Dt. of filing – 24/11/2016
Dt. of Judgement – 18/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant Smt. Arati Rani Dhar alias Arati Dhar under Section 12 of the Consumer Protection Act alleging deficiency in rendering services by the OP namely Sukumar Ghosh.
Complainant’s case in brief is that she being the owner of land measuring 3 Cottahs 4 Chittacks 10 sq ft along with a pucca house standing thereon situated at Dag No.5, under Khatian No.1-14, Mouza Chak Ganiagachi under the jurisdiction of Purba Jadavpur entered into development agreement with the OP on 13/12/2010. On the date of signing in the development agreement, petitioner received Rs.20,000/- and as per the terms and conditions, OP was to pay Rs.6,000/- per month for accommodating the Complainant in rented accommodation. He also promised to pay the balance amount to the Complainant shortly. Complainant shifted in rented accommodation in January, 2011 but the OP failed to pay the rent till August, 2011. Power of attorney was also executed and registered in favour of the OP on 2/3/2011. After several request OP started paying rent from September, 2011 except for the month of November, 2011and May, 2012. He paid the rent in June, 2012 but again he stopped paying the rent and he was also not available and no development work was started. So the Complainant revoked the power of attorney on 12/9/2016. A demand notice was sent by the Complainant through her Ld. Advocate on 25/10/2016 but all in vein. So the present complaint case has been filed by the Complainant praying for directing the OP to pay compensation and the rent which was not paid by the OP and the cost of the construction borne by the Complainant of the shop room for her living.
With the complaint petition, Complainant has annexed the property tax receipt standing in her name, Sale deed in her name, development agreement, date of revocation of general power of attorney, copy of the notice sent by her to the OP and the reply received from him.
OP has contested the case by filing the written version denying the allegation made in the complaint petition contending inter alia that Complainant did not handover vacant possession of the land to the OP. inspite of repeated request and ultimately she made an offer to the OP for purchasing the said property at a total consideration price of Rs.22,50,000/-. OP accepted the proposal and agreement for sale was entered into on 19/9/2012 and out of the agreed consideration price OP has already paid Rs.8,00,000/-. Thus Complainant is not a consumer under the provision of Consumer Protection Act and as such he has prayed for dismissal of this complaint case.
During the course of evidence both the parties adduced their respective evidence by filing affidavit-in-chief and cross examination in the form of questionnaire and the reply thereto. Both parties thereafter have filed written notes of argument. So the following points require determination:-
- Whether the Complainant is a consumer under the provision of Consumer Protection Act?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up together for comprehensive discussion. It is admitted fact that development agreement was executed between Complainant and OP on 13/12/2010. Development agreement has been filed by the Complainant wherefrom it appears that it was agreed by and between parties that Rs.1,30,000/- will be paid by the developer to the Complainant of which Rs.20,000/- was already paid on the said date of agreement, Rs.45,000/- and Rs.65,000/- was agreed to be paid on the date of execution of power of attorney and on the date of raising of the first floor respectively. It was also agreed between the parties that Rs.6,000/- per month would be paid by the OP towards rent of the premises where Complainant will be residing during the construction of the building in question. It further appears from the documents that the Complainant revoked general power of attorney executed in favour of the OP. According to OP he has paid Rs.1,30,000/- as agreed. But Complainant failed to deliver the possession of the property for its development and ultimately Complainant offered to sell the land in question to the OP for a consideration amount of Rs.22,50,000/-. It is a further case of OP that Rs.8,00,000/- has already been paid by him to the Complainant out of the total consideration price which includes Rs.1,30,000/- paid by him.
So considering the subsequent development as alleged by the OP about execution of agreement for sale, question to be considered is whether the Complainant can be called a ‘consumer’ after the execution of agreement for sale as alleged by the OP. OP has filed copy of the said agreement which is dated 19/9/2012 wherein signature in the name of the Complainant and also the OP appears. OP not only in his written version has stated about the said agreement for sale but also during his evidence has emphasized more on this. It is also claimed by him that a criminal case has been lodged against the Complainant for cheating. But said criminal case has no relevance in this case. However during the evidence of OP, it appears that he has specifically suggested that Complainant expressed her desire to sale out the property for which an agreement for sale was executed on 19/9/2012. But it appears that to the said evidence of OP, no question has been put by the Complainant with regard to the agreement for sale dated 19/9/2012. She has just stated that it is the matter of record. She has not challenged or disputed her signature appearing in the agreement for sale dated 19/9/2012. The questionnaire filed by the Complainant on 16/4/2018 is totally silent about agreement for sale filed by the OP and agitated by him in his evidence. It is but natural that if the agreement for sale dated 19/9/2012 was not executed by the Complainant, she would challenge it and take steps for its examination by an expert. So in the absence of any specific challenge regarding execution of agreement for sale, on consideration of the claim of OP that the Complainant offered him to purchase the entire property at a consideration of Rs.22,50,000/-, and he has paid Rs.8,00,000/- out of the said consideration price, then by this subsequent act of the Complainant, she could no more be consumer within the meaning of Consumer Protection Act. Thus in these view of the matter, complaint case is not maintainable and as such liable to be dismissed. These points are answered accordingly.
Hence,
ORDERED
CC/550/2016 is dismissed on contest.
