Hon’ble President  :   Shri B.D. Nanda.

Hon’ble Member   :    Shri A.K. Pathak.

Petitioners -   Subir Ghosh,

                       son of late Sunil Kr. Ghosh,

                       of 3A, Raja Ram Das Lane,

                       & another.

O.Ps.         -    Kalpana Sur,

                      wife of Dr. Asoke Sur,

                        & another. 

Order No.    9                                                                                                           Date : 03.09.2015.  

          This date was fixed for passing order in respect of two petitions of non maintainability of the case filed by the o.p. no. 2. Heard the ld. Counsel at length on the two petitions.       

          The main contents of the first petition for non maintainability of the case is that in the instant case there was a transaction in respect of purchase and sale of a plot of land or in other words transaction related to sale simplicitor and there is no mention of housing construction and also the o.p. no. 2 took the money from the petitioner as a loan and so the same never comes under the purview of C.P. Act, 1986 and the case being non maintainable be dismissed with costs.

          The contents of the other petition show that the petitioner has not come before the Forum in clean hands as the  o.ps. of this case reside at 14P, Middle Road, Kolkata 7000 14, which is outside the jurisdiction of this Forum and so this Forum has no jurisdiction to deal with the case U/S 11 of the C.P. Act, 1986 wherein laid down that the District Forum shall have jurisdiction to entertain complaint where the cause of action arises within the legal limits of the District or where the o.p. voluntarily resides or where the o.p. carries on business as his branch office.

          This Forum heard the ld. counsel of both sides on the two petitions and keeping in mind the contents of the two petitions as well as the contents of the main petition and finds that in the first non maintainability petition the petitioner i.e., o.p. of this case submitted that there was dispute regarding sale of plot of land and the same does not come under the purview of C.P. Act, 1986 as the transaction was a sale simplicitor and not in respect of his housing construction or developing the property. This Forum finds that in the instant case petitioner advanced money for purchase of a plot of land but the o.ps. did not execute and register the sale deed and rather refused which compelled him to file the case. But here the petitioner purchased immovable property namely land  by paying consideration and the o.p. promised to execute and register the deed but did not do the same and thus the petitioner is a buyer of immovable property. U/S 3 of the C.P. Act, 1986 it is mentioned that the Consumer  Protection Act vests jurisdiction in the Consumer Fora to protect the interest of the consumers and the Act has given additional and extended jurisdiction to the Consumer Forum to provide remedy under the Act in addition to the other remedies provided in other acts unless there is a clear bar. This is the opinion of our Supreme Court in 2004 ( 1 ) SCC Page 305. It is fact that in the instant case the dispute arises on the sale of a plot of land which is located very much within  the jurisdiction of this Forum at Bantra P.S. It is true that the o.ps. do not reside within the jurisdiction of this Forum and they do not carry on business or having branch office within the jurisdiction of this Forum but the cause of action arises here because the land in dispute is located within the jurisdiction of this Forum.

          As regard cause of action in a catena of decision of our  Supreme Court it has laid down that it is a bundle of an essential facts which are necessary for the petitioner to prove and to succeed. Thus a cause of action means every fact which would be necessary for the petitioner to prove in order to support his right before a Court of Law. Thus the plot of land remaining within the jurisdiction of this Forum and having nexus with the cause of action this Forum has jurisdiction to deal with this case which is well maintainable before this Forum.

          Regarding the objection that this transaction is sale simplicitor this Forum finds that Section 3 of CP Act 1986, empowers the Forum to deal with this case to protect the interest of the consumer. Here the transaction being a sale only the  Forum has no jurisdiction to try this case wherein even if the petitioner has advanced money for purchase of the land. Forum had no jurisdiction to try the case as it is sale simplicitor. Our SCDRC also opined in the same time in the case of Mira Basu Vs Asok Kar wherein there was no stipulation for development of property by raising construction.

In view of above discussion and findings though there is cause of action shown in the petition yet the other maintainability petition on sale simplicitor is allowed as the petition is not a consumer.

Hence,

                        O R D E R E D

That the CC no. 639 of 2014 be and the same is dismissed as not maintainable.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.