Date of Filing : 16 October, 2020.
Date of Judgement : 22 November, 2024.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when (i) Sri Ravi Kumar Agarwal and (ii) Smt. Sonu Agarwal, hereinafter called as the Complainants, filed a complaint against Smt. Kumkum Mukherjee, hereinafter called as the Opposite Party or OP, alleging deficiency in service on the part of the OP for non-execution and non-registration of the flat purchased by them.
Facts in brief as emerged from the complaint petition are that the complainants entered into an agreement for sale on 29/01/2020 with the OP intending to purchase a flat being Flat No. 14A on the south west side of the fourth floor measuring about 750 sq. ft. super built up area consisting of 2 bed rooms, 1 kitchen, 1 living cum dining hall, 2 bath rooms and 1 varandah at premises no. 70, Sree Ram Dhang Road, Salkia, P. S. – Malipanchghara, Howrah – 711 106 for a total consideration of ₹10,05,100/-. Complainants paid ₹9,05,100/- to the OP part by part lastly on 12/03/2020 and the OP handed over possession of the said flat on 12/03/2020 in favour of the complainants who were enoying, occupying and possessing the scheduled property on and from 27/09/2014. It was settled between the complainants and the OP that the rest amount of consideration of ₹1,00,000/- would be paid to the OP by the complainants at the time of execution and registration of the said property. Complainants repeatedly requested the OP to execute and register the scheduled flat in their favour, but the OP did not take any step and delayed the process. It is the allegation of the complainants that they have been compelled to file the instant complaint as the OP wanted to dispossess the complainants from the said flat and tried to sale the flat to any third party. They alleged that on 14/10/2020 the agent of the OP tried to dispossess them from the flat forcefully for which they filed this case on 16/10/2020 praying:
(a) to direct the OP to execute and register the Deed of Conveyance in respect of the said flat in favour of the complainants;
(b) to direct the OP to pay compensation of ₹50,000/- for mental agony and harassment and to pay ₹30,000/- towards litigation cost; and
(c) any other relief/reliefs.
Complainants filed copies of (i) the notarised Agreement for Sale executed on 29/01/2020, (ii) Money receipt issued by the OP on 13/03/2020 showing payment of ₹9,05,000/- and (iii) the possession certificate issued by the OP on 13/03/2020 as annexure to the complaint petition.
Notice was served upon the OP after admission, to appear and contest the case by filing written version. OP appeared through her Ld. Lawyer by filing Vakalatnama and prayed time to file her written version. But the OP could not file her written version though repeated opportunities were given to her, consequently the case proceeded ex parte against the sole OP. Complainants then filed Brief notes of Argument instead of filing Evidence on Affidavit. After further direction the complainants filed their Evidence on Affidavit. Argument of the complainants was then heard in full. We have now come to deliver the Final Order/Judgement in this case. We have to decide:
(a) whether the complainants are consumers under the OPs in accordance with the C. P. Act, 2019;
(b) whether the OP is deficient in rendering proper service to the complainants; and
(c) whether the complainants are entitled to get relief(s) as prayed for.
Let us take these points together in our discussion to avoid repetition.
DECISION WITH REASONS
Factual matrix emerged from the complaint and the annexed documents:
It is the contention of the complainants that being desirous to purchase a residential flat they entered into an Agreement for Sale with the OP on 29/01/2020 intending to purchase a 750 sq ft flat bearing Flat No. 14A on the South-West side of the 4th Floor for a total consideration of ₹10,05,100/- at the premises at 70, Sree Ram Dhang Road, Salkia, P.S. – Malipanchgjara, Howrah–711 106. They paid ₹9,05,100/-, as per Money Receipt, starting from 03/02/2020 to 12/03/2020 out of total consideration and the OP handed over possession of the flat to the complainants on 13/03/2020 issuing a Possession Certificate. The complainants alleged that the OP did not execute and register the said flat in in their favour despite their repeated requests. Finally the OP tried to dispossess the complainants through her agent on 14/10/2020 to sale the flat to a third party following which the complainants filed the instant complaint before this Commission on 16/10/2020 praying as stated herein above. Complainants brought forward the above statement through their evidence.
As the Opposite Party has not contested this case we have no other alternatives to counter or rebut the complaint. We have to rely on the averments and annexed documents filed by the complainants to take decision in this case.
Findings:
First of all let us scan the complaint petition. Complainant filed this complaint on 16/10/2020 applying under Section 12 of the Consumer Protection Act, 1986. This Act has been replaced a new act, The Consumer Protection Act, 2019, on 20/07/2020. Section 12 of the 1986 Act has been replaced by Section 35 of the new Act.
