Presented by:

Minakshi Chakraborty,  Presiding Member

BRIEF FACTS OF THE CASE :

This instant case has been filed by the complainants under section 35 of the Consumer Protection Act 2019. As per submission of the complainants, Smt. Premlata Munshi (herein after referred to as complainant 1) and Smt. Shilpa Munshi ( daughter in law of complainant 1) since deceased jointly intended to purchase one residential flat for their stay and expressed their intention to Smt Gouri Bhawani( herein after referred to as defendant) who expressed her desire to sale her flat in question one agreement for sale dated 30/4/2011 was entered into by and between the parties to purchase one residential flat at premises no.20, Salkia School Road , Howrah, Block-C, 5^th floor measuring about 930 sq ft super built up area more or less consisting of 2 bed rooms, one dining room, one kitchen, two toilets and one balcony at building Swapnalok along with undivided proportionate share of underneath land and other amenities and facilities attached together with right of egress and ingress over the main entrance and common right of user of passages, staircase, roof, water reservoir, septic tank and other common facilities and benefits attached thereto. The consideration for the said flat was agreed by and between the parties as Rs. 11,01,000/ .

The complainant no1 and Smt.Shilpa Munshi paid an advance of Rs. 1,01,000/ by check on 28.3.11 to the defendant for the purpose of completion of incomplete work of the flat , and as per submission of the complainant no.1 , after receipt of the said advance amount the OP completed the incomplete work inside the flat and make the flat in habitable condition.

After completion of construction work the OP delivered possession of the said flat to the complainant and her daughter in law on 19/6/11 and since then they are residing in the said flat in question with their family members. Both complainant no. 1 and her daughter in law repeatedly requested the OP to for execution and registration of the said flat in question but in vain. On 15/10/18 Smt Shilpa Munshi died intestate leaving behind fer husband Avisekh Munshi(herein after referred to as complainant 2) and minor daughter Janvi Munshi ( herein after referred to as complainant 3) as her legal heirs. After the sudden demise of Smt. Shilpa Munshi , complainant no. 2 requested the OP for execution of deed of conveyance in their favour but unfortunately the OP did not pay any heed to that.

Ultimately having no other alternative the complainants filed the instant case with a prayer to direct the OP to execute and register deed of conveynce in favour of the complainants , to award compensation to the tune of Rs. 2,00,000/ for harassment, mental agony , financial loss, and to award Rs. 50,000/ as litigation cost.

DEFENCE CASE:

Inspite of receiving notice the opposite party did not appeared for which the case was running ex parte against the OP.

Evidence on record

The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.

Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

Complainants filed the instant case against the opposite party on the ground that , Smt. Premlata Munshi (herein after referred to as complainant 1) and Smt. Shilpa Munshi ( daughter in law of complainant 1) since deceased jointly intended to purchase one residential flat for their stay and expressed their intention to Smt Gouri Bhawani( herein after referred to as defendant) who expressed her desire to sale her flat in question one agreement for sale dated 30/4/2011 was entered into by and between the parties to purchase one residential flat at premises no.20, Salkia School Road , Howrah, Block-C, 5^th floor measuring about 930 sq ft super built up area more or less consisting of 2 bed rooms, one dining room, one kitchen, two toilets and one balcony at building Swapnalok along with undivided proportionate share of underneath land and other amenities and facilities attached together with right of egress and ingress over the main entrance and common right of user of passages, staircase, roof, water reservoir, septic tank and other common facilities and benefits attached thereto. The consideration for the said flat was agreed by and between the parties as Rs. 11,01,000/ .

The complainant no1 and Smt.Shilpa Munshi paid an advance of Rs. 1,01,000/ by check on 28.3.11 to the defendant for the purpose of completion of incomplete work of the flat , and as per submission of the complainant no.1 , after receipt of the said advance amount the OP completed the incomplete work inside the flat and make the flat in habitable condition.

After completion of construction work the OP delivered possession of the said flat to the complainant and her daughter in law on 19/6/11 and since then they are residing in the said flat in question with their family members. Both complainant no. 1 and her daughter in law repeatedly requested the OP to for execution and registration of the said flat in question but in vain. On 15/10/18 Smt Shilpa Munshi died intestate leaving behind fer husband Avisekh Munshi(herein after referred to as complainant 2) and minor daughter Janvi Munshi ( herein after referred to as complainant 3) as her legal heirs. After the sudden demise of Smt. Shilpa Munshi , complainant no. 2 requested the OP for execution of deed of conveyance in their favour but unfortunately the OP did not pay any heed to that.

Now the vital question arises in the mind of this commission is that whether the complainants are consumers or not as per definition given in the Consumer Protection Act 2019.

According to section 2(7) of the Consumer Protection Act 2019, consumer means a person who buys any goods for a consideration which has been paid. In that view of the matter in this perspective whether the present complaint can be attended to. A  glance over the complaint itself indicates in its own words, namely, “ violation of terms of agreement for sale dated 30/4/2011”, In the above view of the matter we are bound to give a careful look to the agreement itself para2 of which indicates that a part consideration of money of Rs 1,01000/ was paid through cheque no. 03925 dated 20/2/2011 and the rest consideration amount of Rs. 10,00000/ as full and final consideration money by way of  two bank drafts which the vendor has admitted and acknowledge, “ ………. And there after the vendor delivered the peaceful khas possession of the subject flat to the purchaser immediately after execution of this agreement………..”.

Now on consideration of the above facts whether the complainants can be said to be consumer in the strict sense of the term of section 2 (7) of the Act apparently it appears that the OP intended to deliver the said flat on payment of consideration of Rs. 11,01000/ and in four corners of the agreement itself do nowhere disclose about any payment of Rs. 1,01000/ in order to complete the incomplete inside work of the flat in order to make the same habitable. In as much as the OP has failed to execute and register the deed of conveyance of the concerned flat in favour of the complainants, the petitioners have filed the instant application being CCno 173 of 2021 before this commission.

Now, in view of the above perspective whether this commission has jurisdiction to entertain the present complaint is the prime consideration. Apparently it appears that it is nothing but “sale” of the flat in question and for this reason whether the same can lead the complainants to institute the present complaint and this commission is inclined to submit whether there is any primary deficiency from the part of the vendor. It apparently appears the matter exclusively rest on the execution and registration of the deed of conveyance which the title of the complaint apparently indicates. Accordingly when the petition relates to the sale of the flat simplicitor is concerned this commission is inclined to hold that the present application under the present Act is not maintainable. The word sale indicates that the transfer of ownership of immovable property. A perusal of the agreement itself indicates that the price for the flat has already been paid and nowhere in the said agreement there is any whisper with regard to any kind of service and that is why the present petition should be taken on a different footing. On the whole when the matter exclusively rests only over the sale of the flat the same would not be covered under the word service. That being so this commission is constrained to hold that such instant application cannot be entertained and acted upon which is exclusively covered under the Transfer of Property Act and thus this commission cannot usurp of the jurisdiction of the present commission and the instant application does not appear to be entertainable by this commission rather it is the exclusive jurisdiction of the civil court to entertain this matter.

On consideration of the above discussion this commission is constrained to hold that the present petitioners cannot be termed as consumers in view of section 2(7) of the Act.

This issue is thus dispose of.

Issue numbers 2,3 and 4 do not appear to be matter of discussion obviously in view of above discussion.                    

                                                  O R D E R E D

That the Complaint case no 173 of 2021 be and the same is dismissed exparte against the OP.

Complainants are given liberty to file the case before the appropriate forum with same cause of action.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website The word file is drafted and corrected by me.

(Minakshi Chakraborty)

          Member

D.C.D.R.C., Howrah