Presented by:
Minakshi Chakraborty, Presiding Member
BRIEF FACTS OF THE CASE :
The instant case has arisen out of a petition of complainant filed bythe complainant under section 12 of the Consumer Protection Act,1986. As per submission of the complainant, she entered into an Agreement with O.P. no.1on 27/04/2015 for booking of one shop room being room no. 2 (Middle), Ground Floor, in front of roadside of Domjur- Jagadishpur Road measuring about 7.50 ft x12 ft situated within RS/Old Dag no. 49, L.R. Dag No.65 Khatian No.2532 Mouza P.O. and P.S..-Domjur District – Howrah.
The Agreement was made for a total consideration of Rs.27,50,000/- out of which initially Rs.5,00,000/- was paid on 19/08/2014 and Rs.10,00,000/- on 27/04/2015. O.p. no.1 agreed to hand over possession after fitting shutter gate of the shop room and O.p. no.1 further agreed to handover the key to the petitioner. As per submission of the complainant in spite of the completion of the said shop room and fixing the shutter gate complainant, on several occasions requested O.p. no.1 to handover the possession of the said shop room but O.p. no.1 did not pay any heed to that for which the complainant compelled to sent advocate’s notice to the O.p. no.1 on 01/11/2019. The complainant verbally requested the O.p. no.1 to handover the possession which O.p. no.1 refused for which O.p. no.1 is guilty of deficiency of service and complainant constrained to file the instant C.C. case with a prayer for directing the O.p. no.1 to handover the possession of the said shop room alongwith other prayers.
DEFENCE CASE:
Though w.v. have been filed by all the O.ps. but as those were filed after the statutory period for which the written versions filed by O.ps. were rejected and this Commission vide its order dated 17/12/2021 fixed date for ex-parte hearing.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition. The case is running ex-parte against all the O.ps.
Argument highlighted by the ld. Lawyers of the parties
Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
The pivotal issue involved in the instant case is whether the complainant is a consumer or not. In this case as per submission of the complainant she entered into an agreement with OP no. 1 on 27/04/2015 for the purpose of delivery of possession of a shop room as stipulated in the said agreement. On minutely perusal of the clauses of the said agreement including the evidence of the Complainant, it appears that as per the said agreement the OP1 intended to deliver possession of said shop room being no. 2 (middle) of 07.50 ft. x 12 ft. in terms of the specified amount of Rs.27,50,000/ as consideration money for sale of the possession thereof or advance with the monthly rent of Rs. 3/- (Rupees three only) per square ft. while the complainant/petitioner agreed to the terms/clauses of the said agreement dated 27.04.2015 to pay the said stipulated amount part by part as per the clauses thereof till delivery of the possession of the said shop room and since delivery of possession monthly rent shall be paid as agreed between the complainant and OP1. It is therefore, as a whole the agreement in question itself leads to hold that the title of the agreement and a clause of the page no. 2 of said agreement though swayed to trace the agreement as an agreement for sale of possession yet all other clauses in esse ultimately had patently revealed to believe that the agreement has been for delivery of possession in terms of said stipulated advance (Salami) on the specified monthly rent and hence transpiring to a tenancy agreement.
In such facts and circumstances, the prayer of the petitioner/complainant is to give direction to the OP1 to handover the possession of said stipulated shop room or alternatively order to refund the entire earnest money within a specified time with a further direction to OP1 for damages for mental agony and pain and litigation cost.
So far as the Consumer Protection Act, 1986 concerned, the main object of the act is to protect the interest of the Consumer and make them aware of their rights. According to Section 2(d) of the Consumer Protection Act, 1986,
“Consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].
Accordingly from the definition of ‘Consumer’ it is crystal clear that any person who obtains any goods or any services for any commercial purpose is not coming within the Zone of consideration of Consumer. Further the complainant herein herself prays for handing over the possession of a stipulated shop room being shop room no. 2 (middle) to her in view of the said agreement dated 27.04.2015 on monthly rent of Rs.3/- (Rupees three only) per sq. ft. as admittedly agreed between the complainant and OP1.Therefore, this is evidently a case of tenancy. So, complainant herein is not a consumer at all and accordingly this Commission does not have jurisdiction with regard to the instant dispute. This issue is thus disposed of. As the complainant is not a consumer, other issues need not be discussed. Complainant is miserably failed to prove her case. All the issues are thus disposed of.
Hence,
ORDERED
That the Complaint case No.382 of 2019 be and the same is dismissed ex-parte. No order is passed as to cost.
Complainant is on liberty to move before the appropriate Forum with same cause of action.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website The word file is drafted and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.C., Howrah
