HON'BLE MR. KAMAL DE, PRESIDING MEMBER

Order No. 08

Date : 27.03.2019

Both parties are present through their Ld. Lawyers.

Appeal is taken up for further hearing.

Heard argument in full on both sides. Considered.

The present Appeal preferred U/Sec. 15 of the Consumer Protection Act is directed against order dated 31.08.2018 passed by the Ld. D.C.D.R.F., Burdwan in C.C. Case No. 66 of 2016.

Being aggrieved by and dissatisfied with the order dated 31.08.2018 passed by the Ld. D.C.D.R.F., Burdwan in Consumer Complaint Case No. 66 of 2016, appellants/OPs have preferred the instant Appeal on the ground as enumerated power.

It is alleged that the Ld. District Forum exceeded its jurisdiction in passing the impugned order allowing the complaint directing the OPs to pay total Rs. 21,82,030/- which is beyond pecuniary jurisdiction of the Ld. Forum below.

It is also alleged that the Ld. District Forum erred in law in facts without considering that the dispute between the parties was relating to sale of land and the Consumer Forum has no jurisdiction to control the matter and a claim for the specific performance of the agreement could lie only before the Civil Court and not before Consumer Fora.

It is also alleged that the failure to hand over the possession of the plot of land simply cannot come within the jurisdiction of the Consumer Fora.

It is also ventilated that whether a sale of plot of land is concerned the same could not be covered under Consumer Protection Act, 1986.

It is also alleged that the Ld. Forum below passed the judgement on surmise and conjecture and not on material evidence.

It is also alleged that the impugned order is bad and erroneous and is liable to be set aside.

The appellants have preferred the Appeal for setting aside the impugned order dated 31.08.2018 passed by the Ld. D.C.D.R.F., Burdwan in C.C. Case No. 66 of 2016.

The question remains whether the Ld. Court below committed any irregularity, illegally and impropriety in passing the impugned judgement dated 31.08.2018.

It appears that the respondent 1 being complainant filed C.C. case No. 66 of 2016 before the Ld. D.C.D.R.F., Burdwan against the appellants/OPs and other proforma respondents/OPs. Being Proforma OPs 4, 5 and 16 alleging deficiency in service and unfair trade practice on the ground of undelivery of the possession by executing and registering Deed of Sale in respect of schedule (B) of the complaint petition at the housing project named “Seser Kabita” within stipulated period i.e. 31.11.2013.

Ld. Forum below held the trial and on recording evidence and taken into account the material on record allowed the complaint and directing the appellants to make delivery of possession of plot of land mentioned in the (B) schedule of the complaint by effecting execution and registration Deed of Sale in favour of the complainant after receiving the residue amount of Rs. 2,79,000/- from the complainant within 60 days from the date of passing of the order and in default to pay back the entire amount of Rs. 15,21,000/- to the complainant along with interest @ 18% per annum, compensation of Rs. 5,000/- for mental pain and agony and litigation cost of Rs. 2,000/- etc. etc.

Being aggrieved by and dissatisfied with the impugned judgement dated 31.08.2018 passed by the Ld. D.C.D.R.F., Burdwan, the appellants have preferred this Appeal on the ground as stated earlier. The crux of controversy is whether the proposed sale of plat of land as mentioned in the schedule (B) of the original complaint is out and out. An agreement for sale or whether such proposed sale comes within the purview of development project. 

The next question is whether the Ld. Forum below has a pecuniary jurisdiction to try the case?

Let us first duel over the pecuniary jurisdiction of the District Fora. Section 11 of C.P. Act enunciates jurisdiction of the District Fora. “11. Jurisdiction of the District Forum subject to the other provision of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1 [does not exceed Rs. 20 lakh].

The value of services means the sale consideration agreed to be paid by the buyer to the seller. From the materials on record it is evident that the value of the disputed flats were Rs. 18 lakh and the complainant claimed Rs. 1 lakh as compensation. The total claim comes to Rs. 19 lakh. So, it is crystal clear that the claim of the complainant does not exceed the pecuniary jurisdiction of Rs. 20 lakh of the Ld. D.C.D.R.F.

What is the important is the value of goods or services and the compensation, if any, claimed?

