MRS. FIROZA KHATOON, PRESIDENT
The case of the complainant is that he entered into an agreement for sale on 19.03.2018 with the opposite party nos.1 and 2 to purchase one self contained flat having super built up area 500 sq. ft. (south east corner) on the 2nd floor of a multi storied building named as “Aloka Bhavan” at premises no.28/1, Latafat Hossain lane, P.S. Beliaghata, Kolkata-700010 together with undivided proportionate share in the land along with right to use of common areas, common facilities and amenities annexed with the premises at a consideration of Rs.17,00,000/- (Rupees seventeen lakhs) only.
It is alleged by the complainant that the condition of the agreement was to execute and register the deed of conveyance after completion of the said flat in habitable condition within 24 months of the date of agreement.
According to the complainant since 11.08.2017 to 11.05.2018 he had paid a total amount of Rs.13,20,000/- (Rupees thirteen lakhs twenty thousand) only to opposite party nos. 1 and 2 on different dates by cheques and/or cash. On 18.04.2018 the opposite party nos.1 and 2 delivered possession of the flat after its completion with a promise to obtain clearance certificate from the Kolkata Municipal Corporation and to execute deed of conveyance in favour of the complainant. Since obtaining possession of the flat, the complainant has been paying proportionate maintenance charges month by month to the opposite party nos.1 and 2. The complainant alleged that in spite of repeated demands the opposite party nos. 1 and 2 have not executed the deed of conveyance of the said flat neither provided him the completion certificate of the Kolkata Municipal Corporation. Being suspicious of the conduct of opposite party nos. 1 and 2, the complainant made searches in Court and in the office of the Sub-Registrar, District Registrar and Registrar of Assurance and came to know that opposite party no.3 has filed Title Suit no.170/2016 before the Ld. 1st Court of Civil Judge (Junior Division) at Sealdah for declaration and injunction against opposite party nos. 1 and 2 in respect of premises no.28/1, Latafat Hossain Lane, P.S. Beliaghata, Kolkata-700010. The Ld. Civil Judge (Junior Division), Sealdah had been pleased to pass an order of interim injunction against the opposite party no.1 in respect of the suit premises which is still subsisting. The complainant came to know that the predecessor in interest of opposite party nos.1 and 2 had entered into a development agreement with opposite party no.3 on 14.12.2012, where by the opposite party no.3 agreed to develope a multi storied building at the suit premises as per terms and conditions of the aforementioned development agreement. Accordingly, the predecessor in interest of opposite party nos.1 and 2 had executed a power of attorney in favour of opposite party no.3. During the period of the aforementioned development agreement, the predecessor in interest of opposite party nos.1 and 2 has died. Thereafter, opposite party nos.1 and 2 on 01.09.2014 executed a fresh development power of attorney in favour of the opposite party for completion of the construction work at the suit premises. Due to some dispute between the parties opposite party nos.1 and 2 revoked the power of attorney by a register deed of revocation. The complainant after knowing the above facts asked the opposite party nos.1 and 2 as to why they suppressed the fact at the time of execution of the agreement for sale between them. The opposite party being annoyed filed Title Suit no.341/2019 before the Ld. 1st Court, Civil Judge (Junior Division), Sealdah against the complainant for his eviction from the suit premises. According to the complainant he is ready and willing to make payment of the balance consideration amount to the opposite party nos.1 and 2 for completion of the transaction of the agreement for sale dated 19.03.2018. The complainant alleges that filing of Title Suit no.341/2019 against the complainant for his eviction from the suit flat without complying the terms and conditions of the agreement for sale dated 19.03.2018 tantamounts to deficiency in service and harassment to the complainant. The complainant has prayed for a direction upon the opposite parties to execute and register the deed of conveyance in respect of the flat mentioned in the schedule of the complaint application in his favour on receiving the balance amount of consideration and further direction to deliver the possession of the flat in his favour inter alia on other reliefs.
