Date of filing :15.01.2018

Judgment : Dt.26.8.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Pradip Kr. Gupta alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shyamsundar Singh, (2) Smt. Krishna Biswas and (3) Sachindranath Biswas.

            Case of the Complainant, in short, is that the Complainant by profession is a qualified Yoga Therapist and by way of teaching Yoga therapy to the intending persons, he maintains his livelihood and of his family members. For the purpose of self employment as Yoga Therapist, he entered into an agreement dt.9.10.2013 with the OP No.1 who is also a Constituted Attorney of OP No.2 & 3, the land owners, to purchase a commercial space/shop measuring about 200 sq.ft. carpet area on the first floor in the KMC Premises No.176, Kanungo Park, P.O.-Garia, P.S.-Patuli, at a consideration of Rs.16,00,000/. A development agreement was entered into between the OP No.1 the developer and the OP No.2 & 3 on 27.1.2012 and on the same date a general power of attorney was also executed in favour of OP No.1 by the OP No.2 & 3. As per the agreement, possession of the said commercial space/shop was to be handed over within 18 months from the date of execution of the agreement. But the possession of the said space has not been handed over to the Complainant nor the deed of conveyance has been executed. The Complainant has paid to the OP No.1 a total amount of Rs.15,50,000/- out of consideration of Rs.16,00,000/-. Ultimately a notice has been sent to the OPs by the Complainant through his Ld. Advocate dt.16.8.2017, but all in vain. So, the present complaint has been filed for directing the OPs to deliver the B Schedule commercial space/shop in useable condition and to execute and register the Deed of  Conveyance in respect of the said commercial space in favour of the Complainant on receipt of the balance consideration of Rs.50,000/-, in alternatively to refund the earnest money of Rs.15,50,000/- together with interest @ 18% p.a., to pay compensation of Rs.1,00,000/- towards mental agony and harassment and litigation cost of Rs.50,000/-.

            Complainant has annexed with the complaint petition, copy of license, copy of the agreement dt.9.10.2013 entered into between the parties, money receipts, copy of the notice sent to the OPs dt.16.8.2017 and copy of the reply sent by OP No.2 & 3 dt.28.8.2017.

            OP No.1 has contested the case by filing the written version denying and disputing the allegations made in the complaint petition, contending inter alia that the Complainant is not a consumer under the definition provided under the C.P.Act as he is running the said business purely for the commercial purpose and for earning of profit. Complainant has purchased the entire 3^rd floor in the same building by another agreement and he has also paid an amount of Rs.43,50,000/- in cash towards the purchase of that entire 3^rd floor. The Complainant is running the Yoga Centre with the help of Yoga Professionals engaged by him on pay roll. Complainant is also engaged in the business of money lending. So, the Complainant being not a consumer, present case is liable to be dismissed.

            OP No.2 & 3 have also contested the case by filing the written version, contending inter alia that the Complainant is not a consumer under the provision of the C. P. Act as any activity or the transaction for the purpose of profit making becomes commercial. The Complainant not only agreed to purchase the commercial space in the present agreement, he has also agreed to purchase the entire 3^rd floor. However, it is the specific case of the OP No.2 & 3 that they did not have any knowledge whether the OP No.1 had received the sum of Rs.15,50,000/- from the Complainant. It is further stated that if directed they are agreed to execute the deed. Subsequently, OP No.2 & 3 have also prayed for dismissal of the complaint.

            During the course of the evidence both the respective parties have adduced their evidences followed by filing questionnaire and reply thereto. Ultimately, both the parties have advanced their arguments and have also filed the BNA.

            Ld. Advocate appearing for OP No.1 as well as for OP No.2 & 3 have mainly emphasized on the point that the Complainant is not a consumer as he is dealing purely with commercial activities for the purpose of earning profits and has paid a total amount of Rs.59,00,000/- in cash, as per the two agreements entered into between the OP No.1 and the Complainant. Ld. Advocate appearing for OP No.1 has argued that mere mentioning of the fact that he is engaged in the said business only for the purpose of earning his livelihood is not sufficient. She has relied upon two case laws reported in CPJ 2019 (II) NC 169 and AIR 1995 SC 1428.

            So in the back drop of the case of both the parties, following points require to be considered.

            i) Whether Complainant is a consumer under the C.P.Act?

ii)Whether there has been any deficiency in service on the part of the OPs?

iii)Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

            Point No.1

            It is the main contention of the opposite parties that the Complainant is not a consumer under the provision of C.P.Act as the transaction for sale/purchase is for commercial space/shop. In this case, admittedly Complainant entered into agreement with OP No.1 who is also the constituted attorney of the owners/OP No.2 & 3, to purchase a shop room measuring about 200 sq.ft. carpet area at premises No.176 Kanungo Park, at a total consideration of Rs.16,00,000/-, out of which admittedly Complainant has paid Rs.15,50,000/-to the OP No.1/developer. This is also not denied that Complainant is a Yoga Therapist and runs yoga centre of teaching yoga. Complainant has also filed the license. But the moot question is whether the transaction to purchase the commercial space in this case is for the purpose of earning livelihood by way of self employment, as claimed by the Complainant or it is purely for the purpose of earning profits and to expand his business?

