DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

   SOUTH 24 – PARGANAS,

   AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

             C.C. CASE NO. 140  OF 2018

DATE OF FILING: 11.12.2018                  DATE OF JUDGEMENT:  10.7.2019

Present                 :   President       :   Ananta Kumar Kapri

                                 Member         :   Jhunu Prasad                        

COMPLAINANT      :  Smt. Mitali Barman @ Mitali Mandal, daughter of Late Jatindranath Mandal of 31, Sahid Khudiram Sarani, North Dum Dum Dum, North 24-Parganas, Pin-700049 and also residing at Aparna, Phase-II, Ghasiara, P.S Sonarpur, Kolkata-150.

• VERSUS  -

O.P/O.Ps                    :  Sri Dipankar Biswas,son of Sri Kashinath Biswas, Vill. & P.O Arampur, P.S Gosaba, Dist. 24-Parganas (S),Pin-743370.

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JUDGMENT

Sri Ananta Kumar Kapri, President

           Persistent refusal on the part of the O.P to execute and register a deed of conveyance in favour of the complainant in respect of her flats has galvanized the complainant to file the instant case under section 12, C.P Act, 1986 , alleging deficiency in service on the part of the O.P.

                   Facts leading to the filing of the instant case by the complainant may be epitomized as follows.

          The complainant has purchased two flats in the three storied building of the  O.P owner. One flat measuring 400 sq.ft on the first floor of the building and another flat measuring 300 sq.ft on the second floor of the said building. The complainant purchased the two flats by virtue of a sale agreement dated 23.2.2017. Total consideration price was fixed to be Rs. 15 lac for the two flats and out of it, Rs.12,70,000/- has been paid by the complainant part by part to the O.P. But neither has the possession of the flats been delivered to the complainant by the O.P owner ,nor was the deed of conveyance executed and registered in favour of the complainant by the O.P despite repeated requests made by the complainant to the O.P in this regard. Now, the complainant prays for possession of the flats ,registration of the same and also for compensation etc.

           The O.P has been contesting the case by filing written version ,wherein it is stated that the Consumer Forum has no jurisdiction to entertain this case. The positive case as made out in the written version by the O.P is that one Robin Barman was a licensee under the O.P in one room at Rs.4,500/- as license per month. Money receipts granted by the O.P to the complainant are in relation to the payment of license fee to the O.P by the husband of the complainant. That apart, the O.P took some money for his personal purpose from the husband of the complainant and he returned that money to her husband by way of bank transfer. The alleged payment of the consideration price by the complainant is strongly denied by the O.P. The further case of the O.P is that the subject building is mortgaged to Bandhan Bank and the said property has not been free as yet from that bank. According to the O.P, there is no cause of action arising to file the instant case by the complainant and, therefore, the case should be dismissed in limini.

          Upon the averments of the parties, the following points are formulated for consideration.

                                      POINT FOR DETERMINATION

1. Is the case maintainable in law?
2. Is the O.P guilty of deficiency in service as alleged by the complainant?
3. Is the complainant entitled to get relief or reliefs, if any,  as prayed for?

  EVIDENCE OF THE PARTIES    

           Evidence on affidavit is filed by the complainant and the O.P and the same is  kept in the record. BNAs filed by the parties are also kept in the record after consideration.

DECISION WITH REASONS

Point no.1  :

            Already heard the arguments advanced by the Ld. Advocates of the parties. Perused the petition of complaint, written version and the materials on record. Considered all these.

              It is the averment of the complainant herself , as it transpires in the petition of complaint, that the O.P is the owner of the subject building and that the said O.P agreed to sell two flats – one measuring 400 sq.ft and another measuring 300 sq.ft to her for a total consideration price of Rs.15 lac. The complainant also paid Rs.12,70,000/- ,although part by part to the O.P. From these averments of the complainant, it is crystal clear that the complainant made an agreement to purchase the subject flats from the O.P. There is no agreement for providing any service to the complainant by the O.P. The complainant purchased two fully constructed flats from the O.P. She has no allegation that the constructions of the flats are yet incomplete and that the O.P is required to complete the construction of the building in terms of the agreement. There is no averment in the petition of complaint of the complainant that the O.P has defaulted in providing any service to the complainant in respect of her two flats as agreed upon between the parties.

            Taking all these into consideration ,we feel no manner of hesitation to say that a mere purchase of flat does never fall within the term “Housing Construction” transpiring under section 2(1)(o) , C.P Act, 1986. The transaction between the parties is ,therefore, held to be nothing but a sale simpliciter and so the case before the Consumer Forum appears to be not maintainable in law.

           That apart, no cause of action for filing this case has also arisen in favour of the complainant. In the sale agreement dated 23.2.2017 ,which is executed by and between the parties, it is mentioned clearly that subject flat                           

s will not be registered in favour of the complainant until and unless the subject building is free from mortgage from Bandhan Bank.

           Regards being had to this aspect of the matter, we are also inclined to hold that there has been no cause of action arising in favour of the complainant to bring the instant case.

           Point no.1 is thus answered against the complainant.

           Point nos. 2 and 3 , in view of what has been discussed in point no.1, are also decided against the complainant.

           In the  result, the case fails.

            Hence,

                                                                   ORDERED

            That the complaint case be and the same is dismissed exparte against the O.P , but without any cost.

                        Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.

                                                                                                                   President

I / We agree

                                                          Member

          Dictated and corrected by me

                             President