Opposite party no.3 though appeared in the case by filing vakalatnama but has not filed any written version in this case.
Opposite party nos.1 and 2 by filing written version state that they being the joint owners of the self contained residential flat being flat no.2B, on the 2nd floor at the premises no.28/1, Latafat Hossain lane, P.S. Beliaghata, Kolkata-700085 entered into an agreement for sale dated 19.03.2018 with the complainant. The total consideration amount of the flat was Rs.17,00,000/- (Rupees seventeen lakhs) only and the complainant has paid Rs.13,20,000/- (Rupees thirteen lakhs twenty thousand) only to them in advance. As per terms of the agreement for sale dated 19.03.2018, the complainant has to pay the balance consideration amount within 24 months from the date of execution of the agreement for sale or at the time of registration of the deed of conveyance whichever is earlier. On 18.04.2018 the complainant requested the opposite party nos.1 and 2 to allow him to perform puja in the said flat on the eve of Akshaya Tithiya. The complainant assured that after puja he will return the keys of the flat within three days from the date of Akshaya Tithiya. Believing the complainant, the opposite parties handed over the keys of the flat to the complainant. But the complainant has deliberately failed, neglected and refused to vacate and hand over the possession of the flat. As the complainant fail to return the keys of the flat on repeated demands, the opposite parties filed Title Suit No.341/2019 before the Ld. 1st Court, Civil Judge (Junior Division), Sealdah for his eviction. It is alleged by the opposite party nos.1 and 2 that the complainant being defendant appeared in Title Suit No.341/2019 and submitted a copy of agreement for sale dated 19.03.2018 along with his written objection against the injunction application wherein it appears that he has tampered a portion of the agreement for sale dated 19.03.2018 for which the opposite parties lodged complaint before the concerned police stations and accordingly cases started being Beliaghata police station Case No.93 dated 30.04.2021 and Entally police station Case No.199 dated 27.05.2021. According to the opposite party nos.1 and 2 the complainant is not a consumer as defined in the Consumer Protection Act, 2019 as such he is not entitled to get any relief as prayed for. The case of the complainant is liable to be dismissed in limini.
Points for determination
- Is the complainant a consumer in terms of Consumer Protection Act, 2019 ?
- Is the complainant entitled to get relief or reliefs as claimed for ?
Decision with reasons
In order to prove the case, the complainant has submitted evidence on affidavit and affidavit in reply to the questionnaire of opposite party nos.1 and 2.
No documentary evidence has been submitted on affidavit of the complainant in compliance with section 38(9)(c) of the Consumer Protection Act, 2019.
On the other hand the opposite party nos.1 and 2 submitted their evidence on affidavit and affidavit in reply to the questionnaire of the complainant.
The document submitted on affidavit by the opposite party nos.1 and 2 as evidence are marked as follows :-
Document A : Agreement for sale dated 19.03.2018.
Document B : Letter dated 22.10.2018 by Advocate Mrs. Mala Dasgupta to complainant.
Point no.1
This important point is taken up for consideration and discussion.
The complainant in his complaint application as well as in his evidence stated that he entered into an agreement for sale on 19.03.2018 with opposite party nos.1 and 2 to purchase one self contained flat having super built up area about 500 sq. ft. in the south east corner on the 2nd floor of a multi storied building named as “Aloka Bhavan” situated at premises no.28/1, Latafat Hossain Lane, P.S. Beliaghata, Kolkata-700010 at a total consideration of Rs.17,00,000/- (Rupees seventeen lakhs) only out of which he, on different dates, paid in total a sum of Rs.13,20,000/- (Rupees thirteen lakhs twenty thousand) only by cash and/or cheques to opposite party nos.1 and 2.
The complainant further stated that as per terms and conditions of the aforementioned agreement for sale dated 19.03.2018, the opposite party nos.1 and 2 were to make the flat in habitable condition within 20 months and the opposite party nos.1 and 2 shall execute the deed of conveyance in his favour and also to provide him completion certificate issued by the Kolkata Municipal Corporation.
