SAMIKSHA BHATTACHARYA, MEMBER
This complaint has been filed by the complainant under Section 17(1)(a)(i) of the CP act, 1986 against the OP alleging deficiency in service.
The brief facts of the case, in brief are that the OP is the owner of two flats being No. 1 & 2 comprising a total area of 1400 sq. ft. super built up area be and same a little more or less in the ground floor together with undivided proportionate share of a common area and facilities along with common service area and undivided proportionate share of land underneath the building at Premises No. 108, Sreerampur, North, (41, Sreerampur Road) , P.O. Garia, P.S. Patuli, Kolkata-700084.
Being the absolute owner of the said two flats, the OP has desired to sell the two flats and accordingly the complainant, being satisfied with the representation of the OP, entered into an Agreement for Sale on 07.11.2016 to purchase the said two flats for Rs.43,00,000/-. At the time of execution, the complainant paid Rs.8,50,000/- by way of three cheques drawn on SBI, Salt Lake City being No. 963453 dated 30.08.2016 amounting to Rs.1,00,000/- Cheque No. 96354 dated 05.10.2016 amounting to Rs.5,00,000/- and Cheque No. 963455 dated 05.10.2016 amounting to Rs.2,50,000/-.
The OP was agreed to submit all the relevant papers for availing bank loan and she was also agreed to register the Deed of Conveyance on or before 30.11.2016 after getting the balance amount of Rs.34,50,000/-. It was also agreed that complainant shall bear the Registration and Stamp Duty charges and searching charges for thirty years. In the meantime, the OP delivered the Khas possession of two flats to the complainant on 07.11.2016. At the time of availing bank loan, the OP did not provide the original Title Deeds of the flats with plea that both the Deeds were lost. Ultimately the complainant availed the housing loan of Rs.30,00,000/-. The complainant again requested the OP for registration of the flats by her letter dated 09.08.2017 enclosing the pre-approved housing loan agreement dated 02.08.2017 but the OP did not take any step towards registration. The complainant again sent two letters on 06.10.2017 and 19.10.2017 with same request but the OP did not take any step. Then the Complainant sent an Advocate Letter dated 16.01.2018 requesting for registration. In reply to the OP also sent Advocate Letter dated 27.01.2018 refusing the complainant’s request. For this unfair trade practice and deficiency in service, the complainant filed this application praying for registration of the Deed of Conveyance of the two flats in question in favour of complainant along with compensation of Rs.10,00,000/- and litigation cost of Rs.30,000/-.
Sole OP contested the case by filing written version. In her written version, OP denied all material allegations inter alia stated that her grandfather, Late Kalidas Mukhopadhyay was the absolute owner of the flats in question who transferred the two flats in favour of OP by virtue of a Deed of Gift in the year 2005. In August, 2016, OP decided to sell her two flats with wooden wardrobe, wooden almirah and 3 Air Conditioner Machines for personal reason and made paper advertisement in the Telegraph and the Anandabazar Patrika. Complainant showed her interest in purchasing said two flats and paid Rs.1,00,000/- on 30.08.2016 as advance and assured to pay Rs.10,00,000/- within 30.09.2016 and further assured to pay balance consideration of Rs.32,00,000/- by 30.11.2016. The complainant paid Rs.7,50,000/- instead of Rs.10,00,000/- on 30.09.2016 and assured to pay balance consideration within 30.11.016 and requested to hand over the keys of the flat. But OP denied to give so. In October, 2016, the OP handed over the keys on good faith since the complainant requested the father of the OP for handing over the keys with a view to ascertain whether any repairing and renovation work of the flats were required. Then, thereafter, complainant did not return the keys since she had shifted to the flats without taking permission from OP. then the OP requested the complainant to vacate the flats but the complainant refused to vacate. Then the OP sent Advocate Letter on 19.12.2016 followed by legal intimation dated 19.01.2017 and 23.01.2017. The complainant filed a case being No. M.P. Case No. 316 of 2017 under Section 107 of the Code of Criminal Procedure before the Ld. Executive Magistrate, Alipore, South 24 Parganas. Accordingly, an enquiry report was submitted. All allegations made in the petition of complaint against the OP are baseless and frivolous. Hence the OP has prayed for rejection of complaint ab initio.
