FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant andthe complainant states that one Ramani Mohan Dutta was the owner and processor of the schedule property and he died leaving behind his two sons Dijendralal and Jitendralal and two married daughters namely Nilima Sarkar and Manika Kar Chowdhury who became co-sharer of ¼ undivided share each on the schedule property.

The complainant also states that after death of Dijendralal his legal heirs  became co-sharer of 1/18 undivided shares each on the schedule property and being one son Sri Asoke Dutta@ Ashok Kumar Dutta the Opposite Party No. 1  became co-owner of 1/18 undivided share in the suit property.

The complainant also states that on 06/01/2017 the opposite no. 2 came at the residence of opposite party no. 1 and thereafter the opposite party no. 2 did not come to execute and register her 1/15 share in favor of the petitioner on the next week although she received Rs. 60,000/- only from them and the complainant  requested a number of times to execute and register her 1/15 shares after taking the rest consideration amount of Rs. 10,000/- only but the opposite no. 2 avoided to do in different manner.

The complainant also states that thereafter the opposite party no. 2 did not came to execute and register her 1/15 share in favor of the complainant on the next week along with although she received Rs. 60,000/- only out of Rs. 70,000/- and the complainant requested a number of times to execute and register her j1/15 share after taking the rest consideration amount of Rs. 10,000/- only but the opposite party no. 2 avoided to do so in different manners.

The complainant also states that this type of activities from the part of the opposite party no. 2 is not only illegal but also designed with malafide intention when the petitioner are ready and willing to pat her the rest consideration amount of Rs. 10,000/- and the opposite party no. 2 received the money by cheque and cash for execution and registration of her 1/15 undivided share of the schedule property but she refused to do so.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 10,000/- for execute and register a Sale Deed of her 1/15 undivided share of the schedule property in favour of her and to pass such other order/orders may deem fit.

Defense Case:-       The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  This opposite party submits that the opposite party no. 1 transferred his 1/18^th undivided share to the complainant by a registered sale deed and the opposite party no. 2 was willing to sell her 1/15^th undivided share and after discussion the total consideration amount of 1/15^th undivided share of opposite party no. 2 was fixed as Rs. 70,000/- and the complainant paid a sum of Rs. 50,000/- as advancebut the opposite party no. 2 did not execute and register her 1/15^th share of the schedule property. On 6.1.2017 the opposite party no. 2 came at the residence of opposite party no. 1 and both of them requested the complainant to pay Rs. 10,000/- and complainant told to take Rs. 20,000/- and execute and register the schedule mentioned property in favour of them. Then the opposite party no. 2 assured them to do so and thereafter the complainant paid Rs. 10,000/- on 6.1.2017 but the opposite party no. 2 failed to execute and register the deed of conveyance in respect of her 1/15^th share.  The opposite party no. 1 already sold out his undivided 1/18^th undivided share to the complainant so the opposite party no. 1 prayed to dismiss the instant case against him as he is an unnecessary party and no cause of action arose against him.

            The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  This opposite party submits thatshe never agreed to sell her 1/15^th undivided share of the schedule property at the consideration of Rs. 70,000/- and she never received any cash of Rs. 10,000/- from the complainant as alleged and the complainants were not ready and willing to pay the balance actual consideration amount as has been fixed i.e. Rs. 6,50,000/- for the schedule mentioned property and started taking different dilatory tactics.The opposite party no. 1 and the complainants after bargaining agreed to purchase her undivided 1/15^th share at a price of Rs. 7,00,000/- only and they also told that they are sending Rs. 50,000/- as an earnest money and assured that within six months they will pay the remaining consideration amount i.e. Rs. 6,50,000/- and will make the arrangement of registration of the sale deed but they did not informed her about the registration and the opposite party no. 2 is all along ready and willing to sell her undivided 1/15^th share in the schedule property after receiving the balance consideration money i.e. Rs. 6,50,000/- and prayed to dismiss the instant case with cost.

            Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.

         Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

         DECISIONS WITH REASONS

All the points of consideration and/ or issues adopted in this case are clubbed together and taken up for discussion jointly as the questions involved relating to these points consideration are interlinked and/ or inter connected with one another. For the purpose of determining the fate of the above noted points of consideration this District Commission finds that there is necessity of detecting the admitted facts of this case. In this regard this District Commission after going through the materials of this case record finds that over the following points there is no dispute in between the parties of this case:-

