FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

The brief facts of the case are that complainant Jabeda Khatun, since deceased book a flat measuring about 240 sq. ft.  on the ground floor of KMC  Premises No. N-146, Ballam Talab, Garden Reach, Kolkata-700024. An agreement dated  10.12.2012 was executed between the complainant, since deceased and the OP. Sale Price of the booked flat is Rs. 2,68,800/-. Deceased complainant has already paid Rs.  2,62,000/- to the OP. Possession of the booked flat is promised within  09 months of the date of execution of the agreement. A grace period of 12 months was also given to the OP. Despite several request the OP failed and neglected to handover physical possession of the booked flat. Legal Notice was issued  to the OP who assured to refund the advanced amount of booking by executing an undertaking but failed to fulfill his commitment. Her claim is that the OPs action constitutes deficiency in service and unfair trade practice for which she seek to be compensated. During pendency of the consumer complaint sole complainant Jabeda Khatun died and her legal heirs has been substituted vide order dated 27.02.2019.

            The OP has contested the complaint as being devoid of any cause of action. He avers that the complainant is not a consumer under the provision of  Consumer Protection Act. It is also his avernment that the complaint is without jurisdiction and therefore, liable to be dismissed. Complainant did not implicate the landlords of KMC Premises No. N-146, Ballam Talab, Garden Reach, Kolkata-700024 as party to the present case. The OP further contends that agreement dated 10.12.2012 is for tenancy right of the flat at a monthly rent of Rs.  240/-. OP is the Power of Attorney holder of the landlords and also discharged his duties in terms of the power of attorney. He is empowered to make construction of the building on the premises of the land lords and to induct new tenants to realize construction cost. Agreement for Sale was subsequently  cancelled. The subject dispute is purely civil in nature and the Civil Court having jurisdiction to deal the dispute. There is no unfair trade  practice and deficiency in service with reference to the allegations in the complaint. Finally it is also alleged that the complaint is barred by limitation as it is filed in 2018 whereas the cause of action occurred more that six years ago.

            Substituted complainants and OP have filed their Affidavit of Evidence. Complainants have filed various documentary evidence. OP has also filed his written argument.

            We have considered the argument and have carefully gone through the records of the case.

            It is submitted by the Ld. Advocate for the OP that the complainant, since deceased does not fall under the definition of consumer as contained in the Act and the complaint filed by her could not have been entertained by the District Consumer Disputers Redressal Commission. The Agreement dated 10.12.2012 is not an Agreement for Sale. Agreement dated 10.12.2012 was executed between the original complainant Jabeda Khatoon, since deceased and the OP is a tenancy agreement. By virtue of Power of Attorney executed by the landlords of KMC Premises No. N-146, Ballam Talab, Garden Reach, Kolkata-700024 the OP was entrusted to construct a building upon the above premises and to induct new tenants to realize construction cost of the building. Substituted complainants’ mother approached the OP to book one flat measuring about 240 sq. ft. on the ground floor of the building. An agreement was executed and the tenancy will start from the date of delivery of possession.

            Clause 2 & 3 of the Agreement dated 10.12.2012  go to show that the mother of the substituted complainants’  shall have to pay construction cost of Rs. 1,120/- per sq. ft. and she will pay rent  at the rate of Rs. One per sq. ft. Clause -9 of the agreement goes to show that mother of the substituted complainants is liable to pay monthly rent according to English Calendar. Thus, the dispute is cognizable only by the Civil Court. The Ld. Advocate for the OP relied upon the judgment of the Hon’ble NCDRC  reported in  1992 CPJ  29 titled as Mrs. Laxmiben Laxmichand Shah Vs. Mrs. Sakerben Kanji Chandan and the judgment of Hon’ble Supreme Court reported in  (2001) 9 Supreme Court Cases 604 titled as Laxmiben Laxmichand  Shah Vs. Sakerben Kanji Chandan. On the other hand, substituted complainants fail to refer any decision of the Hon’ble Supreme Court and/or Hon’ble NCDRC in support of their case.

            It was held that there was relation of landlord and tenant between the parties, and the tenant does not fall under the definition of consumer. If the tenant does not fall under the definition of the consumer how it can be held that the landlord  falls under the definition. Therefore, the remedy of the complainants is not under the Consumer Protection Act,  itself and they are to resort their other remedies despite execution of undertaking dated 28.01.2018. In our opinion, the District Consumer Disputes Redressal Commission has no  jurisdiction to entertain and decide the complaint.

            For the aforesaid reasons, the consumer complaint is dismissed on contest against the OP. However, no order is made as to costs.

            The consumer complaint could not be decided within the statutory period due to covid-19 pandamic.

            Certified copies of this judgment be provided to both parties as per rule. The judgment be uploaded forthwith on the website of the Commission for perusal of the parties.