Complainant through Lrd. Adv. Dube 

Opponent through Lrd Adv. Harsule 

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Per : Mr. V. P. Utpat, President              Place   :  PUNE

// J U D G M E N T //

(25/11/2013)

          This complaint is filed by the consumer against the service provider for deficiency in service under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows,

1]       The complainant had entered into an agreement with the opponent for purchasing land bearing plot no. 38, admeasuring 1 acre from survey no. 277/19, 277/15 situated at village Warak, Tal. Mulshi, Dist. Pune.  The total survey no. is admeasuring 91 acres.   The opponent is a private limited company dealing in land development.  On 14/1/1997 the said agreement was executed in favour of the complainant and opponent agreed for execution of sale deed of plot for Rs. 1,60,000/-.  On that day, an amount of Rs. 10,000/- was paid to the complainant by way of earnest money by cheque dtd. 29/4/1997.  The complainant was ready to pay balance amount of Rs. 1,50,000/- in installments as per clause of agreement.  The opponent has not informed about the development work of the said plot, hence no installments were paid by the complainant.  On 19/9/2009, the complainant came to know that certain construction activity was going on over the said land.  Hence, complainant asked the opponent to comply with the terms of the agreement to sale dtd. 10/7/1997.  He had issued notice to the opponent on 19/12/2009 along with the cheque of Rs. 1,50,000/-, but the opponent did not give response for the same, hence, complainant has filed present complaint for directing the opponent for the conveyance of the said plot.  The complainant has also asked damages of Rs. 19,00,000/- in the alternative along with the interest.

2]      The opponent resisted the claim by filing written version.  It has denied the contents of the complaint in toto.  The execution of the agreement, receipt of consideration and contents of the agreement are specifically denied by the opponent no. 1.  The opponent has also contended that this Forum has no jurisdiction to entertain and decide the present complaint, as the relation between parties is not ‘consumer’ and ‘service provider’.  The opponent had denied the contents as regards alternative prayer of damages of Rs. 19 lacs.  They have prayed for the dismissal of the complaint.

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-

REASONS :-

4]      The learned Advocate for complainant has argued before the Forum that the agreement between the parties as well as extract of the bank account of the complainant is sufficient to hold that there was agreement between parties and the opponent agreed to execute sale deed of the said plot.  As the opponent has started construction activity over the said plot, this fact itself is sufficient to hold that the opponent has denied the rights of complainant over the disputed land and hence the complainant is entitled for conveyance of the disputed property.  The learned Advocate for the opponent argued before me that the complaint is time barred as the alleged agreement was executed in the year 1997 and the present complaint is filed in the year 2010.  Moreover, as the dispute between parties is as regards land, that does not fall within the ambit of jurisdiction of Consumer Forum, as the relation between parties is not as ‘consumer’ and ‘service provider’.  In that context, learned Advocate for the opponent has strongly relied upon the Rulings of

1]       “Dinesh Chandra V/S Vijay Kumar Laws (NCD)”

 reported in 2003-10-105/CPJ-2004-2-468 NCDRC

          2]      “M.P. Kalavathi V/S Church of South India Trust

                    Asso Laws (NCD_ 2000-6-113 NCDRC

          3]      “Anil Kumar Shah V/S Madan Jana Laws (NCD)

                     1998-2-64/CPJ, 1998-2-372 NCDRC

          4]      “Mohan Co. Pvt. Ltd. V/S Santosh Yadav Laws (NCD)

                     2011-11-65/CPJ-2012-1-335 NCDRC

          5]      AIR 1987 SC 2328

          It reveals from the observations made in the above quoted judgments that, as the dispute between parties is relating to sale and purchase transaction of the land, i.e. immovable property and the remedy for the complainant is to file suit for specific performance of contract or for recovery of the amount in the Civil Court.  It has been observed in the above Ruling that,  “The first and foremost question requiring determination by this Commission is whether the dispute in question fell within the purview of ‘consumer dispute’ and whether the respondent-complainant could be termed as ‘consumer’ for the purpose of the Consumer Protection Act, 1986.  The answer is emphatic No.”  It has also observed that “the land can not be termed as ‘goods’.  There is no question of service while executing agreement for sale.  Hence, the relation between the parties is not as ‘consumer’ and ‘service provider’ and this Forum has no jurisdiction to entertain the present complaint”.

In the light of the above observations, it is crystal clear that the present complaint does not fall under the purview of jurisdiction of Consumer Forum and it further appears that the present complaint is time barred, as the complainant was not diligent.  Under these circumstances, I answer the points accordingly and pass the following order.

                                      **  ORDER **

1.                 Complaint stands dismissed with

no order as to the costs.

2.                 Copies of this order be furnished to

the parties free of cost.

                   3.       Parties  are directed to collect the sets,

which were provided for Members within

one month from the date of order, otherwise

those will be destroyed. 

Place – Pune

Date- 25/11/2013