This is a complaint made by one Sri Amar Chandra Dutta, son of Late Dhirendra Nath Dutta, residing at 1213, Sarkar Hat Lane, P.S. – Sarsuna, Kolkata – 700 061 against Sri Samir Chaki, son of Late Sudhir Chaki of 388, Dakshin Behala Road, P.S.- Sarsuna, Kolkata-700 061, praying for an order directing the OP to execute and register the deed of conveyance in favour of the Complainant in respect of the self contained flat No.B-6, Top Floor, measuring more or less 800 sq.ft. lying and situated at 12/3, Sarkar Hat Lane, Kolkata-61 and an order directing the OP to pay Rs.1,70,000/- and litigation cost of Rs.30,000/-.

            Facts in brief are that Complainant is a retired person. OP is the absolute owner of the landed property, lying at 12/3, Sarkarhat Lane, P.S.- Sarsuna, Kolkata-61. OP developed his land and constructed a multistoried building. Complainant was looking for a suitable flat and he came into contact with the OP. Accordingly, Complainant and OP entered into an agreement for purchase of a flat bearing No.B-6, Top Floor, measuring more or less 800 sq.ft. at premises No.12/3, Sarkar Hat Lane, P.S.-Sarsuna, Kolkata-61 with proportionate undivided share along with common facilities at a consideration of Rs.12,00,000/-.

            Complainant paid Rs.6,00,000/- by several cheques bearing cheque No.299125 and 29929 drawn on UBI, Sarsuna Branch. OP No.1 delivered the possession of the said flat to the Complainant and complainant is residing in that. Complainant is ready and willing to complete the transaction in respect of the flat. Complainant issued a notice to OP No.1 on28.8.2015 for delivering the documents and sanctioned plan for drafting the deed of conveyance. Complainant made several requests to the OP, but avoided the registration to the sale deed. So, Complainant filed this case.

            OP No.1 filed written version and denied the allegation of the complaint. He has denied that he delivered the peaceful possession to the Complainant upon the receipt of Rs.5,00,000/- vide cheque No.209125 drawn on UBI, Sarsuna Branch without receiving the entire consideration money. Further, OP No.1 has stated that though Complainant issued cheques, but he affixed his signature in such a place of the cheque that money could not be realized. Complainant with a mala fide intention affixed the signature. Further, OP has denied the allegation and prayed for dismissal of the complaint.

Decision with reasons

            Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. On the contrary, OP has filed questionnaire to the affidavit-in-chief of the Complainant. Complainant had filed answers to the questionnaire put by OP.

            Similarly, OP filed affidavit-in-chief wherein he has stated that he delivered the peaceful vacant possession of the said property to the Complainant upon receipt of Rs.5,00,000/- vide cheque No.209125 with receiving the entire consideration amount. Complainant was supposed to pay Rs.2,00,000/- in May/June, 2015 and balance amount in several instalments. But, deliberately did not pay the amount. Further, OP has stated that he was surprised to receive the notice of the Advocate. Against this affidavit-in-chief, Complainant put certain questions to which OP has filed reply.

            Main point for determination as to whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the complaint, it appears that Complainant has prayed for a direction upon the OP to execute and register the deed of conveyance in favour of the Complainant in respect of the flat mentioned in the schedule. On perusal of the written argument, it appears that OP has agreed that he entered into an agreement on 23.2.2015 for selling a flat at a consideration of Rs.12,00,000/- out of which Complainant paid Rs.5,00,000/-. Further, OP has stated that Complainant agreed to pay Rs.2,00,000/- within three months and rest of the amount by installments. Complainant also paid Rs.1,00,000/-. Complainant did not pay the rest amount. The possession was delivered on good faith.

            Now, coming on to the agreement which is on a Rs.10/- non judicial stamp and in Annexure A it appears that both the parties have signed on it which reveals the fact mentioned in the complaint petition. This agreement is dated 23.2.2015. OP has referred a decision reported in 2016(1) CPR 206 NC wherein it is stated that the Hon’ble National Commission remanded back the matter to the HUDA. Further, OP has referred to a decision of 2016(1) CPR 208 NC wherein the matter related to debit card and so it is not applicable in the present case. They also referred to a decision reported in 2016(1) CPR 668 NC wherein it is laid down    that in a case of specific performance of contract; the Complainant cannot be treated as Consumer. Ld. Advocate submitted that this is a case which is covered by specific performance of contract and this Forum does not have jurisdiction.

Further, OP has referred a decision reported in 2016(2) CPR 555 NC wherein it is clearly laid down that agreement arrived between the parties having elements of specific performance cannot be covered under Consumer Protection Act and Forum does not have jurisdiction. In the present case also the adjudication is specific performance of the agreement entered into between the parties.

             On the contrary, Complainant has filed written argument wherein he has stated the facts which he made out in the complaint.

             So, we are of the view that this complaint is not covered under the provisions of Consumer Protection Act and it has to be governed by a specific relief act. So, we cannot award any relief to the Complainant.

Hence,

ordered

               CC/203/2016 is dismissed on contest.