Date of filing: 30/05/2019
Date of Judgment: 10/07/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Sri Pritam Chatterjee under section 12 of the Consumer Protection Act, 1986 against opposite parties (referred as OPs hereinafter) namely (1) M/s. S.S. Construction and (2) Sri Soumitra Dasgupta alleging unfair trade practice and deficiency in service on the part of OPs..
Case of the complainant in short is that OP 1 is the proprietorship firm being represented by its proprietor OP No. 2 herein, who is also the owner. By an agreement for sale dated 21/11/2014 OP agreed to sell a covered garage-cum-office room as described in the schedule of the agreement at a consideration price of Rs. 9,00,000/-. Complainant has paid the entire consideration price. As per the terms of the said agreement, said covered garage-cum-office room was to be handed over and the deed of conveyance was to be executed and registered in favour of the complainant within 30 months from the date of the said agreement. But OP 2 intentionally delayed in completion of the construction and thus supplementary agreement dated 28/12/2017 was executed whereby a further period of 6 months was extended to deliver the possession of the said covered garage-cum-office room in complete inhabitable condition. But neither the possession has been handed over nor the deed has been executed and registered in favour of the complainant by the OP. So the present complaint is filed praying for directing the OPs to deliver the vacant khas possession of the said covered garage-cum-office room, to execute and register the deed of conveyance, to hand over completion certificate of the newly constructed building and to pay compensation of Rs. 5,00,000/- and litigation cost of Rs. 1,00,000/-.
OP has contested the case by filing the written version denying and disputing the allegation contending specifically that by a deed of gift executed in his favour by his mother, OP 2 became the owner of the said covered garage-cum-office room and has rented out the same to one Sadhya Shaw who runs beauty parlour in the name and style “Envey Me”. The said building wherein the said covered garage-cum-office room is situated is G+4 stored building and constructed several years back. It is further contended that complainant has construction business in the name and style “Anjali Trading Corporation” and complainant gave loan of Rs. 9,00,000/- to OP 2 and towards security the alleged agreement for sale dated 21/11/2014 has been executed. It is further contended that OP 2 has refunded a total sum of Rs. 7,00,000/- to the complainant on two occasions. The supplementary agreement dated 28/12/2017 and the letters dated 23/11/2014 are forged document and it has not been signed by OP 2. So the OP has prayed for dismissal of the case with cost.
During the course of the evidence both parties filed their respective examination in chief followed by filing of questionnaire and reply and ultimately both parties have filed the brief notes of arguments. However ultimately when the date was fixed to advance argument by the parties specially OP No. 2 as was prayed on behalf of OP 2, a notice along with petition was filed by the Ld. Advocate appearing for OP 2 that the OP 2 has not contacted him in spite of several intimation sent to him and he has informed to the said OP 2 that he was not in a position to continue to contest the case on his behalf. It appears that in spite of the said notice sent by the Ld. Advocate as OP neither appeared nor filed any intimation, the case was fixed for judgement.
So the following points require to be determined:
- Whether the complaint as maintainable under the provision of the Consumer Protection Act?
- Whether there has been any deficiency in rendering of service on the part of the OP?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
Point No. 1 : It is the specific contention of OP that the complainant is not a consumer under the provision of the Consumer Protection Act. According to him building in which covered garage-cum-office room is situated was constructed several years back. It is contended by OP 2 that his mother was running a grocery shop in the said covered garage-cum-office room and while doing so she gifted it to OP 2 by a deed of gift in the year 2003.
It may be pertinent to point out that to bring a case within the ambit of Consumer Protection Act, pre-requisite elements, is to purchase a good or hire or avail a ‘service’ on payment of consideration. So hiring of service as specified under section 2 (O) of Consumer Protection Act, 1986 (applicable at the time of filing of this case) is a pre-requisite element.
On perusal of the reply given by the complainant to the questionnaire put by OP 2, being question no. 6, as to whether the said property is a G+3 storied old building constructed several years back and all the flat owners of the building are residing there for years together, complainant has replied that the question is irrelevant and deserves no answer. In reply to the question No. 7 as to whether presently a beauty parlour is being run in the said covered garage-cum-office room on rent, the reply of the complainant is same that it is irrelevant and deserves no answer.
On a careful scrutiny of copy of the agreement dated 21/11/2014 it appears that it only states that vendor sell complete the said covered garage-cum-office room up to its unstable condition which indicates and supports the contention of the OP that it was readymade covered garage-cum-office room in a building which was constructed several years back. It is for the said reason only complainant avoided to reply specifically as to whether the building was an old building and only answered that the same was irrelevant. Complainant has not denied it that it is an old building where the said covered garage-cum-office-room was situated. So apparently the subject property in this case was readymade and already constructed covered garage-cum-office room and thus the transaction between the complainant and the OPs by agreement for sale dated 21/11/2014 was a simpliciter sale in respect of the said readymade covered garage-cum-office room. Since no “service” including house construction service as specified under provision of Consumer Protection Act 1986 was hired or availed by the complainant, complainant cannot be a consumer under the Consumer Protection Act.
It may further to be pointed out that as per the contention of the OP, said covered garage-cum-office room has been given on rent to one Sadhya Shaw and she is running a beauty parlour therein. In reply to the question put by the complainant as to whether in the said covered garage-cum-office room a beauty parlour is running, complainant has stated that the question is irrelevant and deserves no answer. So the complainant has not denied that the said covered garage-cum-office room is being occupied by tenant namely Sadhya Shaw. Said Sadhya Shaw has not been made a party in this case. Complainant has prayed for directing the OP to hand over the peaceful and vacant possession of the said covered garage-cum-office room and register the deed of conveyance in the name of the complainant but a tenant cannot be evicted without due process of law and to do the same, competent
Civil Court only has jurisdiction. However an opportunity could have been given to the complainant to add her as a party but since it is already highlighted above that it was a simpliciter sale of covered garage-cum-office room and no service was hired, there is no point to add said Sadhya Shaw as a party in this case. So the present complaint being not maintainable is liable to be rejected.
This point is thus answered accordingly.
Point No. 2 & 3: In view of the discussions highlighted above in Point No. 1, as the present complaint is not maintainable under the provision of Consumer Protection Act, these points becomes redundant and thus not discussed. .
Hence
ORDERED
CC/256/2019 is dismissed on contest. The interim order of injunction if any automatically stands vacated.
