Dt. of filing – 17/01/2018
Dt. of Judgement – 08/02/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Ranjan Das under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sri Subrata Bandyopadhyay 2) Smt Sipra Pal 3) Smt Shila Pal and 4) Sri Dilip Paul alleging deficiency in rendering services on their part.
Case of the Complainant in brief is that Opposite Party No.1 being the developer and Opposite Party Nos.2 to 4 being the joint owners of the property described in the schedule ‘A’ of the complaint petition, entered into a development agreement dated 31/3/2015 in order to construct G+4 multi-storied building. Complainant was a tenant in respect of the two rooms in the said “A” schedule property and has been running his business on payment of rent. The agreement was entered into by Opposite Party No.1 and Opposite Party Nos. 2 to 4 with the Complainant on 7/8/2015 to give assistance for raising multi-storied building and to handover the possession of two rooms in which he was running his business. The Complainant handed over the possession of the tenanted rooms. In the agreement dated 7/8/2015 Opposite Parties had agreed to execute ownership deed in favour of the Complainant in the newly constructed building but the Complainant has only been handed over the possession of the two rooms. But no Deed of Conveyance has been executed. Repeated request was made by the Complainant to register the Deed of Conveyance but of no use. A notice was also sent to the Opposite Parties dated 18/9/2017 but all in vein. Thus the present complaint has been filed by the Complainant praying for directing Opposite Parties to register the ownership deed in favour of the Complainant in respect of the schedule “C” property, to pay compensation of Rs.1,00,000/- for harassment and to pay Rs.20,000/- as litigation cost.
Complainant has annexed with the complaint petition receipt showing payment of rent by him, municipal tax receipt, electricity bill, development agreement, general power of attorney dated 31/3/2015 and copy of agreement dated 7/8/2015. Complainant has also annexed copy of notice sent by him.
On perusal of record it appears that Opposite Party No.4 contested the case by filing written version denying the material allegation made in the complaint petition stating inter alia that in the agreement there is no mention of consideration amount. However, on several occasion Opposite Party No.4 requested the Complainant to handover the draft deed for approval. But the Complainant failed to handover such draft deed. So the Opposite Party No.4 has prayed for dismissal of the complaint case.
Other Opposite Parties inspite of the service of notice did not take any step and thus the case proceeded ex-parte against them.
During the course of evidence parties adduced their evidence by filing affidavit-in-chief followed by questionnaire and reply thereto. Argument has been advanced by both the parties.
So the following points require determination:
- Whether the Complainant is a consumer under the provision of Consumer Protection Act, 1986?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No. 1 & 2
Both these points are taken-up together for a comprehensive discussion.
At the very outset it may be pertinent to point out that it is an admitted fact that the present Complainant was a tenant in respect of the two rooms and was running his business as a tenant under Opposite Party Nos.2 to 4 being the owners. It is also admitted fact that a development agreement has been executed between Opposite Party No.1 developer and Opposite Party Nos.2 to 4 being the owners for raising multi-storied building. The execution of agreement with the Complainant on 7/8/2015 is also not in dispute. The possession of two rooms as described in the schedule “C” of the complaint petition, has already been handed over to the Complainant is evident from the petition of complaint. So only point requires to be considered is whether the agreement dated 7/8/2015 executed with the Complainant was an agreement for sale in favour of the Complainant, in respect of the schedule ‘C’ property and whether any consideration was passed?
The relevant recital in the said agreement dated 7/8/2015 reads as follows:
“That the First Part/Owners also declare that the allocation of the Second Part from their allocation on Ownership without any monetary transaction and the Developer shall have no claim either money or any kind against the Second Part in respect of Second Part allocation”. It may be mentioned here that the Second Part in the agreement is the Complainant. So the above mentioned recital is very clear that no consideration amount was fixed and transaction between parties was devoid of any monetary transaction. So no consideration was paid or promised to be paid. If that be so then the question arises whether at all the Complainant is a consumer.
“Consumer” is defined under section 2(1)(d) of the Consumer Protection Act, 1986 and it specifies that the “Consumer” means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised and also hires or avails any services for consideration which has been paid or promised or partly paid or partly promised. So the definition of the consumer is very categorical that the elements of payment of consideration is necessary to be a “consumer” under the definition of section 2(1)(d). Availing or hiring of any service without consideration will not fall under the Consumer Protection Act. As it is apparent in the agreement that no consideration is paid, Complainant in this case is not a “consumer”.
Ld. Advocate for the Complainant has argued that there is a reflection in the agreement about registration of ownership deed in favour of the Second Part i.e. the Complainant and so the deed of gift may be directed to execute if not the deed of sale. It appears from the record that the Complainant has also filed a petition for amendment on 18/9/2018 praying to insert “necessary deed” in place of “Deed of Conveyance” in the complaint petition. But the argument of Ld. Advocate for the Complainant cannot be accepted, as a gift is made out of love and affection. Same cannot be directed to be made by way of an order. Moreover again gift is always without consideration. Admittedly in terms of the agreement the possession of the two rooms as agreed has already been handed over to the Complainant. So in view of the discussions as highlighted above, as there is no deficiency of service, also as Complainant being not a consumer, he is not entitled to the relief as prayed for.
These points are answered accordingly.
Hence,
Ordered
CC/27/2018 is dismissed on contest against Opposite Party No.4 and ex-parte against Opposite Party Nos.1 to 3.
