Ld Advocates for the complainant and OP1a are present. Judgement is ready and pronounced in open Commission.

BY -    SRI ASISH DEB, PRESIDENT

The complainant and opposite parties are permanent residents of the above address, which is within the jurisdiction of this Commission. The Complainant filed this case against Dilip Kr Metya as op-1 , Smt. Anita Das Dinda as op-2 and Sri Dhurjati Prasad Mandal as op-3. In course of running of Trial said Dilip Kr Metya died. OP-1A. Smt. Suchitra Metya ,W/o Late Dilip Kr. Metya and OP- 1B. Ms. Monalisha Metya, D/o Late Dilip Kr. Metya have been substituted.

The facts of the Complainant’s case can be stated in a nutshell as below;-

The complainant and her family are residing (presently) in a rented house at Tamluk since last 7 years or more due to her husband’s professional demand. The complainant was searching for plot of land within Tamluk town for construction of their own dwelling house and during this period the complainant introduced with the OP-01[Husband of OP-1A & father of OP-1B] through one known people.The opposite party no. 1[Husband of OP-1A & father of OP-1B] informed the complainant that his sister [OP-2] having some plot of land, measuring 05 & 59/1000 dec. in plot no. 1351 & 1351/2474 of Mouza Dakshin Chara Sankarara, situated within the Tamluk municipality. The opposite party No. 1[Husband of OP-1A & father of OP-1B], shown the complainant a photocopy of power of attorney in favour of his name, which was given by OP No. 2. Accordingly, on 18.12.2013, OP No. 1[Husband of OP-1A & Father of OP-1B] made an agreement with the complainant in presence of Phani Bhusan Patra of Padumbasan & Manoj Mantri, Dakshinchara Sankarara & also Bijoy Pattanayek of Uttar charasankarara. According  to the above mentioned agreement –OP-2, Smt. Anita Dinda is the owner of 05 & 59/1000 Dec. at plot no. 1351 & 1351/2474 of Dakshinchara Sankararamouza, which she has purchased in the year 2003 by a registered deed no. 1088, dated 10.03.2005. OP-1[Husband of OP-1A & father of OP-1B] was doing the said agreement as per advice & will of OP-2, as OP-2 was in  acute need of money. Sell value of the land was Rs. 5,12,000/-.OP-1[Husband of OP-1A & father of OP-1B] received Rs. 1,50,000/- on the date of agreement in favour of OP-2.The following person/persons were present at the time of that agreement and they put their signatures on the said agreement. Witnesses viz Phani Bhusan Patra of Padumbasan, Tamluk, ManojManatri of Dakshinchara Saankarara, BijoyPattanayak of uttarchara Sankarara and Ashis Kumar Das husband of the complainant. It was also settled that registration of the land would be done within 17.02.2014, which was mentioned by the witness Bijay Pattanayek on the agreement, dated 18.12.2013 as per version of OP-01[Husband of OP-1A & Father of OP-1B] that the said registration of the land will be done after completion mutation , which is still pending. The OP-1[Husband of OP-1A & Father of OP-1B] had taken more Rs. 12,000/- on 06.01.2014.On 29.04.2014 OP-1 [Husband of OP-1A & Father of OP-1B]  came to meet with the complainant with one Dhurjati Prasad Mondal and told that “Dhurjati Prasad having 7.369 Dec. Plot at land adjustment to the plot at land, which the complainant is going to purchase for which the agreement on 18.12.2017. Presently Dhurjati Prasad Mondal is interested to sell his land.On repeated request and advice by OP-1[Husband of OP-1A & father of OP.1B] and OP-3 complainant was convinced to purchase the land of Dhurjati Prasad Mondal. (O.P.-3).On 29.08.2014, one “Baina Nama Rasid” was prepared between OP-01[Husband of OP-1A & Father of OP-1B], received of Rs. 80,000/- on behalf of OP-3 in presence of other witnesses. According to said Bayna Nama on 29.04.2014. The plot no. is 1351, 1351/2474 & 1351/2476 Mouza Daakshinchara Sankarara. The total land of OP-3 is 07.369 dec. Sale value of the land Rs. 8,50,000/-. Hand over and Registration would  be made within on 28.07.2014. Rs. 80,000 was paid on 29.04.2014(date of Bayna Nama Rasid).  Later OP-1 [Husband of OP-1A & Father of OP-1B]/OPP-3 received Rs. 3,40,000/-(Rupees three lac forty thousand] only from the complainant as per following installments. Before that OP-1[Husband of OP-1A & Father of OP-1B] and oOP-3 have take Rs. (1,50,000 +12,000+80,000) = 2,42,000/- on stated in this complaint in para – 8D, para 9 & para 12. In this way OP-1[Husband of OP-1A & Father of OP-1B], OP-2 and OP-3 have received Rs. (3,40,000 + 2,42,000) = 5,82,000/- (Rupees Five lac Eighty Two thousand] only from complainant.In spite of several requests the Ops did not take step for  registry,  even mutation is still pending.Later the complainant came to know by searching that the said plot of land is in the name of one “Satish Mukhopadhyay .The complainant came to know that OP-1[Husband of OP-1A & Father of OP-1B], is actually a regular land broker.OP-1[Husband of OP-1A & Father of OP-1B], is habituated with this type of unfair trade practice with the help of some of his associates. Due to the above harassment, the complainant and her husband are suffering from mental illness.The complainant and her husband got a financial loss of Rs. 6,50,000/- including searching the present status of the land etc.For the above, complainant is praying for  recovery of    Rs. 5,82,000/-, expenditure for searching the ownership  of the land etc Rs.68.000/-, for harassment & mental agonyRs2,00,000/-Legal & Travelling Expenses Rs.50,000/- Total amount = Rs.9,00,000 from the Ops. (OP-01[Husband of OP-1A & Father of OP-1B], OP-02 & OP-03). The cause of action was started on and from 18.12.2013 and was still continuing. In the above circumstance, the complainant mostly humbly prays before the honour would graciously be pleased to draw of a proceeding and to direct the opposite parties to pay compensation as para 23 above to the complainant and to pass a suitable order/orders as this Commission may deem fit and proper.