1. It is admitted fact that Ramani Mohan Dutta was the original owner and possessor of the scheduled mentioned property which has been described in the complaint petition of this case.
2. It is also admitted fact that the scheduled mentioned property is a bastu land measuring about 5 chattaks38.47 sq.ft. with 50 sq.ft. asbestos shed situated at R.S. plot no. 1796 under R.S. Khatiya no. 1496 corresponding to L.R. dag no. 2064 under L.R. khatiyan no. 1028, 1166, 1418, 2232 of Mouza Bally P.S. Chinsurah Dist. Hooghly and the said property is situated under Chinsurah Municipality holding no. 250/221 (old) and 59/250/221 (new) under word no. 9.
3. There is no controversy over the issue that said Ramani Mohan Dutta owner and possessor of the schedule mentioned property expired.
4. There is no dispute over the issue that said Ramani Mohan Dutta died leaving behind 2 sons namely Dijendralal and Jitendralal        and two married daughters namely Nilima Sarkar and Manika Kar Chowdhury.
5. It is admitted fact that after the death of Ramani Mohan Dutta his legal heirs became co-sharer of 1/4^th undivided share each on the schedule mentioned property.
6. It is also admitted fact that after the death of Dijendralal his legal heirs became the co-sharer of 1/18^th undivided shares each on the schedule mentioned property.
7. There is no controversy over the issue that Sri Ashok Dutta alias Ashok Kumar Dutta (op no. 1) became co-sharer of 1/18^th undivided share of the schedule mentioned property.
8. There is no dispute over the issue that op no. 2 is also a co-sharer in respect of the schedule mentioned property in respect of 1/15^th share.
9. It is admitted fact that the op no. 1 transferred his 1/18^th share to the complainant by way a registered sale deed.
10. It is also admitted fact that op no. 2 also interested to transfer her 1/15^th undivided share of the schedule mentioned property.                  

On the background of the above noted admitted facts and circumstances this District Commission after going through the materials of this case record finds that the op no. 2 has filed a petition stating that this case is not maintainable on 24.7.2019 but the said petition which is filed by op no. 2 on 24.7.2019 has not yet been disposed of. For that reason this maintaibility point is to be determined at first.

In this regard it is important to note that the complainants intends to purchase the property of the op no. 2 for the purpose of development of the property which is undoubtly a commercial purpose for the purpose of earning profit. In other word it can be said that the complainant had the intention to purchase the disputed property for commercial purpose and so question can be raised as to whether complainant is a consumer in the eye of law or not? In this regard provisions of Section 2 (1) (d) of the Consumer Protection Act 1986 is very important. In this regard it is settled principle of law that consumer as defined in the above noted Section of the Consumer Protection Act 1986, he will have to establish that services were availed exclusively for the purposes of earning his livelihood by means of self employment. This legal principle has been observed by the Hon’ble Apex Court in the case of Shrikant G. Mantri vs. Punjab National Bank which is reported in II (2022) CPJ 9 (SC). In this instant case the complainant has failed to prove that services were availed by him exclusively for the purpose of earning his livelihood by way of self employment. In this regard it is very important to note that the complainant has failed to produce any cogent evidence and documents in this case to prove the above noted issue. In this regard it is also settled principle of law that there cannot be any strait jacket formula and as such question will have to be decided on the basis of evidence on record. As the complainant has failed to produce any evidence to show that he availed the services exclusively for the purpose of earning for his livelihood by means of self employment, it can be ascertained that complainant  is not a consumer.

A cumulative consideration of the above noted discussion goes to show that the complainant intended to purchase the property of op no. 2 for commercial purpose and complainant is not a consumer under Section 2 (1) (d) of Consumer Protection Act, 1986 and so this case is not maintainable.

Moreover, in this case the complainant has adopted the plea that the op no. 2 inspite of getting advance money has not transferred the property to the complainant. In this regard it is very important to note that the complainant has failed to prove any agreement for sale which was executed in between complainant and op no. 2. For argument shake if it is considered that there is existence any such agreement, in that event also the complainant had the jurisdiction of initiating civil case for specific performance of contract. Inspite of filing said suit being no. T.S. no. 72 of 2022 of the Court of Civil Judge (Sr.) Division First Court, Chinsurah, Hooghly the complainant has approached before this Forum for the purpose of getting direction for execution and registration of the sale deed in respect of the property of op no. 2 but as per provision of Section 9 of the Civil Procedure Code this Forum/ Commission has no jurisdiction to entertain such case.

A cumulative consideration of the above noted discussion goes to show that this case is not maintainable and this District Commission/ District Forum has no jurisdiction to try this case. As this case is found not maintainable and this District Commission has to jurisdiction to try this case, this District Commission finds no further reason to discuss the other points of consideration of this case.

In the result it is accordingly,

ordered

that the complaint case being no. 74 of 2017 be and the same is dismissed on contest.

No order is passed as to costs.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.