HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This complaint has been filed under section 35 of the Consumer Protection Act, 2019 by the complainant Miss Sumiran Agarwal against the opposite party Alokendu Bodh Niketan (Residential) for deficiency of service and unfair trade practice by the opposite party.
- The complainant has filed the complaint case praying for the following reliefs :-
“a) To admit the complaint case and be pleased to issue notices to the opposite party by showing causes to them as to why the prayer of the complainant shall not be allowed.
b) That the complainants prays before your honour to direct the opposite party No. 1 and 2 to register the R.C.C. structure measuring about 1000 sq. ft. covered area in the entire front position of the ground floor (facing Mahatma Gandhi Road) of the proposed new building lying and situated at premises no. 80/3, Mahatma Gandhi Road in KMC ward No.40, Kolkata – 700 009 including proportionate right on the land underneath together with all amenities, facilities and easement rights attached therewith;
c) To pass an order by directing the opposite party not to create any third party interest over the R.C.C. Structure till the disposal of the complaint case;
d) and to pass an order by directing the opposite party to the compensation amount to Rs.5,00,000/- to the complainant for causing physical and mental harassment, and also direct the opposite party to a sum of Rs.50,000/- as litigation cost;
e) To pass such further order or orders as the Learned Forum may deem fit and proper.”
3. Heard the Learned Advocate appearing for the complainant on the point of admission. Learned Advocate appearing for the complainant has urged that the complaint case should be admitted.
4. Having heard the Learned Advocate appearing for the appellant and on perusal of the petition of complaint I find that the complainant has filed copy of Memorandum of Agreement dated 17.08.2023. On perusal of the copy of Memorandum of Agreement dated 17.08.2023 it appears to me that the complainant intends to purchase 1000 sq. ft. covered area of semi furnished (R.C.C. Structure only) ground floor having entire front portion facing Mahatma Gandhi Road at premises No. 80/3, Mahatma Gandhi Road, Kolkata – 700 009 at a consideration of Rs.1,00,00,000/- ( Rupees One Crore only). Page 9, para 2 of the said Memorandum of Agreement dated 17.08.2023 discloses that at present the construction of the R.C.C. Structure of the said individual building is completed up to ground floor.
5. Copy of possession letter dated 19.10.2023 filed by the complainant also discloses that the opposite party handed over the possession of the said 1000 sq. ft. covered area of semi furnished (R.C.C. Structure only) ground floor having entire front portion facing Mahatma Gandhi Road at premises No. 80/3, Mahatma Gandhi Road, Kolkata- 700 009.
6. Under this facts and circumstances, it appears to me that the agreement was executed for sale of 1000 sq. ft. covered area of semi furnished (R.C.C. Structure only) ground floor situated at premises No. 80/3, Mahatma Gandhi Road, Kolkata – 700 009. There is no housing construction or development work involved in the matter. This is nothing but an agreement for sale of 1000 sq. ft. constructed covered area of semi furnished (R.C.C. Structure only) ground floor situated at premises No.80/3, Mahatma Gandhi Road, Kolkata – 700 009. Therefore, it is clear that the case is related to simplicitor sale. This is nothing but an agreement for sale of 1000 sq. ft. covered area of semi furnished (R.C.C. Structure only) ground floor situated at premises No. 80/3, Mahatma Gandhi Road, Kolkata – 700 009 which relates to simplicitor sale and the complainant cannot be termed as a ‘consumer’ under section 2(7) of the Consumer Protection Act, 2019 and the opposite party is not also a service provider. The relationship between the complainant and the opposite party is simply termed as purchaser and seller. The dispute is not a consumer dispute. The complainant has not availed any service as per the provision of section 2(42) of the Consumer Protection Act, 2019.
7. In Ganeshlal Vs. Shyam reported in (2014) 14 SCC 773, Hon’ble Supreme Court has observed that :-
“Where a sale of plot of land simplicitor is concerned, and if there is any complaint, the same would not be covered under the Consumer Protection Act.”
8. In Brig. Davinder Singh Grewal and Anr. –Vs- R.S. Real Estate and Anr. reported in Volume III (2017) CPJ 304 (NC) Hon’ble National Commission has observed thus :
“In the instant case, it is manifestly clear that the agreement entered between the parties related to purchase of agricultural land, for which payment was made by the complainants to the OP sellers and a registered agreement as well as sale-deed were also executed. The OPs were supposed to provide a pucca passage to the said land and to deliver the possession after 42 months of the agreement. It is clear that the said activity does not fall under any item in the definition of ‘service’ as per Section 2(0) of the Act.”
9. In view of the above decisions and looking to the contents of the Memorandum of Agreement dated 17.08.2023 it appears that the transaction between the parties is simplicitor sale transaction. Therefore, the complainant is not a ‘consumer’ under section 2(7) of the Consumer Protection Act, 2019 and the opposite party is not a service provider under section 2(6) and 2(42) of the Consumer Protection Act, 2019. Therefore, the complaint case filed by the complainant is not maintainable in law and is liable to be dismissed.
10. In the result, the complaint case be and the same is dismissed without being admitted.
11. The complaint case is, thus, disposed of accordingly.
