FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The brief facts of the case are that the complainant and his father Aminul Haque; since deceased booked a flat measuring about 960 sq. ft. super built up area on the 2nd floor of KMC Premises No. B/5/H/5, Jannagar Road, Ps Beniapukur, Kolkata-700014. Booking Agreement dated 09.02.2011 was executed between the complainant, his father, since deceased and the OP-1/Developer. As per Booking Agreement complainant is liable to pay Rs. 1,950/- per sq. ft. as construction cost of the booked flat and also rental of Rs. 1.50 per sq. ft. per month payable according to English Calendar. Total construction cost of booked flat is Rs. 18,72,000/-. Complainant has already paid construction cost of Rs. 15,00,000/- to the OP-1. Possession of the booked flat is promised to be delivered within 12 months from the date of construction of proposed G+3 storied building. OPs 2 and 3 are the landlords of KMC Premises No. B/5/H/5, Jannagar Road, Kolkata-700014 who executed a Development Agreement dated 09.08.2010 with the OP-1 for construction of a G+3 storied building at the said premises. OP-1 also assured vide letter dated 08.06.2018 that the booked flat will be delivered within 06 months. OP-1 holds the money of the complainant for indefinite period. Such conduct of the OP-1 clearly bears the omen of unfair trade practice. Despite commitment OP-1 failed to hand over physical possession of the booked flat. Alleging unfair trade practice and deficiency in service on the part of the OP-1 the complainant has filed the present complaint.
The OPs 1 to 3 have contested the complaint as being devoid of any cause of action. They aver that the complainant is not a consumer under the provision of Consumer Protection Act. It is also their averment that the complaint is without jurisdiction and therefore, liable to be dismissed. The OPs further contend that the Booking Agreement dated 09.02.2011 is for tenancy right of the flat at a rental of Rs. 1.50 per sq. ft. payable according to English Calendar month. OPs 2 and 3 approached the OP-1 to construct a G+3 storied building at KMC Premises No. B/5/H/5, Jannagar Road, Kolkata-700014 and also authorized to induct tenant in the proposed building. Neither the complainant nor his father, since deceased paid any amount for purchase of the flat but payment was made for construction cost of the flat for tenancy. Construction cost has been increased from Rs. 1,950/- to Rs. 3,000/- per sq. ft. and if the complainant agreed to pay Rs. 13,18,000/-, in that event the OPs are ready to hand over physical possession of the flat to the complainant as tenant under the landlords (OPs 2 and 3). There is no unfair trade practice and deficiency in service with reference to the allegations in the complaint. Thus, the complaint is liable to be dismissed.
Both parties have also filed their E/chief supported by affidavit. We have considered the argument and have carefully gone through the record of the case.
It is submitted by the Ld. Advocate for the OP that the complainant does not fall under the definition of consumer as content in the act and the complaint filed by him could not have been entertained by the District Consumer Redressal Commission. Booking Agreement dated 09.02.2011 is not an Agreement for Sale. Agreement dated 09.01.2011 was executed between the OP-1/Developer in one part and the complainant and his father, since deceased in other part. Such agreement is a tenancy agreement. By virtue of Development Agreement dated 09.08.2010, the OPs 2 and 3 being the landlords entrusted the OP-1 to construct a G+3 storied building at KMC Premises No. B/5/H/5, Jannagar Road, Ps Beniapukur, Kolkata-700014 and to induce tenants to realize construction costs of the proposed building. Complainant and his father since deceased approached the OP-1 to book one flat measuring about 960 sq. ft. super built up area on the 2nd floor of the proposed building. Booking Agreement was executed and the tenancy will start from the date of possession.
On bare perusal of the Booking Agreement dated 09.02.2011, we find that the complainant and his father, since deceased shall have to pay construction cost of Rs. 18,72,000/- and they will pay rent at the rate of Rs. 1.50 paisa per sq. ft. Booking Agreement further shows that the complainant is liable to pay monthly rent at the rate of 1.50 paisa per sq. ft. payable according to English Calendar. Thus, the dispute is cognizable only by the Civil Court. In a judgment reported in 1992 CPJ 29 Mrs. Laxmi Ben Laxmi Chand Shah Vs. Mrs. Saker Ben Kanji Chandan the Hon’ble NCDRC has been pleased to hold that if there is relation of landlord and tenant between the parties, and the tenant does not fall under the definition of consumer, if the tenant does not fall under the definition of consumer, how it can be held that landlord falls under the definition. Therefore, the remedy of the complainant is not under the Consumer Protection Act, itself and he is to resort his remedies before the competent Civil Court having its territorial jurisdiction. In our opinion, the District Consumer Disputes Redressal Commission has no jurisdiction to entertain the complaint.
Fact remains that the complainant paid Rs. 15,00,000/- as construction cost of 960 sq. ft. super built up area on the 2nd floor of the proposed building and the OP-1 being the developer utilized invested such amount in the construction work. In the given circumstances, the OP-1 cannot hold the money indefinitely by claiming additional construction cost from the complainant which was not in accordance with the booking agreement.
For the above observations, we are not inclined to allow consumer complaint and the consumer complaint is dismissed on contest against the OPs, No cost is imposed upon any of the parties.
Complainant invested his hard earned money for the booked flat. We have already held that this commission has no jurisdiction to entertain the complaint as the complainant is not a consumer under the purview of the CP Act. For the natural justice, we direct the OP-1/Developer to refund Rs. 15,00,000/- along with interest at the rate of 6 percent P.A. from the date of payments till its realization within 90 days from the date of this order failing which the complainant may file appropriate application to execute the order.
