Hon’ble President : Shri B. D. Nanda,
M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : A.K. Pathak.
Petitioner Sri Sanjay Ghosh.
O.Ps. Sri Sunit Kumar Ghosh & another.
Order No. 1 Date : 30.12.2015.
Read the petition lodged under Section 12 of the C.P. Act, 1986.
Register the case as CC/479/2015. Complainant filed a complaint with two bank drafts amounting to Rs. 200/- + Rs. 300/- bearing nos. 931069 & 931353 dated 23.12.2015 & 29.12.2015 of State Bank of India, Howrah Maidan Branch.
Fix today i.e., 30.12.2015 for admission hearing.
The instant case was filed U/S 12 of the C.P. Act, 1986 by the petitioner, Sanjay Ghosh, praying for a direction upon the o.ps., namely, Sunit Kumar Ghosh & Smt. Snigdha Ghosh, to execute and register the deed of conveyance in favour of the petitioner in respect of the suit property measuring 1 cottah 8 chattak together with three storied pucca building consisting of 2 pucca room in the ground floor and on pucca kitchen room, bath and privy at the first floor and one pucca room on the 2nd floor vide holding no. 48, Mahendra Bagchi Road, P.S. Bally, District Howrah. The petitioner entered into a sale agreement with the o.ps. on 28.5.2012 and paid Rs. 3,10,000/- out of total consideration amount of Rs. 10,00,000/-. Further on 19.04.2013 complainant paid Rs. 1,00,000/- and the o.ps. assured that they would execute and register the sale deed within three months. Subsequently on 05.09.2013 opposite parties received Rs. 1,00,000/- and delivered possession measuring 200 sq. ft. consisting of one room on the 2nd floor. After lapse of many days o.ps. did not take any positive step to execute and register the property in question. Again on 18.8.2014 the o.ps. took possession by breaking the pad lock of the said room and on protest complainant went to the local P.S. and the police concerned advised him to go to the court. The complainant paid Rs. 5,10,000/- out of total consideration amount of Rs. 10,00,000/-. The petitioner was ready and willing to get the deed of sale in his favour by paying the balance money but the o.ps. neglected to do the same and so he filed the case.
On scrutiny of the case record specially the documents being agreement for sale it is noticed from the schedule of the property that there was an agreement for purchase of 1 cottah 8 chattak together with three storied pucca building consisting of 2 pucca room in the ground floor and on pucca kitchen room, bath and privy at the first floor and one pucca room on the 2nd floor at holding no. 48, Mahendra Bagchi Road, P.S. Bally, District Howrah. for which the petitioner paid a consideration money of Rs. 5,10,000/- out of the total consideration of Rs. 10,00,000/-. Here is no case that the o.p. is a builder or a promoter and selling plots after developing the same. It is simply sale of a plot of land by some persons to this petitioner on payment of a consideration money and thus the very nature of the transaction shows that it was a sale simpliciter and so this cannot be covered under the Consumer Protection Act, 1986.
Our National Commission in a recent judgment 2015 (2) CPR page 195 opined that sale of a plot simpliciter is different from plot sold by builders or promoters. National Commission in para 8 of the said judgment opined that there was no evidence that the petitioner in their case were working as builders. They are seller simpliciters. It must be born in mind that the sale of a plot simpliciter is different from the plot sold by the builders or promoter. Our Apex Court also in the case of Ganeshlal, son of Motilal Sahu vs. Shyam in Civil Appeal No. 331 of 2007 held “It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ‘deficiency’ as quoted above. We may, however, note that when it comes to “housing construction”, the same has been specifically covered under the definition of ‘service’ by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing constructed by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter, the same would not be covered under the said Act.”
In view of above decision of the Apex Court as well as our National Commission and the facts of the present case being a simpliciter sale of a plot of land not by any promoter or developer also cannot come within the purview of this Forum and the petitioner is to approach the appropriate Forum for redressal of his grievances and regarding the point of limitation is concerned, the petitioner can seek the help from the Apex Court Judgment in Laxmi Engineering Works vs. PSG Industrial Institute 1995 (3) Supreme Court Cases page 583.
In view of above discussion and findings this Forum finds that this case does not come under the purview of C. P. Act, 1986 and thus the claim petition filed by the petitioner here is not allowed to be admitted.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 479 of 2015 ( HDF 479 of 2015 ) be and the same is not maintainable before this Forum and hence rejected.
Supply the copies of the order to the petitioner, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
