Date of filing : 20.07.2018
Judgment : Dt.27.08.2018
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of the C.P.Act, 1986 by Sanjay Kumar Mandal alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Mrs. Pranati Roy Chowdhury.
Case of the Complainant, in brief, is that the Complainant entered into an Agreement for Sale on 31.01.2011 with the OP for purchasing a flat on the ground floor and mazanine floor of a building constructed by the OP at premises No.388/1, Upen Banerjee Road, P.S.-Parnasree, Kolkata-700 060, who is also the owner of the said premises. The Complainant has stated that agreed consideration amount of the said flat was Rs.18,00,000/- out of which the Complainant paid Rs.13,00,000/- on different dates i.e. Rs.5,00,000/- on 11.1.2011, Rs.3,00,000/- on 15.1.2011, Rs.3,00,000/- on 20.1.2011 and Rs.2,00,000/- on 282.11.2011 and after payment of such amount Agreement for Sale was executed. The Complainant has further stated that even after expiry of six months the OP neither registered the Deed of Conveyance in favour of the Complainant nor did handover the possession of the said flat to the Complainant though the Complainant made several communications intimating the OP that he was ready to pay balance consideration amount but the OP paid no heed to that intimation and did not take any step to register the Deed of Conveyance in favour of the Complainant and, therefore, the Complainant by filing the instant Consumer Complaint prayed for direction upon the OP to register the Deed of Conveyance in favour of the Complainant and handover the same to the Complainant, to pay Rs.1,00,000/- towards compensation and Rs.50,000/- towards cost of litigation.
The Complainant annexed a copy of Agreement for Sale dt.31.1.2011. Notice was served upon the OP by way of paper publication but the OP did not turn up. Therefore, the case proceeded ex-parte vide order dt.9.4.2018.
The Complainant adduced evidence.
In course of argument Ld. Advocate for the Complainant filed brief notes of argument.
Decision with reasons
The Complainant claimed to have entered into Agreement for Sale with OP in respect of a flat and paid Rs.13,00,000/- out of total consideration of Rs.18,00,000/-. It appears from Agreement for Sale dt.31.1.2011 that the Agreement was executed by and between the parties on 31.1.2011 in respect of a residential flat on the ground floor and mezzanine floor consisting of two bed rooms, two toilets, one kitchen-cum-dining space.
On perusal of memo of consideration, it also appears that an amount of Rs.13,00,000/- has been paid by the Complainant to the OP towards consideration and balance consideration amount was to have been paid on the date of registration of the Deed of Conveyance or before registration of the Deed of Conveyance by draft/cheque/NEFT/RTGS/Cash and purchase would be completed within six months from the date of execution of the Agreement for Sale.
On further perusal of Agreement for Sale dt.31.1.2011, it appears that the OP vendor/owner was in absolute possession of the said flat since long and on receiving Rs.13,00,000/- towards earnest money from the intending purchaser handed over all copies of title Deeds and other documents and writings including Municipal Bill relating to the property in question which suggests that the Complainant entered into Agreement for Sale in respect of a complete flat.
Furthermore, no averment has been made by the Complainant in the petition of complaint that the flat in question to be constructed by the OP and a complete flat being immovable property cannot be considered as goods and no element of hiring housing construction service is involved therein.
In such view of the matter, we are of opinion that the instant case is not maintainable under the provision of the C. P. Act.
Hence
ordered
That CC/436/2018 is dismissed being not maintainable.
