HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint under section 47 read with section 34 of the Consumer Protection Act, 2019 (in short, ‘the Act’) is at the instance of the complainant Sri Utpal Majumdar against the opposite parties on the allegation of deficiency in service on the part of the opposite parties in a consumer dispute of housing construction.

2. The fact of the complaint case in short is that the opposite party No. 1, Greentech IT City Pvt. Ltd. is a registered company carrying out real estate business and the opposite party Nos. 2 & 3 are the Directors and share holders involved in the daily affairs of the company. One Bidyut Das booked a villa (Unit No. AGV-33) in Greentech IT City Aqua Golf Villa, Phase – I measuring 2500 sq. ft. with the opposite parties. As such, Bidyut Das and Sonali Das entered into an agreement for sale on 18.08.2015 for ₹1,60,00,000/- (Rupees one crore and sixty lakh only).

3. Further case of the complainant is that the complainant was interested in purchasing a villa at Vedic village and, accordingly, contacted with Bidyut Das. Subsequently, on 25.07.2018 Bidyut Das and Sonali Das assigned their rights in the said unit to the complainant.

4. It was accepted by the opposite parties on 04.08.2018. The complainant agreed to take the assignment of the said unit from Bidyut Das and Sonali Das after conducting the required due diligence and meeting with the opposite parties.

5. Further case of the complainant is that the opposite parties failed to deliver the possession and there was no positive sign of the project completion within the stipulated period of time.

6. Further case of the complainant is that on 05.03.2019 the complainant made an additional payment of ₹12,28,891/- (Rupees twelve lakh twenty eight thousand eight hundred and ninety one only) to the opposite parties aggregating the total payment to ₹98,30,538/- (Rupees ninety eight lakh thirty thousand five hundred and thirty eight only). The complainant paid a sum of ₹98,30,538/- out of total consideration amount of ₹1,60,00,000/-. Since, the opposite parties failed to complete the construction and hand over the possession of the unit, the complainant sent a demand letter on 29.03.2021 but the opposite parties did not comply the requirements of the said letter. As such, the complainant approached this Commission with a prayer for the following reliefs :-

“a) To admit this complaint case and issue notice to the opposite parties, directing them to show cause as to why the prayer of the complainant should not be allowed.

b) The opposite parties are jointly and severally directed to refund the amount of Rs.3,30,537/- along with 18% interest from 2014 until its realization.

c) Direct the opposite parties to pay a compensation of Rs.50,00,000/- (Rupees fifty lakh only) and litigation cost of Rs.5,00,000/- (Rupees five lakh only).

d) Pass such further and/or other reliefs as your Honour may deem fit and proper.”

7. Heard the Learned Advocate appearing for the complainant at length and in full on the points of admission.

8. Having heard the Learned Advocate appearing for the complainant and on perusal of the record and the alleged letter of assignment it appears to me that Bidyut Das and Sonali Das entered into an agreement for sale with the opposite party No. 1 to purchase a villa ( unit No. AJV 33) in Greentech IT City Aqua Golf Villa, Phase-I of 2500 sq. ft. at a consideration of ₹1,60,00,000/-.

9. It also appears to me that subsequently, said Bidyut Das and Sonali Das assigned their rights of the said unit to the complainant.

10. On careful perusal of the copy of the said letter of assignment dated 25.07.2018 it appears to me that the said letter of assignment dated 25.07.2018 executed by Bidyut Das and Sonali Das is not a registered document. Section 17 of the Registration Act, 1908 runs as follows :-

“(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent...”

11. From the above it is clear that compulsory registration of letter of assignment is required as per provision of section 17(1)(b) of the Registration Act, 1908.

12. This apart, on careful perusal of the alleged letter of assignment it appears to me that there is no whisper in the said letter of assignment dated 25/07/2024 that both Bidyut Das and Sonali Das granted letter of assignment in favour of the complainant in respect of the Villa (unit No. AGV-33) in Greentech IT City Aqua Golf Villa, Phase-I measuring about 2500 sq.ft. Therefore, the said letter of assignment did not disclose about the unit which were given to Utpal Majumdar through letter of assignment dated 25.07.2018.

13. Now, I shall have to consider as to whether the complainant is a consumer and there has been any deficiency in service by the opposite parties. Section 2(7) of the Consumer Protection Act, 2019 runs as follows :-

“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 service 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 service 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 service for any commercial purpose.

For the purposes of this clause,-

(a) the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b) the expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

14. The Hon’ble Apex Court in a case between Oberoi Forwarding  Agency Vs. New India Assurance Co. Ltd. & Anr. as decided on 01/02/2000 which are reproduced as under :-

“Now, as is clear, the loss of the consignment had already occurred. All that was assigned and transferred by the second respondent to the first respondent was the right to recover compensation for the loss. There was no question of the first respondent being a beneficiary of the service that the second respondent had hired from the appellant. That service, namely, the transportation of the consignment, had already been availed of by the second respondent, and in the course of it the consignment had been lost. The first respondent, therefore, was not a consumer within the meaning of the Consumer Protection Act and was, therefore, not entitled to maintain the complaint.

By reason of the transfer and assignment of all the rights of the second respondent in the first respondents favour, the second respondent retained no right to recover compensation for the loss of the consignment. The addition of the second respondent to the complaint as a co-complainant did not, therefore, make the complaint maintainable.”

15. In such a situation, I am inclined to hold that the complainant is not a consumer and there is no deficiency by the opposite parties. The complainant has been unable to prove it. Therefore, the complainant could not maintain the complaint case under the Act.

16. In view of the discussion above and considering the materials available on record I hold that letter of assignment is totally vague and it cannot be acted upon.

17. Right to transfer of any immovable property cannot be acted upon in such a fashion.

18. In the result, the complaint case be and the same is dismissed without being admitted.

19. The complaint case is thus disposed of accordingly.