West Bengal

South 24 Parganas

CC/393/2015

Sri Babon Malakar, S/O Late Sudhir Malakar. - Complainant(s)

Versus

Sri Badal Jana, S/O Late Surendra Nath Jana. - Opp.Party(s)

Sk. Habibur Rahaman.

01 Mar 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _393   OF ___2015____

 

DATE OF FILING : 1.9.2015     DATE OF PASSING JUDGEMENT:_01.03.2016 __

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu                    

 

COMPLAINANT                  :  Sri Babon Malakar, s/o late Sudhir Malakar of Ground Floor, 259, Raipur Road, P.O Regent Estate, P.S Jadavpur Now Netaji Nagar, Kolkata – 92.

 

-VERSUS  -

 

O.P/O.Ps                                :     Sri Badal Jana, s/o late Surendra Nath Jana of 259, Raipur Road, P.O Jadavpur now Netaji nagar, Kolkata – 92.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that due to financial crisis the O.P decided to sale his one self contained residential flat on entire ground floor (except a shop room on the eastern side of the building ) measuring about 750 sq.ft super built up area  along with one room on the mezzanine floor measuring about 98 sq.ft super built up totaling 848 sq.ft area consisting of two bed rooms, one small room, one kitchen, one dining space, two toilet and one verandah  for the total consideration of Rs.17,50,000/- . Complainant already paid Rs.16,95,000/- to the O.Ps and he is in possession of the flat . Complainant requested them to execute and register the sale deed receiving remaining amount of Rs.55000/- but the O.Ps failed and neglected to do so. Several requests following by lawyer’s notice dated 26.7.2015 yielded no result and hence this case, praying for execution and registration of the deed of conveyance in respect of the schedule flat , ,alternatively through machinery of the Forum, cost and compensation.

            The O.P inspite of serving summon did not appear  and lastly on 11.2.2016 ,though appeared and filed a petition for vacating exparte order, but the same was rejected and case proceeded in exparte.

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

 

Decision with reasons

            We are taking the first point for discussion.

            After scrutinizing vividly all the documents brought before this Forum by the complainant and hearing minutely the case of the complainant from his Ld. Advocate it appears that O.P/owner has agreed to purchase the unit being all that piece and parcel of entire ground floor to the complainant and consideration is fixed at Rs.17,50,000/- (vide agreement for sale dated 22.11.2013). From the four corners of the complaint petition, evidence and specifically from the aforesaid agreement for sale it appears that in the instant case complainant is the intending purchaser of a immovable  property of O.P and there is no whisper of construction in the whole agreement for sale nor in the complaint petition. As per Section 2(1)(d)(ii) of the C.P Act, 1986 “Housing Construction” is within the purview of the Consumer Forum. But only transfer of immovable property is sale of simpliciter and the same is not adjudicable under the purview of the C.P Act. Specifically ,the instant case is spe cific case under the Specific Relief Act, 1964. Therefore, being District Consumer Forum, this Bench  has no power to adjudicate the instant case and the same is liable to be dismissed for want of jurisdiction as complainant is not a “consumer” under Section 2(1)(d)(ii) of the C.P Act, 1986 and the O.P has not rendered any “Service” as per definition under section 2(1)(d)(o) of the C.P Act, 1986. .

            Thus the point no.1 is discussed and the same is against the complainant. Therefore, we feel no justification to discuss the other points and the complaint is dismissed without cost.

            Hence,

                                                                        Ordered

That the case be and the same is dismissed without cost for want of jurisdiction with a liberty to the complainant to file the case of resh  with selfsame cause of action at competent Court of Law.

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President                                

 

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                   

                        Ordered

That the case be and the same is dismissed without cost for want of jurisdiction with a liberty to the complainant to file the case  with selfsame cause of action at competent Court of Law.

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President