Complainants stated that they executed an Agreement for Sale with the OP, Smt. Kumkum Mukherjee, on 29/01/2020 and paid ₹9,05,100/- out of total consideration of ₹10,05,100/- to purchase the 750 sq ft subject flat. In Paragraph No. 3 of the complaint petition, which is supported in their evidence in the same language, that on 12/03/2020 the OP ‘had handed over possession of the schedule noted property on 12.03.2020 in favour of the complainants who have been enjoying, occupying and possessing the schedule mentioned property peacefully since the date i. e. on and from 27.09.2014’ [Emphasis supplied.]. But the Clause–4 in Page–4 of the said agreement for Sale dated 29/01/2020 states as:
‘4) That the party of the first part shall be under the obligation to deliver the possession of the “B” Schedule property to the purchasers or their nominee on or before 29th February, 2020.’ [Emphasis supplied.] This Clause alone clearly says that the OP promised to complete the flat within one month and would hand over it to the purchasers/ complainants, though the complainants were already in possession of the said property since 27/09/2014. This contradiction will be cleared when we minutely scan and scrutinize the agreement for sale dated 29/01/2020.
The agreement for sale in question starts with the statement that Smt. Kukkum Mukherjee (Bhattacharya) was residing at 70, Sree Ram Dhang Road, Salkia, Malipanchghara, Howrah – 711106, and she has been described as the Vendor/One Part. The complainants, Mr. Ravi Kumar Agarwal and Mrs. Sonu Agarwal are described as the Purchasers/Second Part. In the last paragraph in Page – 2 of this agreement it is stated that the Vendor/OP herein, through an unregistered agreement for sale dated 26/04/2005, had been delivered possession of the property in question from the erstwhile owners, Mr. Brojendranath Bera and Smt. Rasana Bera after paying total consideration. In the second paragraph in Page – 3 of this agreement it is stated that due to some bonafide reason the Vendor/OP herein intended for an ‘outright sale’ of the flat in question at a total consideration of ₹10,05,100/- and as the purchasers/complainants agreed to purchase the said flat at ₹10,05,100/- this agreement has been prepared.
So we see that the complainants entered into this sale agreement to purchase a flat which the Op had got possession in 2005. Moreover, the complainants were enjoying possession of the said flat since 27/09/2014, but executed this present sale agreement on 29/01/2020. The entire complaint petition and the annexed documents clearly show that there a sale/purchase of a complete flat. Yet, the complainant claimed themselves as consumers and the OP is deficient in service to be provided to them.
Now, let us take the definition of “Consumer” as defined in the C. P. Act, 2019. Section 2 (7) of this Act states that:
‘(7) "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.’ [Emphasis supplied.]
Again, Section 2(42) of the Act states that:
‘(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;’ [Emphasis supplied.]
Here, the complainants intended to purchase a flat which was already existed and enjoyed by the OP since 2005. So, According to the definition they have not purchased “goods” as per the Sale of Goods Act, 1930. Even they have not availed any “service” as the OP ‘outrightly’ sold the subject flat to the complainants without providing any ‘service’. The sale agreement dated 29/01/2020 has not spent a single word which could tell us that there was “service” of the OP availed by the complainants. So, we have no hesitation to say that the complainants are not ‘consumers’ and there has not been occurred any deficiency in ‘service’ in the light of the C. P. Act, 2019, rather we can easily say that it is a “simplicitor sale”.
The Hon’ble Supreme Court in Civil Appeal No. 4432 of 2012 – Norne Construction P. Ltd. & Othrs Vs. Union of India & Others observed that: if a person enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression 'service'. Here the OP neither a developer nor a contractor but an owner of the existing flat, so the nature of transaction cannot be covered by the expression ‘service’. In its judgement passed in Ganeshlal Vs. Shyam, C. A. No. 331 of 2007, the Hon’ble Supreme Court held that a simplicitor sale does not come under the jurisdiction of Consumer Forum (Commission), State Commission or National Commission. In the present case the complainants ought to have filed suit for specific performance and this District Commission has no jurisdiction to entertain this complaint. A Civil Court is the competent authority/Forum to entertain such dispute.
So, in conclusion, we are of the opinion that, in the light of the Consumer Protection Act, 2019, the present complaint is not a ‘consumer complaint’, the complainants are not ‘consumers’ and no ‘deficiency in service’ has been occurred from the part of the OP. So, the instant is not maintainable under the Consumer Protection Act, 2019 and hence it is liable to be dismissed.
So, it is, therefore,
ORDERED
that the Complaint Case bearing No. CC/205/2020 be and the same is dismissed ex parte against the Opposite Party and with no cost.
Let a copy of this order be issued to both the parties free of cost.
Dictated and corrected by me
Member.
