DATE OF FILING : 27.08.2014.
DATE OF S/R : 25.11.2014.
DATE OF FINAL ORDER : 01.09.2015.
Smt. Bela Dalui,
widow of late Nirapada Dalui,
village Nona, P.S. & P.O. Uluberia,
District Howrah,
PIN 711 315. ………………………………………………………… COMPLAINANT.
1. Sk. Sahanawaj,
son of late Md. Jarfia,
Village Basudevpur, P.S. & P.O. Uluberia,
District Howrah,
PIN 711315.
2. Nivash Chandra Roy,
son of village Fatepur, P.S & P.O. Uluberia,
District Howrah,
PIN 711 315. ………………………………………………OPPOSITE PARTIES
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner Smt. Bela Dolui, praying for a direction on the o.ps. namely, Sk. Sahanawaj, and another directing them to execute the sale deed in favour of the petitioner and to hand over the ‘B’ schedule mentioned shop measuring about 160 sq. ft. and to pay compensation of Rs. 2 lakhs and litigation costs.
- The case of the petitioner is that in the month of July / August, 2012 the o.p. n. 2, Nibas Ch. Roy, told her of the proposed construction stating that he entered into an agreement with o.p. no. 1, Sk. Sahanawaj. The petitioner signed an agreement with the o.p. no. 1 who would deliver her a shop room at a consideration of Rs. 8 lakhs. The petitioner paid Rs. 2 lakhs on 29.12.2012 and as per agreement, the petitioner is ready and willing to get the shop room registered in her favour. The o.ps. told that they would execute and register in January, 2013 upon payment of another Rs. 2 lakhs but they did not. Finding no alternative the petitioner filed this case after sending notice on 27.6.2014.
3. The o.p. no. l contested the case by filing a written version denying the allegations made against him and submitted that the case is not maintainable and hopelessly barred by limitation and also the petitioner is not a consumer. The o.p. no. 1 agreed to sell the said suit shop to the petitioner at a consideration of Rs. 8 lakhs on condition that the petitioner would pay Rs. 4 lakhs in the month of January, 2013 and he would execute the agreement for sale. He further submitted that the petitioner paid only Rs. 2 lakhs and did not enter into agreement for sale for purchasing the shop room by paying Rs. 2 lakhs in January, 2013. He requested the petitioner to pay Rs. 2 lakhs but she did not. The o.p. no. 1 was never negligent and there was no deficiency in service on his part. The o.p. no. 1 kept the said shop room unsold and he is ready to execute the deed of conveyance in favour of the petitioner on receipt of the full consideration amount and deliver possession. As the petitioner is not a consumer so the case be dismissed against him.
4. The o.p. no. 2 though served with notice did not appear in the case and thus the case is heard ex parte against him.
5. On the above case of the parties the following issues are framed :
- Is the case maintainable in its present form ?
- Whether the case is within the limitation period ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
6. All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of her case the petitioner herself filed the affidavit in chief and also one Rashid Nama Patra wherein stated that in the ground floor of the multi storied building she would be provided with a shop room measuring 160 sq. ft. in the north east corner which would be sold to her by Sk. Sahanawaj at a consideration of Rs. 5,000/- per sq. ft. and she advanced a sum of Rs. 2,00,000/- to the o.p. no. 1, Sk. Sahanawaj, who accepted the same and signed in the said document on 29.12.2012. It is stated further that after accepting the amount of Rs. 2 lakhs the o.p. no. 1 submitted that he would execute and register the sale deed in favour of the person nominated by this petitioner after receiving the rest consideration amount.
7. Regarding the question of limitation this Forum finds that the money was advanced on 29.12.2012 and this case was filed on 27.8.2014. Thus, the case was filed well within the period of limitation and also the petitioner was assured that the shop room would be registered in her favour or in favour of any person nominated by him and the o.p. no. 1 agreed to do the same. As the words in the money receipt cum agreement stating
Both the parties field their brief notes of argument and also this Forum heard the maintainability petition of the o.p. along with the main case. In the maintainability petition the petitioner submitted that the petitioner being an intending buyer of commercial space which is not for self employment and according to the Section 2(1)(d) of the C.P.Act, 1986 she being a teacher cannot be a consume within the meaning of the Act and so the case is not maintainable before this Forum.
8. The ld. counsel for the petitioner submitted that the case is well maintainable because the petitioner wanted to purchase the shop room in the said multi storied construction as the o.p. no. 1 proposed to sell the same and being an intending purchaser of space in a multi storied building from a promoter, the petitioner is very much a consumer.
9. Heard the ld. counsel at length and gone through the BNAs filed by them wherein the ld. counsel for the o.ps. submitted that the dispute arises in respect of a shop room in the ground floor of the proposed building and the petitioner being an intending purchasers wanted to purchase the same shop room at a consideration of Rs. 8 lakhs and she paid Rs. 2 lakhs but the petitioner being a teacher intending to purchase a shop room cannot be a consumer as per provision under C.P. Act, 1986.
10. Ld. counsel referred before this Forum a few decisions of the National Commission and other wherein purchase of any kind for commercial purpose cannot be a dispute coming under the purview of C.P. Act, 1986 like purchasing a car for commercial purpose one cannot be a consumer under C.P. Act, 1986 or purchasing a machine for running a nursing home, the purchaser cannot be stated to be a consumer and thus in case of purchase for commercial purpose the petitioner never comes within the term ‘Consumer’ and the petitioner cannot get any relief.
11. In the instant case though the petitioner wanted to purchase the space in the form of a shop room yet there is no guarantee that it cannot be used for any purpose other than commercial purpose like she might use it for teaching her students for social upliftment and being a lady it is not expected in our society that she would run a business there. Being a purchaser simplicitor she is a consumer and thus even though the o.p. no. 1 was ready and willing to execute and register the deed in favour of the petitioner yet not executed the same and being a consumer under the C.P. Act, 1986 and the dispute being a ‘Consumer Dispute’ the petitioner cannot be deprived of getting any relief in the instant case. Even though there is deficiency in service on the part of the o.p. no. 1 not to execute the deed to the petitioner in time by receiving the rest consideration money yet facts showing here that petitioner did not pay the consideration as agreed so she is nor entitles to any compensation in this case. Thus being the teacher and also being a lady she might use this space for the purpose other than running a business and by purchasing a space in the area where shop rooms are located it cannot be said that the lady teacher purchased the space for business purpose as no such averment or evidence on her part that she would use the space for the purpose of business. It is fact that she purchased the alleged shop room but nowhere she stated that the space would be used for business purpose and thus before the Forum she is a consumer who made an agreement with the o.p. no. 1 for purchasing a space and being a purchaser simplicitor she has every right to approach the Forum as a consumer for the dispute which is nothing but a consumer dispute.
In view of above discussion and findings this Forum opines that the petitioner succeeded to prove her case that she is a ‘Consumer’. Thus all the issues are decided in favour of her.
In the result, the claim case succeeds. Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 476 of 2014 ( HDF 476 of 2014 ) be and the same is allowed on contest but without costs.
The o.p. no. 1 is directed to execute and register the shop room measuring 160 sq. ft. in favour of the petitioner after receiving the rest consideration money within 30 days from the date of this order failing the petitioner is given liberty to put the order in execution.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
