Order-8.
Date-23/06/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that OP runs a business of land development and construction for the purpose of establishing a township for lower and middle income group of people under the name and style Green Valley. Being influenced with the goodwill of OP, the complainant booked a plot of land with the OP sometime in the month of February, 2007 being plot No.257 measuring 1460 sq. ft. at a consideration of Rs.1,56,139/-. The complainant paid an amount of Rs.23,420/- in cash to the OP on 02-03-2007 and It was agreed that balance amount will be paid in 36 instalments. OP also issued an identity slip in favour of the complainant. The complainant, thereafter, paid total consideration price of the plot amounting to Rs.1,56,139/- to the OP on different dates right from 02-03-2007 to 09-01-2013 by cheque and in cash. The complainant paid the last instalment on 09-01-2013. An agreement for sale in respect of plot No.257 was also executed on 30-07-2008 between the OP and the complainant. The scheduled plot of land is mentioned in scheduled B of the agreement for sale. The complainant states that total land purchased by the OP is agricultural land as mentioned in the scheduled C of the agreement for sale. The OP ought to have completed the sale in respect of the subject plot of land in the project Green Valley by registering Deed of Conveyance upon completion of the project and payment of entire consideration as per the agreement for sale. The complainant in the last week of September, 2010 visited the site and found that land was not filled up and developed. On enquiry OP told the complainant that earth filling and development of land could not be done owing to some political disturbances and other untoward events. The complainant also paid further amount of Rs.26,219/- by cheque on 09-01-2013 as per the words of the OP. It is alleged that no development work was done at the land purchased by the OP as mentioned in the schedule A of the agreement. The complainant vide letter dated 03-01-2014 requested the OP to return an amount of Rs.1,56,139/- towards consideration price of the plot the OP remained silent. OP however, returned an amount of Rs.30,000/- out of total consideration of Rs.1,56,139/-. On vigorous persuasion by the complainant the OP, thereafter, failed and neglected to return the balance amount of Rs.1,26,139/-. The complainant also alleged deficiency in service and unfair trade against the OP. Hence, this case.
Despite service of summons none appeared from the side of the OP to contest the case and the case has proceeded ex parte against the OP.
Point for Decision
- Whether the case is maintainable in its present form and in prayer?
- Whether the OP is deficient in rendering service to the complainant?
- Whether the OP indulged in unfair trade practice?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record namely Xerox copy of identity slip, Xerox copy of money receipts, Xerox copy of letter of allotment, Xerox copy of full and final payment Xerox copy of agreement for sale dated 30-07-2008, Xerox copy of letter addressed to the Manager OP Pvt. Ltd. dated 03-11-2014 and other documents on record.
We find that the complainant has filed this case relating to purchase and sale of land in respect of the scheduled property i.e. plot No.257 measuring about 1460 sq. ft. under Green Valley-II lying and situated at District South 24 Pgs under Kalardhari Gram Panchyat, Mouza Krishna Rampur, J.L. No.89, Khatian No.293, Dig No.95 P.S. Bishnupur. Said transaction is nothing but a transaction relating to sale simiplicitor. The complainant has asked for relief regarding return of deposit amount in respect of sale and purchase of land. The impugned agreement as we find is a sale of land. The agreement as we find involves agreement for sale of land measuring 1460 sq. ft. under Green Valley-II, Bishnupur, South 24 Pgs. as it is described in the petition of complaint and also in schedule B of the agreement for sale. The agreement is for development of land in the Green Valley-II project.
We are afraid we find that the project is not development of housing or construction of housing.
‘Service’ in C.P. Act is defined u/s.2(2)(o) as follows .
‘Service’ means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
‘Goods’ is not defined in C.P. Act but it is defined under the Sale of Goods Act, 1930 .
‘Goods’ is defined as per Section 2(7) of the ‘Act’ as “Every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”.
Proposed sale of land or agreement for sale of land does not come within the purview of the ‘service’ as per C.P. Act or under ‘Goods’ as defined is Sale of Goods Act, 1930. We think that the dispute as ventilated is not a consumer dispute and does not come under the purview of C.P. Act. Moreover, cancellation of the agreement is not also within the jurisdiction of Consumer Fora. We think that the case is not maintainable in its present form and prayer and under C.P. Act.
As per Section 2(1)(d) of C.P. Act ‘Consumer’ means any person who buys any goods for a consideration which has been paid or promised or partly paid or partly promised etc. etc. Land as we know does not come within the definition of goods. So, we cannot say that the complainant is a consumer as per the definition of C.P. Act. We think that the case is not maintainable in its present form and prayer under C.P. act.
We refrain from taking up the other issues as the case is not maintainable in C.P. Act.
Hence,
Ordered
That the instant case be and the same is dismissed ex parte but on merit.
The complainant, however, reserves the right to approach the appropriate Civil Court to seek remedy, if so advised. The complainant may take advantage of the ruling of Hon’ble Supreme Court in the case of Laxmi Engineering Works vs. P.S.J. Industrial Institute [11 (1995) CPJ 1 SC]
No order as to cost.
