DATE OF FILING : 04.12.2014.
DATE OF S/R : 05.02.2015.
DATE OF FINAL ORDER : 14.12.2015.
Sri Ramendra Narayan Palchowdhury,
son of late Ardhendu Kumar Palchaudhury,
resident of 2, Narasingha Dutta Road, Kadamtala, P.S. Bantra,
District Howrah,
PIN 711101. …………………………………………………………… COMPLAINANT.
Sri Prajjal Nandi,
son of late Netai Nandi,
62/2/1, Ichapur Road, Kadamtala, P.S. Bantra,
District Howrah,
PIN 711101, and also of
67/68/1, Ichapur Road, Kadamtala, P.S. Bantra,
District Howrah,
PIN 711 101. ……... …………………………………………………OPPOSITE PARTY.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak .
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Ramendra Narayan Pal Chaudhury, against the o.p., Prajjal Nandi, praying for a direction upon the o.p. to pay him Rs. 1 lakh and to pay Rs. 10,000/- as damages.
- The case of the petitioner is that the o.p. is the owner of a self contained flat in the 2nd floor which is situated at 67/68/9, Ichapur Kadamtala, P.S. Bantra. As the o.p. desires to sell the flat and the petitioner intended to purchase the same, so the petitioner paid a sum of Rs. 1 lakh as advance to the o.p. but the o.p. showed his unwillingness when the petitioner further went to him for executing and registering the sale deed in his favour on receiving due amount. As the o.p. demanded Rs. 30 lakhs from him, the petitioner requested the o.p. to refund his money but he denied to repay the same advance money of Rs. 1 lakh and so the petitioner filed the case praying for refund of money as well as damages of Rs. 10,000/-.
- The o.p. contested the case by filing a written version denying the allegations made against him and submitted that the case is not maintainable and this Forum has no jurisdiction and also the case is barred by limitation. Further the case of the o.p. is that the o.p. is neither the developer nor the service provider but he is the true owner and occupier of the case mentioned flat and the petitioner not being a consumer here and this case does not come under the purview of the Forum and the petitioner manufactured some documents and allegedly filed this case which cannot be entertained by this Forum and the case be dismissed with costs.
- Upon pleadings of parties the following points arose for determination :
- Whether the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of his case the petitioner filed affidavit along with documents wherefrom it is noticed that the o.p. received a sum of Rs. 1 lakh from the petitioner on 09.08.2014 as advance towards sale price of his flat at second floor facing northwest at premises no. 67/68/9, Ichapur, Kadamtala, Howrah. Thus this document proved the fact that the petitioner paid a sum of Rs. 1 lakh to the o.p. for purchase of a flat. The o.ps. also in his written version conceded the fact that he took Rs. 1 lakh from the complainant for sale of his flat but submitted that the case is not maintainable before this Forum and the same be dismissed as the petitioner is not a consumer and the o.p. is never a service provider but for the said reason the advanced sum of Rs. 1 lakh cannot be consumed by the o.p.
6. This Forum heard the ld. counsel for the petitioner and the o.p. Ld. counsel for the o.p. submitted that here is no case of developing the property or constructing a house so that the o.p. is not a service provider and the petitioner is not a consumer as per Consumer Protection Act, 1986.
7. On scrutiny of the case record specially the documents being agreement while taking advance it is noticed from the details of the property that there was an agreement for purchase of a flat for which the petitioner paid a consideration money of Rs. 1 lakh. Here is no case that the o.p. is a builder or a promoter and selling plots or flats after developing the same. It is simply sale of a flat by one person to this petitioner on payment of a consideration money and thus the very nature of the transaction shows that it was a sale simpliciter and so this cannot be covered under the Consumer Protection Act, 1986.
8. Our National Commission in a recent judgment 2015 (2) CPR page 195 opined that sale of a plot simpliciter is different from plot sold by builders or promoters. National Commission in para 8 of the said judgment opined that there was no evidence that the petitioner in their case were working as builders. They are seller simpliciters. It must be born in mind that the sale of a plot or a flat simpliciter is different from the plot sold by the building or promoter. Our Apex Court also in the case of Ganeshlal, son of Motilal Sahu vs. Shyam in Civil Appeal No. 331 of 2007 held “It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ‘deficiency’ as quoted above. We may, however, note that when it comes to “housing construction”, the same has been specifically covered under the definition of ‘service’ by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing constructed by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter, the same would not be covered under the said Act.”
9. In view of above decision of the Apex Court as well as our National Commission and the facts of the present case being a simpliciter sale of a flat not by any promoter or developer also cannot come within the purview of this Forum and the petitioner is to approach the appropriate Forum for redressal of his grievances and regarding the point of limitation is concerned the petitioner can seek the help from the Apex Court Judgment in Laxmi Engineering Works vs. PSG Industrial Institute 1995 (3) Supreme Court Cases page 583.
In view of above discussion and findings this Forum finds that this case does not come under the purview of C. P. Act, 1986 and thus the non maintainability petition filed by the o.ps. here is allowed and issued decided against the petitioner.
In the result, the application fails.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 625 of 2014 ( HDF 625 of 2014 ) be and the same is not maintainable before this Forum and hence dismissed on contest.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
