HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The complainant Sk. Tohidur Rahaman has filed this petition of complaint praying for the following reliefs :- 

“i) For direction upon the Opposite Parties to execute and register the Deed of conveyance in respect of the demised flat as mentioned in schedule ‘B’ written hereunder in terms of agreement for sale dated 01.09.2022 in favour of the complainant on payment of balance of consideration, within the stipulated period as directed by the Hon’ble Commission. If the Opposite Parties fail to execute and register the Deed of Conveyance/s in favour of the complainant within the period stipulate by the Hon’ble Commission, the complainant may be directed for execution and registration of the Deed of Conveyance/s in his favour through the Hon’ble Commission;

ii) For direction upon the Opposite Party No. 1 to hand over sanction plan of the third floor and completion certificate duly approved by the Kolkata Municipal Corporation of the multi-storied building upon the schedule ‘A’ property in favour of the complainant;

iii) For an order upon the Opposite Parties to pay compensation of Rs.1,00,000/- to the complainant for his mental pain, harassment and agony;

iv) For all litigation costs of the instant case.

v) For other relief or reliefs which the complainant is entitled to.”

2. It is the case of the complainant that originally the predecessor in interest of the opposite party Nos. 2 to 4 namely Byomkesh Mukherjee and his wife Lakshmi Mukherjee became the joint owners of the property situated and lying at 8D, Dargah Road, P.S. Beniapukur, Kolkata  - 700 017 within the limits of Kolkata Municipal Corporation under Ward No. 64. During the possession and enjoyment of the 'A' schedule property the said Byomkesh Mukherjee and his wife Lakshmi Mukherjee both died leaving behind the present opposite party Nos. 2 to 4 being the legal heirs of the deceased Byomkesh Mukherjee and Lakshmi Mukherjee. 

3. Further case of the complainants are that the opposite party Nos. 2 to 4 mutated their names in the Kolkata Municipal Corporation. During possession and enjoyment of the said property mentioned in the schedule 'A' the said opposite party Nos. 2 to 4 entered into a development agreement on 14.09.2011 for the development of the said property.  As such, the opposite party Nos. 2 to 4 handed over the possession of the said property in favour of the opposite party No. 1 for its development for construction of the residential flats in terms and conditions of the said development agreement embodied therein. 

4. It is also the case of the complainants that after execution of the said development agreement dated 14.09.2011, the opposite party Nos. 2 to 4 being land owners executed a registered Power of Attorney on 19.04.2012 in favour of the opposite party No. 1 developer for the purpose of developing of the premises. On the basis of the said development agreement dated 14.09.2011 and registered Power of Attorney dated 19.04.2012 the opposite party No. 1 obtained sanctioned building plan issued by the Kolkata Municipal Corporation. Subsequently, the opposite party No. 1 entered into an agreement for sale on 01.09.2022 with the complainant for selling one self contained flat measuring about 1422 sq. ft. more or less super built up area out of his own allocation on the second floor. The consideration money was fixed at Rs.84,00,000/-  (Rupees eighty-four lakh only). Out of Rs.84,00,000/- the complainant paid Rs.73,00,000/- (Rupees seventy-three lakh only) towards earnest money to the opposite party No. 1. Record goes to show that the complainant has not filed any document to prove that the said Byomkesh Mukherjee and his wife Lakshmi Mukherjee were joint owners of the property situated and lying at 8D, Dargah Road, P.S. Beniapukur, Kolkata- 700 017. The complainant also has not filed any paper and / or documents to prove that the said Byomkesh Mukherjee and his wife Lakshmi Mukherjee were in possession and enjoyment of the said 'A' schedule property.  The complainant also has not filed any document to prove that the names of the opposite party Nos. 2 to 4 were mutated in the Kolkata Municipal Corporation register. The complainant has not filed any paper to prove that the opposite party Nos. 2 to 4 entered into a development agreement on 14.09.2011 in respect of the said 'A' schedule property with the opposite party No. 1 developer. The complainant also has not filed any paper to prove that the opposite party Nos. 2 to 4 handed over the possession of the said property in favour of the opposite party No. 1 for the development of the property.  The complainant has not also produced any document to prove that the opposite party Nos. 2 to 4 being the land owners of the 'A' schedule property  executed a registered Power of Attorney on 19.04.2012 in favour of the opposite party No. 1 developer for the purpose of developing of the premises mentioned in the schedule 'A'.

5. The complainant also has not filed building sanction plan which was allegedly issued in favour of the opposite party No. 1. The complainant has only filed agreement for sale dated 01.09.2022 executed between the complainant and the opposite party No. 1. On perusal of the said agreement for sale dated 01.09.2022 it appears to me that the agreement was executed for execution of sale deed of immovable property and prior to registration of sale deed full consideration will be paid by the complainant at the time of the registration. From bare perusal of the said agreement for sale, it appears to me that the transaction is simplicitor sale transaction. 

6. In Ganeshlal - Vs - Shyam reported in (2014) 14 SCC 773, Hon'ble Supreme Court has observed that : - 

" Where a sale of plot of land simplicitor is concerned, and if there is any complaint, the same would not be covered under the Consumer Protection Act."

7. In Brig. Davinder  Singh Grewal and Anr. - Vs. R.S. Real Estate and Anr. reported in Volume  III (2017) CPJ 304 (NC) Hon'ble National Commission has observed thus :- 

"In the instant case, it is manifestly clear that the agreement entered between the parties related to purchase of agricultural land, for which payment was made by the complainants to the OP sellers and a registered agreement as well as sale-deed were also executed. The OPs were supposed to provide a pucca passage to the said land and to deliver the possession after 42 months of the agreement.  It is clear that the said activity does not fall under any item in the definition of 'service' as per section 2(0) of the Act".

8. In view of the above decisions and looking to the contents of the agreement dated 01.09.2022 executed between the complainant and opposite party No. 1, it appears to me that the transaction between the parties is simplicitor sale transaction.  Therefore, the complainant is not a 'consumer' under section 2(7) of the Consumer Protection Act, 2019 and the opposite parties are not service provider(s) under section 2(6) and 2(42) of the Consumer Protection Act, 2019. This apart, it appears to me that to prove the case the complainant has not filed any cash memo  and / or money receipts to prove that the complainant paid Rs. 73,00,000/- out of total consideration of Rs.84,00,000/-. Therefore, it may be concluded that the complainant has failed to prove that he is a 'consumer' by providing proof of payment.  So, the complainant cannot file a case in the Consumer Commission.  Therefore, I am of the view that the complainant cannot file a case in the Consumer Commission.  

9. Under these facts and circumstances and on consideration of the materials on record, I am of the view that the complaint case cannot be admitted. Consequently, I decline to admit the complaint.  The complaint is dismissed accordingly with liberty to the complainant to file the complaint case before the proper Forum for redressal of his grievance.  

10. The complaint case is thus disposed of accordingly.