We do not think that the Ld. Court below has not the pecuniary jurisdiction to entertain the case (Relied on the judgement of the Hon’ble National Commission in Ambarish Kumar Sukla and others V/S Ferrous Infrastructure Pvt. Ltd., Pushpalata Das V/S Dr. Sandip Kumar Roy & ors. in Revision Petition No. 2711 of 2018, in Sisir Das and Anr. V/S M/S. Unitech Ltd. in Consumer Case No. 396/2015).

Let us now switch over to other point of controversy. The question remains whether the proposed sale of plot of land as mentioned in the schedule (B) of the original complaint is out and out and agreement for sale or whether such proposed sale comes within the purview of development project?

We have perused the grouser ‘Sesher Kabita’ (Xerox copy) of M/S. K.S. Properties Services, the appellants as we find as proposed to sale plots, flats, bungalows in the proposed project ‘Sesher Kabita’.

We find that the OPs 2 and 3 as partners of OP 1 (M/S. K.S. Properties Services and Ors.) plan to developing the land mentioned in the schedule (A) of the complaint, thereby constructing multi storied building consisting of several self-contain flats as well as thereby deviating the land into different size of plot under the name and style of ‘Sesher Kabita’. OPs 4, 5 and 6 are the land owners of the property mentioned in the schedule (A) of the complaint. The complainant decided to purchase one plot of land described in the schedule (B) of the complaint to construct a residential house thereon from the OPs 1, 2 and 3 and OPs 2 and 3 after accepting the proposal have entered into an agreement with the complainant on 21.01.2013. As per the agreement the OPs 2 and 3 under obligation to deliver and transfer the title of 4.5 cottah of land in favour of the complainant subject to payment of Rs. 18 lakh i.e. Rs. 4 lakh per cottah. The complainant had already paid total of Rs. 1,52,100/- and also 17,100/- towards registration cost. But in spite of receiving the amount Rs. 15,21,000/- from the complainant, the OPs 2 and 3 have neither made any arrangement for execution and registration of the said flat in favour of the complainant nor delivered the possession of the said flat to the complainant.

It appears that the OPs 2 and 3 on behalf of OP 1 received the amount in question from the complainant. OPs 4, 5 and 6 being the land owners and have received no transaction from the complainant. The development agreement (though under development agreement is furnished before the agreement is supposed to be in between the OPs 2 and 3 on behalf of OP 1 and OPs 4, 5 and 6).

We also find that the schedule (B) of the complaint is part of schedule (A) of the complaint. From the materials on record it is evident that the subject matter of the original complaint was relating to non-delivery of possession of plot of land by developer at a housing project named ‘Sesher Kabita’. We have no hesitation to hold that this is a case relating to dispute of non-delivery of possession of development of plot of land by the developers at a housing project named ‘Sesher Kabita’.

We are afraid, we cannot hold that the purchased sale of plot of land as mentioned in schedule (B) of the original complaint is out and out an agreement for sale.

On a plain reading of grouser and leaflet of the M/S. K.S. Properties Services, we are constrained to hold that it is a project of development and marketing.

We find that the appellants are offering services to the respondents – complainants within the meaning of Consumer Protection Act, 1986. So, as to make it amenable to the jurisdiction of the fora established under the said Act. The sale is not on “as it is where it is” basis. The fact remains that the appellants promoted venture for development of land into housing side and invite the intending purchasers through paper publication and grouser to join as member.

It is, therefore, manifested that the transaction between the parties is not a sale simplicitor to coupled with obligation for development and paper infrastructure. Inability there is an element of services in the discharge of the said obligation (relied on the judgement of the Hon’ble Supreme Court of India reported in 2012 (5) SCC 359, relied on the judgement of the Supreme Court of India reported in 2016 (13) SCC 718, 2006 (3) BCR 36 : 2006 (2) ALL MR 726 : 2006 (19) R.C.R. (Civil) 535).

We find that the Ld. Forum taking evidence on record and having regard to the materials thereon has passed rightly the impugned judgement on 31.08.2018.

We do not find anything to interfere into the judgement passed by the Ld. lower Fora below.

In result, the Appeal fails.

Hence,

                                                                                       O R D E R

That the instant Appeal being No. A/16/2018 be and the same is dismissed on contest.

We make no order as to cost.

Let a copy of this judgement be supplied to the parties free of cost.