West Bengal

Nadia

CC/39/2020

ADITYA NARAYAN DUTTA - Complainant(s)

Versus

SMT. NIRUPA HARIJAN - Opp.Party(s)

PRADIP BANERJEE

10 Feb 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
NADIA
170,DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING.
NADIA, KRISHNAGAR
 
Complaint Case No. CC/39/2020
( Date of Filing : 06 Aug 2020 )
 
1. ADITYA NARAYAN DUTTA
S/O- TAPAS KUMAR DUTTA NAGENDRANAGAR 4TH LANE, P.O.- KRISHNAGAR
NADIA
WEST BENGAL
...........Complainant(s)
Versus
1. SMT. NIRUPA HARIJAN
W/O- LATE SATYA HARIJAN, RADHANAGAR, NAZIRAPARA, P.O.- KRISHNAGAR,PIN- 741101
NADIA
WEST BENGAL
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MRS. SMT. ASHOKA GUHA ROY (BERA) PRESIDING MEMBER
 HON'BLE MR. Shri. Siddhartha Ganguli MEMBER
 
PRESENT:
 
Dated : 10 Feb 2021
Final Order / Judgement

Date of Filing           : 19.07.2020

Date of Disposal      : 10.02.2021

 

ORDER No.  07 

DTD.  10.02.2021

 Today the instant case is fixed for  admission hearing.

 

 Ld. Advocate for the complainant is present.

The case is taken up for admission hearing.

Ld. Advocate for the complainant submitted that the complainant with an intent to purchase a residential house, which is situated under J.L No:-92, Mouza:- Krishnagar, Khatian No:- C.S. and R.S. 264, LR plot No. 547, area of land 1.5 decimal, entered into an agreement for sale  with the OP on 23.07.2018 at  the consideration of Rs.14,50,000/- and out of which the complainant has paid 4,50,000/- as advance amount.

Ld. Advocate for the complainant further submitted that in the aforesaid plot of land  an incomplete building is existing and the complainant upon receiving photo copy of registrar deed  from the OP, being deed No. I- 02491 of 2009, got satisfied himself and there upon entered into the said agreement for sale with the OP and paid the advance amount as aforesaid.

Ld. Advocate for the complainant further submitted that the said land is not recorded in the name of the OP in the L.R & R.O.R and he did not get possession of the said property till date.

Typed & Corrected by me

 

           Member                                                                                        Cont……P/2

 

::2::

CC-39 of 2020

 

 

 The Ld. Advocate further submitted that the OP supplied a copy of chain of deed to the complainant but from the said document it was not evident how the OP got the property from the erstwhile owner.

No further information has been provided in respect of the said land to the complainant by the OP and as a result of which some suspension crept in the mind of the complainant regarding ownership of the said property and the complainant thinks that he has been cheated.

The complainant sent notice to the OP on 24.06.2019 for refunding of the advance amount but the OP did not pay any heed to.

The complainant found some discrepancy regarding the property in question with the available document in hand and after comparing those documents obtained from various Govt. departments suspicion strengthened in the mind of the complainant.

Hence, the complainant approached before this District Forum for redressal with the following prayer:-

1. An order be passed against the OP with a direction to refund advance amount along with interest to the complainant and further to pay compensation of Rs.5,00,000/- for mental pain, agony and suffering etc.

The complainant filed a copy of each of the letters sent to the OP, copy of agreement for sale, chain deed, being  No: 6356 of 1991, plot information etc.

in order to substantiate his submission.

Heard the Ld. Advocate at length.

Perused the complaint petition and other materials on record.

 It transpires from the complaint petition and other materials on record and having due consideration of the submission of the Ld. Advocate for the complainant that the complainant had entered into an agreement for sale with the O.P on 23.07.2018 for purchasing a residential plot of land along with existing structure at a consideration of Rs., 14,50,000/ and out of which he paid Rs. 4,50,000/ as advance amount.

 

Typed & Corrected by me

 

           Member                                                                                        Cont……P/3

 

::3::

 

CC-39 of 2020

 

 

 It is the allegation of the complainant that the ownership of the property in question is disputed and the O.P duped him by providing some irrelevant documents and taking the advance amount as aforesaid and the O.P is not the absolute owner of the said property. The complainant requested to make refund of the advance amount but the O.P did not pay him back and thus finding no other alternative he filed this instant case for proper reliefs as prayer for. 

 Further, upon scrutiny of the documents annexed it is found that the property in question is an immovable property and there is no element of hiring of any service involved.  The land is not also under any development project.

 It is settled principle of law that the consumer Fora. cannot entertain, adjudicate or try any case where the subject matter is an immovable property.

 

Further, the term ‘service’ has been defined u/s 2(42) of the C.P.Act,2019 which runs as follows: “ 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.”

 It is to be noted that the term ‘housing construction’ has been used in the section.

  In the earlier C.P. Act of 1986 also the term ‘Service ‘was defined u/s-2(o) of the Act and in the said section the term ‘’housing construction’’ had been used.

 

 It is abundantly clear that in order to maintain a consumer complainant before the District Commission or the State Commission or the National Commission, the complainant must be a consumer as defined u/s 2(5) of the C.P.Act,2019 and the dispute must be a consumer dispute and the allegation of the complainant should be either for defect of goods or for deficiency in service against the O.Ps.