During course of argument, the Ld. Counsel for the complainant has showed the Agreement dated 07.11.2016 executed by and between the parties where in the ‘Memo of consideration’ it has been specifically mentioned that the complainant has paid Rs.8,50,000/- out of Rs.43,00,000/-. The Ld. Counsel for the complainant has also showed the letter dated 05.08.2017 requesting the OP for registration of the said two flats. The complainant got possession of the flats on 07.11.2016 but till date registration of sale deed is due. Hence, the Ld. Advocate for the complainant has prayed for relief as mentioned in the petition of complaint.
The Constituted Attorney namely Sri Samir Kumar Mukherjee appearing on behalf of for OP has has stated that till date Rs.34,50,000/- is due from the complainant out of Rs.43,00,000/-. Complainant is in illegal possession of the two flats and therefore, she is liable to pay compensation @ 1500/- per day from 07.11.2016 to the date of discontinuity of such illegal possession. Since the complainant is in possession, occupation and enjoyment of the flats, the complainant is liable to pay compensation. He has further submitted that the complainant shall be at liberty to purchase the two flats of OP at current market price which is assessed by OP as Rs.56,00,000/- @ Rs.4,000/- per sq. ft. for 1400 sq. ft.
Upon hearing the parties and on perusal of entire materials on record it is admitted fact that the complainant entered into an Agreement for Sale on 07.11.2016 for purchasing on the flats in question. It is also admitted fact, the complainant has paid Rs.8,50,000/- out of total consideration of Rs.43,00,000/-. There is no denial that the complainant is in possession of said two flats but the execution and registration of deed of conveyance of the same is due till date though it was agreed that deed of conveyance would be executed and registered by the OP on or before 30.11.2016. Now the OP is demanding the present market value of the flats and occupation charges.
The moot point for consideration is the present case whether the complainant is consumer and the case is related to consumer dispute and the complainant is entitled to relief by filing this case.
Going through the four corners of Agreement for Sale it appears that the agreement was executed by and between the parties for purchasing two ready flats. There is no ingredient of housing construction. The OP became the owner of the said two flats by way of Gift Deed from her grandfather. The complaint case relates to sale simpliciter. The agreement is for simpliciter to sell of the immovable property, therefore, the OP is not service provider and the complainant is not consumer under Section 2(1)(d) of the CP Act, 1986. There is no evidence that the OP in the case was working as builder. She is seller simpliciter. It must be borne in mind that the sale of ready flat is different from the flat sold by the builder or promoter. We are relying up0on the judgment passed by the Ho’ble Apex Court in the case of Ganeshlal vs. Shyam in Civil Appeal No. 331 of 2007. Therefore, the complainant, by any stretch of imagination, can be termed as a ‘consumer’ under Section 2(1)(d) of the CP Act, 1986 and accordingly, the instant dispute cannot be termed as ‘consumer dispute’ as per Section 2(1)(e) of the CP Act, 1986 and the service is not related to any service as per Section 2(1) (o) of the CP Act, 1986.
As a result, the Consumer Commission is not competent to entertain the present case and, therefore, this Commission cannot pass any order to the complainant as prayed for. The complainant can approach the appropriate court of law for her grievance, if so advised.
Thus, the complaint case fails.
Hence,
It is
O R D E R E D
The Complaint Case being No. CC/550/2019 be and the same is dismissed on contest.
There is no order as to costs.
However, the complainant is at liberty to agitate her grievance before the appropriate authority.
Thus, the complaint case is disposed of, accordingly.
