Judgment : Dt.19.4.2017

Mrs. Balaka Chatterjee, Member

            This case is filed by Sri Sanjay Banerjee, under Section 12 of the C.P.Act, 1986, alleging deficiency in providing housing construction service by the OP Sri Indrajit Ghosh.

            The case of the Complainant, in brief, is that the Complainant entered into an agreement for sale with the OP on 05.08.2015 in respect of a shop room having area of 60 sq.ft. more or less, to be constructed within the KMC premises having No.322/4, Putiary Banerjee Para Road, P.S.-Haridevpur, Ward No.115, Kolkata-700 041, at a consideration of Rs.4,00,000/-. It is stated in the petition of complaint that as per terms of the said agreement the OP was to have handed over possession of the said shop room within six months from the date of execution of the agreement. The Complainant has further stated that he, however, had to receive the charges for delay from the OP for non-delivery of possession of the said shop room within the stipulated period. The Complainant has stated that he had paid Rs.1,50,000/- at the time of execution of agreement for sale and, thereafter, a further amount of Rs.1,45,000/- to the OP towards consideration amount. Subsequently, the Complainant, as he has stated, offered Rs.5,000/- towards consideration of the said shop room but the OP did not accept the same for which he sent a cheque for Rs.5,000/- with covering letter on 30.09.2016 by post and as per postal report, the same have been delivered to the consignee. The Complainant has further stated that he, on several occasions, requested the OP to deliver possession of the said shop room by adjusting the consideration with the delay charges payable by the OP but the OP did not pay heed to that request.

            The Complainant further mentioned that the OP has taken back the sanctioned plan from the Complainant on plea of correction of the said plan but thereafter has failed to return the same to the Complainant. It is the specific allegation made by the Complainant that owing to non-delivery of the said shop room the Complainant has been compelled paying monthly installment and interest against huge amount of loan taken by him and also suffering from loss of opportunity as he could not start his planned business. Accordingly, the Complainant has prayed for direction upon the OP to handover possession of the said shop duly executing the sale deed including plan and release the amount of Rs.1,60,000/- along with interest @ 9% p.a. till payment in full. The Complainant has given break up of the claimed amount of Rs.1,60,000/- which is as follows :-

1. Incidental charges (L.S.)Rs.10,000.00

2. For mental agony and harassment (L.S.) - Rs.1,00,000.00

3. Litigation/ Court expenses (L.S.) – Rs.15,000.00

4. Compensation against interest of loan taken (L.S.) – Rs.5,000.00

5. < >

           Notice was served upon the OP but the OP did not appear and, therefore, the instant case vide order No.5 dt.27.2.2017, was fixed for ex-parte proceeding against the OP.

           The Complainant adduced evidence of an affidavit.

           In course of hearing, the Complainant, in person, has submitted the fact which has stated in the petition of complaint. The Complainant has also filed Notes of Arguments.

Decision

             Evidently, the Complainant entered into an agreement for sale with the OP in respect of a shop room on 5.8.2015. As per terms of the agreement, as the Complainant has stated, the OP ought to have delivered the said shop room within six months from the date of execution of the same. The Complainant has alleged that the OP did not deliver possession of the said shop room at all for which he had to suffer from loss of business and compelled to pay interest and in installments of money towards repayment of bank loan.

             Admittedly, the Complainant entered into agreement for sale in respect of the shop room for business purpose.

Further, the Complainant, in the petition of complaint, has declared by swearing affidavit that he, by profession, is a service holder. Therefore, intention for running business in the shop room in question is not for earning livelihood but for commercial purpose.

              Under such state of affairs the Complainant cannot be considered as a consumer under the OP as per provision of Section 2(1)(d) of the C.P.Act, 1986.

              In the result, the complaint case does not succeed.

Hence

         Order

              That the Consumer Complaint being No.CC/609/2016 is dismissed ex-parte but without any order as to costs.

              The Complainant is at liberty to approach before an appropriate court of law on same cause of action.