Sri Partha Kumar Basu, Hon’bleMember:

This complaint petition is filed u/s 34(1), 34(2) (d), 35, 36 and 39 of the Consumer Protection Act’ 2019 at the instance of the Complainant for alleged deficiency of services on the part of the Opposite party in a consumer dispute of matter of land property.

The present complaint case is at the behest of the complainant Mr Kunal Sinha s/o Sanjay Sinha of 29 Kedar Chatterjee Road, Kolkata 700034 wherein the complaint petition as averred states that with an intention to purchase a 4 cottah of land from the OP Company (OP1) namely Sabir Pailan (SP company) of 42 Diamond Harbour Road, Joka, Kolkata 700104, the complainant paid a total amount of Rs. 7,60,000/- (Rs. Seven Lac Twenty Thousand) in part, on several occasions, latest vide money receipt no 3702 dated for Rs.15,000/-. Though the OP promised to get the scheduled land registered in favour of the complainant and received the total consideration money for the said plot on diverse dates but the OP who is under obligation to complete registration of the sold property, failed to do so. Due to non-fulfillment of the promise by the OP the complainant approached the OP for refund and the OP made part refunds for Rs. 4,00,000/- after a lapse of 12 months after causing much harassment to the complainant. Further repayments on behalf of the OP were made to complainant’s relative through another 5 cheques amounting to Rs.8,10,000/- in total, all of which got dishonoured due to insufficient fund. This has led the complainant to lodge this complaint with prayer for reliefs for a refund of  Rs 16,60,000/-, a compensation for Rs 4,65,000/- for harassment and mental agony caused by OPs and a Litigation cost.

The complainant exhibited all the relevant documents like money receipts, bank statements, copy of cheques tendered by M/s SP Developers on behalf of OP which got dishonoured etc.

The S/R in respect of the OP was duly completed when they contested the case by filing W/V. Both the sides filed BNA and advanced their arguments on the date of final hearing on 19.04.2024.

Due considerations were given to the submissions made by the Ld. Advocate of both the sides. After thorough scrutiny of the records, documents and exhibits in details, it appears from the records and documents as exhibited that there is no mention of any schedule or any property details or presence of any sale agreement or letter of intent or offer letter. Hence the vital ingredient in the exhibits are absent and there is no utterance that whether the OP is acting as a developer or a builder or a promoter or a service provider as such.

In absence of any contra indication in the documents available with evidentiary value, it  makes quite clear that the OP Company has sold away the plot and did not participate in the matter of any construction or super structures etc with this complainant. It needs to be borne in the mind that the sale of plot simpliciter is different from the plot sold by the builders or the promoters. We have also gone through the complaint petition and money receipts and OP’s documents but find no advertisement in print media or otherwise or brochure or document that the complainant claimed having exhibited in support as an evidence. From the entire factum of the case in hand, it is established to be a case of simply sale of plot of land by some persons on payment of a consideration money as the very nature of all the transactions show that it was a sale simpliciter and so this complainant can not be covered as a consumer under the Consumer Protection Act 2019.

The Hon'ble Supreme Court reported in "Ganeshlal S/o Motilal Sahu vs. Shyam " in Civil Appeal No. 331 of 2007 decided on 26.09.2013 and was pleased to hold:-

"6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of 'deficiency' as quoted above. We may, however, note that when it comes to "housing construction" , the same has been specifically covered under the definition of 'service by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993 with effect from 18th June, 1993.  That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act."

Consequently the complaint case be and the same is not maintainable before this commission and therefore the same is hereby dismissed. However there shall be no order as to cost.

Hence, it is

ORDERED

That the complaint case is dismissed being not maintainable before this commission.

However, liberty is given to the complainant to approach the appropriate forum for redressal of their grievances and the period of adjudication spent in this case shall be excluded for calculating the limitation period before other forums.

Let a copy of the order be sent / supplied free of cost to the parties concerned.

The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.  

Member