 

 In view of this Commission the complainant is not consumer as per the definition of consumer as provided u/s 2(7)(ii) of the C.P.Act,2019 because the complainant did not hire or availed of any service for a consideration  which has been paid.

 

Typed & Corrected by me

 

           Member                                                                                        Cont……P/4

 

::4::

 

 

CC-39 of 2020

 

 

 

Here, the complainant is not consumer under the O.P as the element of service is lacking over here. The relationship in between the complainant and O.P is not purchaser- service provider and the dispute is not a consumer dispute at all.

 

  In this connection, a case is required to be discussed which is very relevant over here titled as Ratna Roy Vs Babul Sarkar & Ors, reported in 2017(4) C.P.R-690 wherein Hon’ble National Commission has been pleased to hold the view that the Consumer Forum has no jurisdiction to try and entertain any case relating to ready to built up flats.

 

 In para -5 of the said ruling Hon’ble National Commission was pleased to observe that “It is evident from the aforesaid statements contained in the agreement relied upon by the complainant himself that the said agreement was executed after the house had already been constructed. It is clearly stated in the agreement that after constructing the house the vendor had sold the ground floor flat and had remained the owner of the first and second floor flats. It further shows only thereafter the complainant applied to the vendor for purchasing the flat No:1 on the second floor of the building. The said flat was described in schedule-II to the agreement. Though, the case set out in the complaint is that a sum of Rs. 60,000/ was received from the complainant during construction of the building, the aforesaid averment cannot be accepted in view of the agreement relied upon by none other than the complainant himself. If the agreement is a genuine document, it is evident that the deceased had entered into an agreement to sell the second floor flat to the complainant and the said flat had already been constructed before the agreement was executed.”

 

Further, in Para-6 of the said judgment the Hon’ble National Commission was pleased to observed that “if a person enters into an agreement to purchase a ready built up flat, such a transaction would not be covered under the Consumer Protection Act since the purchaser cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. There is no question of hiring or availing any services of the seller in a transaction for sale of ready built up flat. The term service has been defined in the Consumer Protection Act to include housing. Therefore, if there is hiring or availing of services for the purpose of housing construction, only then, the buyer would be a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act. In a transaction for sale of a ready built up flat, no element of the service of housing construction is involved. Therefore, neither a consumer complaint would be maintainable in respect of such a transaction nor the Consumer Forum would have jurisdiction to entertain such a complaint.”

 

Typed & Corrected by me

 

           Member                                                                                        Cont……P/5

 

::5::

 

 

CC-39 of 2020

 

 

 

 

      Further, it is settled principle of law that the consumer forum/ commission has not been empowered to entertain, try or adjudicate any matter which is immovable property. The instant case is filed under the C.P Act, 1986 and the said Act is repealed and a new C.P.Act,2019 has come into force on 20.07.2020, wherein no such provision has been made or the Consumer Commissions have not been empowered to entertain, try or adjudicate any case where the subject matter of the case is immovable in nature. In the old Act too there was no such provision.

 

     It was held  by the Hon’ble Supreme Court in Nitin Construction Pvt. Ltd Vs Union of India & Ors[ Reported in II(2002) C.P.J-4( S.C)] that when the transaction is a sale simpliciter, that does not come within the purview of the Consumer Protection Act,1986. And that is the settled principle of law.

 

     The complainant cited two case decisions reported in I( 2009) C.P.J-63 and IV (2008)155 N.C and upon perusal of those decisions it appears to us that the ratio of those two decisions are not matching with the present case in hand therefore the principle adopted in those cases cannot be applied over here.

 Further, those two referred cases were related to booking of flats and refund of money. It is settled principle of law that the builder is bound to refund the advance amount to the purchaser if he fails to deliver the flat to the purchaser or the flat is not completed within the stipulated period of time. But the fact of this instant case is different. Hwere the property in question is an immovable property

 

 

In view of the above discussions and having due regard to the solemn orders and observations of the Hon’ble National Commission and Hon’ble Supreme Court, this Commission is of the considered opinion that the present complainant is  not a consumer under the O.P and the dispute is not a consumer dispute at all and there exists no relationship between the complainant and the O.P as consumer- service provider relationship as the complainant did not hire or availed of any kind of service from the O.P and as the property in question is an immovable in nature and from the deed of agreement it is also crystal clear that the transaction was for a outright sale of an immobile property  and therefore this District Commission has no power to admit, entertain, try or adjudicate the case and therefore the instant case is not maintainable and liable to be rejected.

 

Typed & Corrected by me

 

           Member                                                                                        Cont……P/6

 

::6::

 

 

CC-39 of 2020

 

Further, it is seen from the case record that the case was registered on 19.07.2020 under the C.P.Act,1986 and the said Act has been repealed and the C.P Act,2019 has come into force on and from 20.07.2020 and therefore order is made under the new Act.

 

The complainant may ventilate his grievances against the O.P in any other Forum of Law/ Authority, if it is not otherwise barred.

 

       Accordingly, the case is dismissed without being admitted.

 

Hence,

 It is ordered that consumer Complaint C.C- 39 of 2020 is dismissed without being admitted. 

 Liberty is given to the complainant to file the complaint in any other forum of law/ Court of justice, if not otherwise barred.

 

 
 
[HON'BLE MRS. SMT. ASHOKA GUHA ROY (BERA)]
PRESIDING MEMBER
 
 
[HON'BLE MR. Shri. Siddhartha Ganguli]
MEMBER
 

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