Dt. of filing- 09/03/2016

Dt. of Judgement- 02/03/2020

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is filed  by the complainant namely Laxmi alias Lakshmi Kanta Mondal under Section 12 of the Consumer Protection Act against the Opposite Parties (referred as OPs hereinafter) namely (1) Abanindra Nath Karali  (2) M/s. Royal Enterprise represented  by its proprietor  Indranil Mukherjee, alleging  deficiency in service   on their part.

          Case of the  complainant in short is that  the OP No.1 was the owner  in respect of  property described in schedule ‘A’. He entered into a joint venture agreement  with the OP No.2 to build a new building  in the existing structure  for  residential purpose and for the commercial purpose. To enter into the said joint  venture agreement,  No Objection Certificate was also required from the complainant as he was a tenant  in respect of a shop room under the OP No.1. So  agreement for  development  on 02.11.2009 which was duly  notarised on  15.01.2010 was executed between  the OP No.2 and OP No.1. Complainant was also a party to the agreement.  It was  assured  by the OPs  that the complainant  shall get a  shop room  measuring  more or less   56 sq ft in the said new building. On such  assurances, complainant issued No objection. After completion of the construction  work, OPs  delivered the  possession of the said shop room to the complainant. Thereafter,  OP No.1  proposed the complainant to purchase  the said shop room  at a total consideration price of Rs. 60,000/-  to which  complainant  agreed and to this  effect an agreement  was entered into between the complainant and the OP N o.1 on 30.01.2012. OPs have received the entire consideration money.  Complainant has been  paying   the municipal tax bill in respect of the said shop room. Complainant  prepared  a draft deed  of conveyance  which was  signed by the  OP No.1  but in inspite of the  same  OP No.1  was not present  before the Registering  Authority for the purpose of  registration  of the sale deed. So, a notice was  sent  by the complainant  to the OP  through  his Ld. Advocate  on 11.03.2015 asking to execute  and register   the deed of conveyance. But  as OP No.1 paid no heed, the present complaint has been filed  praying for directing the OP to execute and register the  deed of conveyance  in respect of the shop room described in the schedule ‘B’,  to pay Rs. 1,00,000/- towards the enhancement  of  the  stamp duty and registering fee, Rs.1,00,000/- as compensation  for  mental agony and harassment and for cost.

          Complainant has annexed  with the complaint a tenancy  agreement dated 04.10.1992, copy of agreement dated 30.09.2009 entered into  between the parties, copy of agreement  dt. 31.01.2012, municipal bills  and the copy of the notice sent by the complainant  dated 11.03.2015 through his  Ld. Advocate  and the reply  by the OP No.1 dt. 28.03.2015. Complainant  has also filed  copy  of  draft deed of conveyance.

          On perusal of the  record it appears  that the case has been contested by OP No.1 by filing  written version denying and disputing the allegations made in the  complaint  contending  inter-alia  that the  complainant  was a monthly tenant  under the OP No 1. in respect of the shop room as per tenancy agreement  dt. 04.10.1992. By an agreement dt. 30.09.2009  the shop room  had been reconstructed by the developer  and the possession  of the new  reconstructed  shop room has been handed over  to the complainant. Complainant failed to pay rent as per  the terms and conditions of the tenancy agreement since February, 2012. So  an ejectment suit   has been has been  filed by the  OP No.1 which is pending before the Ld. Civil Judge ( Junior Division ), Alipore being  Ejectment Suit No.  13/2015. OP has  disputed and  denied   the execution of  any  agreement dt. 31.01.2012 and also  the draft deed of conveyance. Thus the OP No.1  has prayed for dismissal of the case.

          On perusal of the record  it appears   that the OP No.2 did not take any step and thus the  case proceeded  exparte against OP No.2.

          During the course  of the trial, complainant  and the OP No.1 filed their respective  affidavit in chief  followed by filing  questionnaire  and reply thereto. Ultimately , argument  has been advanced.  It has been argued by the Ld. Advocate  appearing for the  OP that the complainant is not a ‘Consumer’ as  the alleged agreement was in respect of a shop room which was  for commercial purpose.