The complainant in his evidence has not submitted the agreement for sale dated 19.03.2021. On the other hand, the opposite parties in their evidence submitted the agreement for sale dated 19.03.2018 (Document - A). The opposite party nos.1 and 2 categorically stated in their written version as well as in evidence that they are the joint owners of a self contained residential flat being flat no.2B on the 2nd floor at the premises no.28/1, Latafat Hossain Lane, P.S. Beliaghata, Kolkata-700085 and they had entered into an agreement for sale dated 19.03.2018 with the complainant wherein they both jointly agreed to sale the said flat to the complainant and the complainant agreed to purchase the said flat for a total agreed consideration amount of Rs. 17,00,000/- (Rupees seventeen lakhs) only. Thereafter, the complainant paid a sum of Rs. 13,20,000/- (Rupees thirteen lakhs twenty thousand) only towards advance amount to the opposite party nos.1 and 2.
The above evidence of the opposite party nos.1 and 2 and the agreement for sale dated 19.032018 (Document – A) has not been denied by the complainant during cross examination of the opposite party/witness by way of filing questionnaire.
It is apparent from ‘Document – A’ as well as evidence of opposite party nos.1 and 2 that the complainant entered into an agreement for sale dated 19.03.2018 to purchase a completely constructed self contained residential flat being flat no.2B on the 2nd floor at the premises no.28/1, Latafat Hossain lane, P.S. Beliaghata, Kolkata-700085 fully mentioned in the schedule of the complaint application as well as in the schedule of the agreement for sale dated 19.03.2018 (Document – A). Nowhere in the agreement for sale dated 19.03.2018 we find the said flat was in inhabitable condition and/or the work of construction of the flat are yet to be completed and/or the opposite party shall complete the alleged incomplete work of construction of the flat. The pleading and evidence of the complainant to the tune that there was condition between the parties in the agreement for sale dated 19.03.2018 that the opposite party nos.1 and 2 shall complete the flat in habitable condition and after completion of the said flat with habitable condition, the opposite party nos.1 and 2 shall register the deed of conveyance within 24 months thereof do not get any support from the agreement for sale dated 19.03.2018. On the other hand, the agreement for sale dated 19.03.2018 clearly suggests that there was an agreement between the parties to sell and purchase of a fully constructed flat.
Therefore, the contrary evidence of the complainant cannot be relied upon in view of section 91 of the Indian Evidence Act.
The agreement for sale dated 19.03.2018 (Document-A) which remains un-rebutted and unchallenged by the complainant in this case. It is apparent on the face of the record that vide agreement for sale dated 19.03.2018 the complainant has not availed of any service of ‘Housing Construction’ in terms of section 2(42) of the Consumer Protection Act, 2019 for a consideration from the opposite party nos.1 and 2 in this case.
The definition of service is laid down in Section-2(42) of the Consumer Protection Act, 2019 as follows:
“(42) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”
It is needless to reiterate that the complainant entered into an agreement for sale dated 19.03.2018 with the opposite party nos.1 and 2 to purchase a fully constructed flat at premises no. 2B on the 2nd floor at the premises no.28/1, Latafat Hossain lane, P.S. Beliaghata, Kolkata-700085 fully described in the schedule of the complaint application as well as in the agreement for sale dated 19.03.2018 (Document-A).
Therefore, we have no hesitation to hold that the complainant has not availed of any service of ‘housing construction’ from the opposite party nos.1 and 2 as such he is not a consumer in terms of Section 2(7) of the Consumer Protection Act, 2019.
Therefore, Point No.-1 is decided against the complainant.
Point No.-2
In view of an answer of Point No.1 we refrain from discussing Point No.2 in this case.
Thus, the Point No.2 is disposed of.
Consequently the complaint case fails.
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest against opposite party nos.1 and 2 and ex-parte against opposite party no.3 with cost.
Dictated and corrected by me
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President