The notices of the case have been served upon the ops. The ops 1 & 2 have contested the case by filing Written version jointly. The op-3 did not contest the case as such the proceeding of the case run ex-parte against the op-3 accordingly:-

       The sum and summarization of the written version filed by the ops-1 & 2 can stated inter alia that the instant complaint case is not maintainable in present form and Law.The case plot belonged to Satish Mukho padhyay, Panchanan Mukhopadhya and Haripada Mukhopadhyay. They sold the case plot to Bishnupada Metya by a regd. Sale deed dt. 30.06.1957. In the said deed the D.S. plot number was mentioned. After death of Bishnupada Metya his twelve heir i.e. sons daughters and grand-son inherited the said property. The heirs of Bishnupada Metya sold away R.S. plot No. 1351 and R.S. plot No. 1351/2474 and 1351/2476 to Dhurjati Prasad Mondal bya registered sale deed dt. 02.08.20-2 No. 2359 in the year 2003.Thereafter, Dhurjati Prasad Mondal sold away  5 59/1000 i.e. 5.59 decimal in above three plots to Anita Dinda by regd. Sale deed dt. 07.06.2004.Thereafter, Anita Dinda declared to sell her purchased land. Petitioner Shipra Rani Patra wanted to purchase the said land but she had no capacity to pay the total consideration money at a time. So, Anita Dinda executed a Bainanama money of R.S. three plots, the said receipt was treated as Bainanama in the eye of law. Total consideration money was fixed Rs. 5,12,000/-out of which Rs. 150,000/- was given as advance. The Power-of-Attorney holder Dilip Kumar Metya received Rs. 150000/- on 18.12.2013 and Rs. 40,000/- on 16.11.15 and again Rs. 40,000/- on 02.10.2016. Total Rs. 2,60,000/- out of total a consideration. Rs. 5,12,000/- was given to power-of-attorney holder Dilip Metya as advance. But the said Bainanama / receipt is an unstamped paper. The alleged Bainanama was not prepared according to W.B. Stamp Act. So, the alleged Bainanama is completely illegal and baseless. The said Bainanamacan not be treated as evidence of alleged transaction. Though the defendant/O.P. is willing to sale the said land and supplier to Xerox copy of aforesaid sale deed and L.R.R.O.R. for verification by the petitioner. After verifying the said case land and said documents petitioner is willing to purchase  the case land through alleged bainanama. As the said alleged receipt/Bainanama is illegal in the eye of law, the petitioner intentionally avoided actual legal procedure i.e. suit for specific performance of contract for sale in the appropriate civil court. As the sale was not completed no relationship between purchaser and seller is established. As the petitioner did not file the case in proper court to realize her claim, the instant case is completely out of jurisdiction of thehonour’s court and petitioner only to avoid penalty money of alleged Bainanama filed the instant case before the Honour’s court.

