned that would be on different footing. On the other hand, where sell of plot of land simpliciter is concerned and if there is any complaint the same would not be covered under the Consumer Protection Act.
It was the observation of the Hon’ble NCDRC that in absence of binding contract between the complainant and the OPs, complainant cannot be said to be a consumer as there is no element of service promised by the OPs.
Here in this case also there is no written agreement or deed between the parties and it is a case of sale of plot of land simpliciter. As such, relying upon the observations discussed and the decisions referred here in above we are of the firm opinion that the instant case is not maintainable before this Commission and the complainants cannot be termed as consumers as defined U/S 2(7) of the Consumer Protection Act, 2019.
As such, Point Nos. 1 & 2 are decided in favour of the OPs and against the complainants.
Point No.3 & 4 :-
As the Point Nos. 1 & 2 are decided in favour of the OPs and against the complainants, we do not think it necessary to enter into Point Nos. 3 & 4. The OPs are not deficient in providing service as they are not called as a service providers in absence of any agreement as discussed here in above. The complainants are thus not at all entitled to get any relief as prayed for.
As such, Point Nos. 3 & 4 are also decided in favour of the OPs and against the complainants.
In the result, the complaint case fails.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby dismissed on contest. Parties will bear their respective cost.
Ld. Member Sri Partha Kumar Basu is on leave. As such he did not sign the judgement and order passed on this day.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
Ashoke Kumar Pal
President