            It appears that Complainant in this case, has also entered into another agreement to purchase commercial space measuring 1650 sq.ft. carpet area at ground floor in the building at premises No.191, Tegharia, Sonarpur at a consideration price of Rs.50,00,000/- out of which he has paid Rs.29,40,000/- in cash. It came out during evidence, in answer to the question put by the OP No.1.

            Complainant also entered into an agreement to purchase entire third floor measuring 1475 sq.ft. in the same building being premises No.176, Kanungo Park and has paid a total sum of Rs.57,00,000/- out of total consideration of Rs.59,00,000/-. He has admitted that he paid Rs.43,50,000/- in cash. However, Complainant has claimed that it was for residential purpose.

            Presently, Complainant is carrying his Yoga Business in two different premises at Nakeldanga and at Nafar Chandra Naskar Road which according to him is not his own. Opposite parties have also not claimed anywhere that those places where Complainant is teaching Yoga presently are owned by him. If that be so, then Complainant is entitled to have his own premises to run his Yoga Centres. Even though opposite party No.1 has claimed that Complainant runs the Yoga Centre by employing Yoga professionals but before this Forum there is absolutely no material in support of the said claim of the O.P. Merely because Complainant has purchased one more commercial space at Tegharia, will not automatically establish that the Complainant runs the Yoga Centre by employing Yoga professionals. It has to be borne in mind that the area of the commercial space in the instant agreement for sale dt.9.10.2013 is only 200 sq.ft. and admittedly 3^rd floor agreed to be purchased in the same building is for residential purpose. So, if the area of only 200 sq.ft. is taken into consideration, there cannot be any doubt that the same is not sufficient to accommodate enough people. Complainant has stated in reply to the question of the OPs that his family consists of six members. So, to earn his livelihood and of his family members, purchase of another commercial space at Tegharia of 1650 sq.ft. cannot lead to conclusion that it is to gain more profits. Sometimes, it also depends on the nature of the business or activities, to determine whether the space agreed to be purchased is purely for expansion of business to gain more profits or it is for earning livelihood. Yoga as an activity is of such a nature that every individual who is practicing the same would require sufficient space. So, in the given facts and situation of this case, claim of the OPs that the purchase is purely for commercial use and Complainant is not a consumer, cannot be accepted.

            Due to the nature of business in this case, the two case laws relied upon by the Ld. Advocate for the OP No.1, are not applicable in the given facts and situation of this case.

            Regarding argument on behalf of OP No.1 that so much cash has been paid by the Complainant and the same indicates that he runs the business in large scale, it may be pertinent to point out, Complainant has stated in his reply that he did not pay the cash amount at a time but on different dates, he paid the same.

            So, in such a view of the matter we find that the Complainant is a consumer under the provision of C. P. Act and thus this complaint is maintainable.

            This point is thus answered accordingly.

            Point No.2 & 3

            Both the points are taken up together for discussion.

            As already discussed in Point No.1, execution of agreement for sale in question in this case h as not been disputed and denied by the OP No.1/developer who is also the Constituted Attorney of the OP No.2 & 3 the owners. It is also not disputed that an amount of Rs.15,50,000/- has already been paid by the Complainant to the OP No.1. As per the terms and condition of agreement, commercial space/ shop was to be handed over within 18 months from the date of execution of agreement. Admittedly, neither possession of the commercial space/ shop as agreed has been handed over nor the deed of conveyance has been executed by OPs in favour of the Complainant. Complainant has also not been refunded the amount paid by him. Complainant has stated that he has always been ready and willing to pay the balance amount of Rs.50,000/-. So, in such a situation, Complainant is entitled to possession of the said commercial space and for execution and registration of the deed in his name. In alternatively he is entitled to refund of the amount paid by him. Since the Complainant will have to bear the cost of registration of deed as per present market value, Complainant is also entitled to compensation of Rs.50,000/- as well as the litigation cost.

            These points are thus answered accordingly.

            Hence

                        Ordered

            CC/18/2018 is allowed on contest. Opposite parties are directed to handover the possession of commercial space/shop as agreed in the agreement for sale dt.9.10.2013 and to execute and register the deed of conveyance in favour of the Complainant within three months from the date of this order, on receiving of balance consideration price of Rs.50,000/- from the Complainant.

             In alternatively OP No.1 is directed to refund the amount of Rs.15,50,000/- to the Complainant within the aforesaid period of three months.

            OPs are further directed to pay Rs.50,000/- as compensation and Rs.12,000/- as litigation cost within the aforesaid period of three months.