DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 127 OF 2018
DATE OF FILING: 16.11.2018 DATE OF JUDGEMENT: 24/06/2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Sri Susanta Das, son of Sri Narayan Chandra Das at Kalasangam, Fartabad, Sahapara, P.O Garia, P.S. Sonarapur, Dist. South 24-Parganas, Kolkata- 84.
O.P/O.Ps : 1. Sri Niranjan Ghosh
2. Sri Amal Kumar Ghosh
3. Sri Sunil Kumar Ghosh
4. Sri Anil Kumar Ghosh
All sons of late Hriday Ranjan Ghosh at 992, Vivekananda Road, Baikunthapur, P.O Rajpur, P.S Sonarpur, Dist. South 24-Parganas, Kolkata-149.
5. M/s Friends Udyog Associates, A Proprietorship Concern represented by its proprietor Sri Subrata Nath , son of late Birendra Kumar Nath at 53, H.C Sarani, Khiristala, P.O and P.S Sonarpur, Dist. South 24-Parganas, Kolkata-150.
_______________________________________________________________
JUDGMENT
Sri Ananta Kumar Kapri, President
Facts giving rise to the filing of the instant case runs in its narrow compass as follows.
O.P nos. 1 to 4 are land owners and O.P-5 is developer. An agreement for sale dated 26.4.2017 was executed between the complainant and O.P-5 and thereby O.P-5 agreed to sell a commercial place in the project building of him as succinctly described in Schedule A to the complaint for a total consideration price of Rs.6,50,000/-. The complainant paid Rs. 2,10,000/- though on different dates. Delivery of possession was agreed to be made over to the complainant by 31.3.2018 ,but possession has never been delivered as yet; even legal notice has failed to produce any impact upon O.P-5. O.P-5 has kept silent even after legal notice and, therefore, the complainant has come up before this Forum with the filing of the instant case, praying for refund of consideration money paid by him and also for compensation etc. Hence, this case.
2 paged written version is filed by the O.P-5 ,wherein only a legal plea has been taken to the effect that the complainant is not a consumer and the instant case is not maintainable in law.
O.P nos. 1 to 4 received summons but they have not appeared to contest the case. The case ,therefore, proceeds exparte against them.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law ?
- Is there any deficiency in service on the part of the O.Ps,as alleged by the complainant?
- Is the complainant entitled to get relief of reliefs as prayed for and if so, to what extent?
EVIDENCE OF THE PARTIES
Complainant has led his Evidence on affidavit. The written version filed by the O.P is treated as his evidence vide his petition dated 29.3.2019.
DECISION WITH REASONS
Point no.1 :
Ld. Lawyer appearing for the complainant has contended that the complainant has purchased a commercial place from the O.P-5 i.e the developer. According to the terms of the agreement, the possession of the said place was to be delivered to the complainant by 31.3.2018. But, possession is yet to be delivered. That apart, the developer gives no response whenever he is approached to by the complainant. So, to him, an appropriate order be passed by this Forum directing the O.P to pay back the consideration money received by him from the complainant.
Ld. Lawyer appearing for the O.P-5 has contended that the case itself is not maintainable as the complainant is not a consumer. According to him, it is stated by the complainant himself in his petition of complaint that he has purchased commercial place and ,therefore, he is not consumer within the meaning of the term “Consumer” under C.P Act, 1986. The case should ,therefore, be dismissed .
It is stated in the petition of complaint by the complainant himself that he agreed to purchase a commercial place from the O.P. From this very averment of the complainant, it stands established that the place which was sought to be purchased by the complainant is a commercial one. If a transaction is commercial, the case is not maintainable before the Consumer Forum inasmuch as the purchaser is not consumer within the meaning of Section 2(1)(d) , C.P Act, 1986. But, if it transpires on record that the purchaser i.e the complainant intended to purchase the commercial place for the purpose of earning his livelihood by means of self employment, the case is maintainable before the Forum. But, in that case, the fact of earning livelihood by means of self employment is to be pleaded and proved.
Coming to the facts of the instant case, it is found that nowhere in the complaint there is any pleadings to the effect that the complainant intended to purchase the commercial place for earning his livelihood by means of self employment. Regards being had to this aspect, we feel no pain whatsoever to say that the instant complaint is not maintainable in law and the complainant is not also a consumer within the meaning of Consumer Protection Act, 1986.
This issue is, therefore, answered against the complainant.
In view of what has been discussed above, point nos. 2 and 3 are also determined against the complainant.
In the result the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.P-5 and exparte against O.P nos. 1 to 4 , but without any cost.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
