DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _460_ OF ___2015_
DATE OF FILING : 15.10.2015 DATE OF PASSING JUDGEMENT: 03/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarkar
COMPLAINANT : Sri Prasanta Das,s/o late Prafulla Das of 260, Vidyasagar Sarani, Khirishtala, P.O & P.S Sonarpur, Kolkata – 150.
-VERSUS -
O.P/O.Ps : Sri Somnath Mondal alias Ramendra Nath Mondal ,s/o late Bhabasindhu Mondal of Acharya Prafulla Nagar, P.O & P.S Sonarpur, Kolkata – 150.
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J U D G E M E N T
Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that the O.P is the absolute owner in respect of the land measuring more or less 2 cattah 10 chittak 34 sq.ft along with three storied building excluding shop rooms situated on the ground floor of the said building which are described in the schedule of the complaint. Thereafter complainant came to know that O.P wanted to sell the said property at a consideration of Rs.11,50,000/- . Accordingly complainant was agreed to purchase the said schedule property at a price of Rs.11,50,000/- in the month of December, 2013 and paid advance of Rs. 5 lacs ,for which, O.P entered into an agreement for sale on 21st December, 2013. Photocopy of the same is enclosed herewith as annexure A. It has further stated that according to the terms and conditions of the said agreement O.Ps shall execute and register the deed of conveyance in respect of the schedule property in favour of the complainant within 24 months from the date of agreement. But the O.Ps are taking time with the false pretext and complainant compels to serve lawyer’s notice demanding execution of the sale deed .But the said letter was returned with the remark “Not claimed” which are enclosed herewith. Thereafter complainant filed this case with a prayer to direct the O.Ps to execute and register the deed of sale , hand over vacant possession of the property, compensation and cost etc.
The O.P contested the case by filing written version and submitted that the case is not maintainable both in law and facts. It has further submitted that complainant is not a consumer as per provision of C.P Act (as amended). It is the positive case of the O.P that he never entered into any agreement for sale with the complainant and submits that O.P wanted to construct a multistoried building after demolishing the old building. Therefore, complainant came to the O.P introducing himself as a developer cum builder and proprietor of M/s Balaji Construction which was carrying on construction on a plot of land and after having discussion and physical measurement of the land, complainant agreed to develop the aforesaid land of the O.Ps after demolishing the very old structure standing threon.But no development agreement was entered into between the developer and the complainant herein. It has further stated that the O.P is a social worker in the area of Gosaba and Sundarban and he was urgent need of money , for which complainant assist him by paying Rs. 5 lacs as accommodation loan and the O.P acknowledged the receipt of the said loan in a non-judicial paper by writing thereon as received Rs.5 lacs as loan which was in the custody of the complainant. It has further stated that complainant also kept the five original deed in respect of the property from the O.P in his custody as a security of the said money which is still lying in the custody of the complainant. It has claimed that no photocopy of the said receipt in the stamp paper was given by the complainant to the O.P . It is the further case of the O.P that on several occasions the O.P told the complainant to take back the amount provided as a loan but he refused to accept the same and started threatening the O.P with dire consequences to implead in a false cases. The O.P also alleged general diary before the Sonarpur P.S against the complainant. It has claimed that complainant has manufactured the loan agreement for sale and filed the instant case with the Xerox copy of the same with an ulterior motive to grab the property of the O.P. So, the positive case of the O.P is that the O.P never entered into any agreement for sale with the complainant for selling the property. Hence, there cannot be any liability or direction to execute and register the deed of conveyance in favour of the complainant. The allegation of gross deficiency in service is nothing but written as a standard format for filing this complaint case before the Ld. Court. So, the instant complaint is malafide and should be treated with cost in view of section 26 of the C.P Act, 1986.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
At the very outset it must be stated that annexure A is a photocopy of the stamp paper without any authentication because, who has purchased the same and who is the vendor and which date ,since the same are blank in the stamp paper. This is undoubtedly suspicious circumstances. Apart from that we have gone through the contents of the alleged agreement for sale and we find that if it is accepted in the eye of Law , then also the transaction is a sale simpliciter of an immovable property. So, we find that complainant is not a consumer and Forum cannot be approached , particularly when there is no agreement for housing construction.
Accordingly on perusal of the materials on record we find that the alleged agreement which is the subject matter of the present proceeding is for sale simpliciter of a portion of a property having constructed building. Thus the case of Lucknow Development Authority (Supra) ,followed in case of Bangalore Development Authority (Suprea) holding that in case of a housing construction agreement, purchaser stands as a consumer does not apply. The observation made in paragraph 6 of the case of Lucknow Development Authority (Supra) do not support the view that Forum can be approached for specific performance of contract for sale of a building when contract does not provide any housing construction. The observation made in para 7 of the judgment is in the backdrop of discussion of paragraph 6 thereof. The present dispute do not make a dispute on agreement for sale of a constructed building or a portion thereof. The consumer dispute is not related to sell of goods as defined in Sale of Goods Act ,not to hire for availing any services.
In this circumstances we are of the opinion that present proceedings is not maintainable and therefore the prayer as unfolded in the complaint application does not require any observation by this Bench but liberty is given to the complainant to approach before the appropriate Civil Court having its jurisdiction .
Hence,
Ordered
That the present case is not maintainable and complainant is not a consumer in light of the observation made in above and he is given liberty to approach before the Civil Court for a Specific Performance of Contract ,if it is otherwise not barred in accordance with law.
This judgment is passed in view of judgment passed by the Hon’ble State Commission in SC case no. FA/8 /444 on 27.1.2009.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the present case is not maintainable and complainant is not a consumer in light of the observation made in above and he is given liberty to approach before the Civil Court for a Specific Performance of Contract ,if it is otherwise not barred in accordance with law.
This judgment is passed in view of judgment passed by the Hon’ble State Commission in SC case no. FA/8 /444 on 27.1.2009.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
