Ld. Advocate(s)
For Complainant: Patanjal Lahiri
For OP/OPs : None
Date of filing of the case :11.01.2021
Date of Disposal of the case : 02.06.2023
Final Order / Judgment dtd.02.06.2023
Complainants above named filed the present complaint against the aforesaid OP praying for direction to execute the deed in respect of landed property mentioned in the petition in favour of the complainants as per terms and conditions of the agreement, compensation amounting to Rs.50,000/-, direction to refund Rs.50,000/-, litigation cost of Rs.25,000/- and other reliefs.
They alleged that complainant no.1 made an agreement on 05.12.2019 and according to the terms and conditions of the agreement complainant no.1 paid Rs.50,000/- to the OP. OP after receiving the aforesaid amount of Rs.50,000/- promised to execute the schedule property being Mouza No. 92 Krishnagar, Dag No.269 (Partly) LR no.960 (partly) area .71 decimal under Krishnagar Municipal area in favour of the complainant no.1. After receiving the said amount OP did not take any necessary steps to transfer the aforesaid property in favour of complainant no.1 and adopted illegal method to deprive the complainant no.1. OP NO.1 violated the terms and conditions of the aforesaid agreement and deprived the complainants from getting natural justice. Complainant no.1 paid the said amount through his son that is complainant no.2 by cash. Hence this complaint.
On perusal of order no.3 dated 07.04.2021, we find that OP received the summoned on 09.02.2021 but did not turn up.
On perusal of record we also find that OP did not turn up before this Commission till 16.11.2021.
Case is running ex-parte against him as per order dated 16.11.2021.
Trial
During trial complainants filed affidavit in chief.
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Documents
Complainants produced the following documents viz :
- Colour Xerox copy of agreement dated 05.02.2019........(Three sheets)
- Colour Xerox copy of Aadhar Card .........(One sheet)
- Colour Xerox copy of letter sent by complainant no.1 to OP along with Postal Receipt..........(One sheet)
- Colour Xerox copy of letter of complainant no.1 to OP .........(One sheet)
Brief Notes of Argument
Complainant filed BNA on 21.09.2022.
Decision with Reasons
We have carefully gone through the petition of complaint filed by complainants, affidavit in chief filed by complainant no.1, documents filed by the complainants and BNA filed by the complainants. We have carefully considered the same.
It is the allegation of the complainants that OP by executing one Binanama agreed to sale .71 decimal land in favour of the complainant no.1. As per the said document he executed the same on 05.12.2019. As per the said document value of the aforesaid property was fixed Rs.6,80,000/- and out of said amount complainant no.1 paid Rs.50,000/- in favour of the OP. As per the said agreement complainants was agreed to pay remaining amount of Rs.6,30,000/- in favour of the OP within 31.01.2020.
Complainants alleged in the petition of complaint that OP did not take any necessary steps for execution of sale deed. He violated the terms and conditions of aforesaid Binanama dated 05.12.2019. It is clear before this Commission that OP executed one Binanama in favour of complainant no.1. He has violated the said agreement. Hence the complainants filed this case.
We have carefully gone through petition of complaint and other materials on record.
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It transpires from the complaint petition and other materials on record and having due consideration of the submission of the Ld. Advocate for the complainants we find that complainant had entered into an agreement for sale with the O.P on 05.12.2019 for purchasing of a plot of land as mentioned above at a consideration of Rs. 6,80,000/- ( Rupees Six lakh eithty thousand Only) and out of which complainant no. 1 paid Rs. 50,000/- as advance amount.
It is the contention of the Ld. Advocate for the Complainants that O.P violated the terms and conditions of the agreements. O.P did not refund the advance amount of Rs.50,000/( Rupees fifty thousand Only) despite serving of notice and therefore they filed the instant case before this District Commission for proper redressal.
Further, upon scrutiny of the documents annexed by the Complainants it is found that the property in question is an immovable property and therefore no element of hiring of any service is 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.
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(7) 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.
We have carefully gone through Section 2(7) which read as under:-
- 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
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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
- 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.
In view of above, the complainants are not consumers as per the definition of consumer as provided u/s 2(7)(ii) of the C.P.Act,2019 because the complainants did not hire or availed of any service for a consideration which has been paid.
Here, the complainants are not consumers under the O.P, as the element of service is lacking over here. The relationship in between the complainants and O.P is not consumer- service provider and the dispute is not a consumer dispute at all.
In this contest we have carefully gone though the decision in 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
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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
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 it is the settled principle of law.
In an unreported judgment, Hon’ble Supreme Court in Sri. Hemant Gupta and Sri. A.S. Bopanna dtd. 11.09.2021 observed that Consumer Complaints on the ground of deficiency in service related to transfer of title of the immovable property is not maintainable. The expression service includes housing construction and not allotment of a site or a plot.
Further, in Smt. Simran Vaswani & Anr Vs Vimal Kumar Sigh, Hon’ble State Commission, Chhattisgarh, in Appeal No: F.A/462/2017 dated 09.09.2017 was pleased to hold the view that purchaser of an immovable property is not a consumer.
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 and Hon’ble State
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Commission, this Commission is of the considered opinion that the present complainants are not consumers under the O.Ps and the dispute is not a consumer dispute at all and there exists no relationship between the complainants and the O.P as consumer- service provider relationship as the complainants 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 agreements it is also crystal clear that the transactions were for outright sale of an immovable property .
In view of above, it is clear before us that complainants cannot be treated as consumer. Aforesaid dispute also does not come under the Consumer Protection Act, 2019.
Having regard to the aforesaid discussion, it is clear before us that aforesaid complaint is not maintainable before this Commission.
Hence,
It is
Ordered
that the present case be and the same is dismissed, ex-parte against the OP but without any order as to costs.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