          Ld. Advocate appearing for the  OP has also argued  that the alleged  agreement  is an unregistered  agreement and thus  the same  is not a valid agreement and will not affect transfer  of any property. Ld. Advocate  has cited the decision of Hon’ble High Court of  Andhra Pradesh in the Civil Revision  Petition No. 4066/2016 ( R. Suresh Babu – vs. – G. Rajalingam  & 2  Ors. ).

          So, following  points requires determination –

1) Whether the complainant  is  a ‘Consumer’   under the provision of the Consumer Protection Act ?

2) Whether there has been deficiency  in service on the part of the  OPs ?

3) Whether  the complainant is entitled to the  relief  as prayed for  ?

          Point  No.1 :

It is  claimed by the  complainant  that he was a monthly tenant in respect of a shop room under OP No.1. OP No.1, the owner  intended to raise  the new building   for  the domestic  and commercial  purpose,  by a joint venture agreement, between the OP No.1 and OP No.2 the developer in which complainant also   issued a no objection on assurance by OPs  that  he will be handed over a shop room in the said  newly constructed building. The fact  about  execution of joint venture agreement dt. 30.09.2009, has not been disputed and denied by OP no.1/owner. It is an admitted fact  that the possession of the shop room in the new building as per agreement dt. 30.09.2009, has also been handed over to the complainant. However, it is claimed  by the complainant that  subsequently an agreement was entered into  between the  complainant and  the OP No.1 on 31.01.2012 whereby  OP no.1 agreed to sell the said shop room  at a total consideration    price  of Rs. 60,000/-. According to the complainant  he has paid the entire consideration  price but  the same has been disputed and denied  by the OP No.1. The OP No.1 has   disputed and denied  the  execution of the said  agreement dt. 31.01.2012. Complainant in the instant complaint has prayed for directing the OPs to execute and register the sale deed as per the said agreement dated 31.01.2012 in respect of the shop room.

Apparently, alleged agreement dt.31.01.2012 has been entered into between the parties in respect of a shop room.  There cannot be any denial  and dispute  that the shop room  is purchased for the  use of commercial purpose. As per Section 2(d) of the Consumer Protection Act, if the service is hired  or the goods  purchased  for the commercial purpose then the person is not a ‘Consumer’ unless he/she purchases the same or hire  the services for the purpose of earning his or  her livelihood by means  of self-employment. On a careful  perusal of the  entire complaint, it appears that  the complainant has  nowhere stated  that the said shop room  was purchased by the complainant for the purpose of earning  livelihood  by means of self-employment. So, in the absence  of any recital  in the complaint,  since apparently  alleged agreement was to purchase a  shop room, which is  for commercial purpose, complainant  cannot be  a ‘ Consumer’ under the provision of Section 2(d) of the Consumer Protection Act.

Apart from this, it is apparent from the own case  of the complainant that  he was handed over   the possession  of the shop room as assured in the joint  venture agreement  after completion  of the construction work  and while in possession  of the said shop room  by the complainant,  the alleged agreement  dated 31.01.2012  was entered into  between the  complainant and the OP No.1 whereby  complainant agreed to purchase  the said shop room. It has been  specifically stated in the notice dated 11.03.2015  sent by the complainant through his Ld. Advocate that while possessing the said  shop room as a tenant in the  newly constructed building,  OP No.1 proposed to the complainant to purchase the said  shop room  at a total  consideration  price of Rs. 60,000/- and so the agreement   was entered into   on 31.01.2012. It is evident from the   document filed by the complainant that the construction of the building  was already completed and the possession of the shop room  was  handed over to the complainant. If that be the case   then on the date of alleged agreement dated 31.01.2012, complainant  did not hire any service. Alleged agreement was entered into in respect of a readymade  shop room   or a fully constructed  premise . In such a situation, it cannot be  said  that the  complainant  hired  or availed any housing construction service of the OPs by the said  agreement date d 31.01.2012. It was a simplicitor sale of a readymade shop room. So in this view of the matter also, present complaint is not maintainable and thus    liable   to be dismissed.

Point nos. 2 & 3 :  In view of the above  discussion in point   no.1, as the complaint is not maintainable , these points become redundant and thus not discussed.

Hence,

                 Ordered

RBT/CC/125/2016 is dismissed on contest against OP No.1 and exparte against OP No.2.