As the petitioner is willing to purchase the said case land after proper verification of deeds, records and other connecting papers, the petitioner is stopped to say that the land belonged to Satish Mukhapadhya. And the demand of paid money i.e. Rs. 5,82,000/- mentioned in the application by the petitioner  is totally false, baseless and illegal. Ass the petitioner has no capacity to pay the entire consideration money  at a time. So, she paid some amount of Rs. 2,60,000/- as advance by installment. Till now petitioner is unable to pay the rest consideration money. So, harassment and mental agony is made by petitioner to the seller i.e. the O.Ps. And the other demanded money mentioned in the application is completely baseless, motivated and based on surmise and conjecture.  For the above reason the instant case is totally false and illegal and liable to be dismissed.

Upon pleadings of both parties, the following points for determination are framed.

Points for determination are:

1. Is the case maintainable in its present form and in law?                      

2.    Is the complainant entitled to the relief(s) as sought   for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the affidavit of the complainant, written version filed by ops-, evidence of both contesting parties and other documents. We have anxiously considered the arguments advanced by the Ld. counsel of rival parties.

The instant case has been filed under the provisions of the CP Act 1986. In view of provision of section 107(1) of the C P Act,2019 ,  the C P Act 1986 has been repealed. In view of provision of section 107(2) of the C P Act,2019 , notwithstanding such repeal , any action taken under the Act 1986 deemed to have been done under the present Act, 2019. The contesting parties have strenuously argued on the issue of maintainability of the case. Now, in terms of section 2( 7) of the C P Act,2019 the ‘Consumer’ means any person who buys any goods for consideration…..In view of  section 2( 21) of the C P Act,2019 goods means every kind of movable property. In the instant case the complainant has alleged that  the ops in connivance with other ops took consideration upon execution of a Bainanama for selling some land. Land , immovable property can not be termed as goods  in terms of section 2( 21) of the C P Act,2019. In such a situation , the complainant can not be treated as consumer.

Now, it appears that the complainant have alleged reliefs basing on twofold mischief s  viz ‘deficiency in service’ and  ‘unfair trade practice’ . The alleged acts or omission on the part of the ops do not fall within the definition of ‘service’ in terms of section 2( 42 ) of the C P Act,2019 and ‘unfair trade practice’  in terms of section 2( 47 ) of the C P Act,2019. The ops are not service provider  in terms of section 2( 37 ) ( ii) (a) of the C P Act,2019. A contract for transfer of land, immovable property can not be treated as sale of goods. Therefore, the complainant has failed to bring home the elements of twofold mischiefs viz ‘deficiency in service’ and  ‘unfair trade practice’ against the ops.

             Now, on careful evaluation of the materials on record ,it appears that the contesting ops have asserted that the alleged Bainanama was not prepared according to W.B. Stamp Act. So, the alleged Bainanama is completely illegal and baseless. The said Bainanama can not be treated as evidence of alleged transaction. As the said alleged receipt/Bainanama is illegal in the eye of law, the petitioner intentionally avoided actual legal procedure i.e. a suit for specific performance of contract for sale in the appropriate civil court. As the sale was not completed no relationship between purchaser and seller is established. We find that there is substance in the above contentions of the ops. Therefore, the bundle of facts indicate that the complainant has got no cause of action to initiate this consumer complaint before this forum against the ops. The relief lies under the Specific Relief Act ;as such this Commission can not usurp the Jurisdiction of a Civil Court.

 In view of above discussion , we find that the instant case is not maintainable in its present form and in law before this Commission. Thus, the complainant is not entitled to get any relief in this case.

 Accordingly, both the points are decided against the complainant.

Thus, the case does not succeed.

Hence, it is

O R D E R E D

That CC/187 of 2018 be and the same is dismissed on contest against the ops- 1A,1B & 2 and dismissed ex-parte against op-3.

No order as to costs is passed.

Let a copy of the judgment be supplied to the complainant and the ops 1A,1B& 2  free  of cost.