FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The facts, as stated in the complaint and emerged from the documents attached with it are that the complainant had entered into an Agreement dated 30.04.2013 with the OP for purchasing a shop room measuring about 12 feet X 08 feet on the ground floor of KMC Premises No. N-146, Ballam Talab, Kolkata – 700024. Sale price of the booked shop room is Rs. 2,10,000/-. Complainant had already paid the entire sale price to the OP. Possession of the booked shop room is to be delivered within 06 months of the date of execution of the agreement dated 30.04.2013. A grace period of 08 months was also given to the OP. Despite several request the OP failed and neglected to handover physical possession of the shop room. Legal notice dated 06.12.2017 was issued to the OP who assured to refund the advanced amount by executing an undertaking dated 28.01.2018. Ultimately, the OP failed to fulfill his commitment. Alleging deficiency in service and unfair trade practice, complainant has prayed for handover physical possession of the shop room as per agreement dated 13.04.2013 alternatively, refund of Rs. 2,10,000/- along with compensation and litigation cost.
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 averment that the complaint is without jurisdiction and therefore, liable to be dismissed. Complainant did not implicate the landowners of KMC Premises No. N-146, Ballam Talab, Kolkata – 700024 as party to the instant case. The OP further contends that agreement dated 30.04.2013 is for tenancy right of the shop room at a monthly rental of Rs. 400/-. OP is the Power of Attorney Holder of the landowners and he also discharged his duties in terms of Power of Attorney. The answering OP is empowered to make construction of the building at premises No. N-146, Ballam Talab, Kolkata – 700024 and to induct new tenants to realize construction cost. Agreement dated 30.04.2013 was subsequently cancelled. Dispute in question 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. Thus, the OP has prayed for dismissal of the complaint.
Both parties have filed their E/chief supported by affidavit. Parties have also filed various documents in support of their respective case. Both parties have also filed their BNAs.
We have considered the argument advanced by the Ld. Advocates of both parties and have carefully gone through the record of the case including documents.
It is submitted by the Ld. Advocate for the OP that complainant is not a consumer under the definition of Consumer Protection Act and the complaint filed by the complainant could not have been entertained by the District Commission. The agreement dated 30.04.2013 is not an agreement for sale. Agreement dated 30.04.2013 was executed between the complainant and OP is a tenancy agreement. By virtue of Power of Attorney executed by the land lords of Premises No. N-146, Ballam Talab, PS-Metiabruz, 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. Complainant approached the OP to book one shop room measuring more or less 12 feet x 08 feet on the ground floor of the building. An agreement was executed and the tenancy will start from the date of delivery of possession of the shop room.
Clause 2 & 3 of the agreement dated 30.04.2013 go to show that the complainant shall have to pay construction cost of Rs. 2,10,000/- and he will pay rent of Rs. 400/- per month. It is true that the complainant has paid Rs. 2,10,000/- as construction cost to the OP. On perusal of the consumer complaint, we do not find any averment that the complainant used the shop room exclusively for the purpose of earning his livelihood, by means of self employment. According to section 2(7)(a) of CP Act, 2019 the expression “Commercial Purpose” does not include use by a person of goods brought and used by him exclusively for the purpose of earning his livelihood, by means of self employment. Thus, in our opinion the complainant is not a consumer under the definition of Consumer Protection Act, 2019.
The dispute is cognizable only by the Civil Court. The Ld. Advocate for the OP relied upon the judgment of the Hon’ble Supreme Court passed in Civil Appeal No. 502/1992 (Mrs. Laxmiben Laxmichand Shah Vs. Mrs. Sakerben Kanji – Chandan & Others), M/s Reliance General Insurance Co. Ltd. Vs. M/s Saas Bahu Selection, passed in First Appeal No. 263/2009 of the Hon’ble SCDRC, Punjab and Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. and Others passed in RP No. 1129/2022 of the Hon’ble NCDRC. On the other hand, the complainant fails to refer any decision of the Hon’ble Supreme Court and/or Hon’ble NCDRC and/or SCDRC in support of his case.
We have perused the above cited decisions of the Ld. Advocate for the OP. On those judgments it was held that there was relation of land lord 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 land lord falls under the definition. Therefore, the remedy of the complainant is not under the Consumer Protection Act, itself and he is to resort his other remedies despite execution of under taking dated 28.01.2018. In our opinion, the District Commission has no jurisdiction to entertain and decide the compliant.
For the aforesaid reasons, the Consumer Complaint is dismissed on contest against the OP. No order is made as to cost.
The consumer complaint could not be decided within the statutory period due to Covid – 19 pandemic.
However, this order will not debar the complainant to approach appropriate Civil Court having its territorial jurisdiction.
Copy of the judgment be provided to both parties as per rules. The judgment be uploaded forthwith on the website of the Commission for perusal of the parties.
