Date of filing :23.2.2018
Judgment : Dt.6.12.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Raju Das alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Sri Suprakash Banerjee.
Facts in brief, are that the Complainant entered into an Agreement for Sale with the OP on 9.4.2015 in respect of a shop room measuring about 110 sq.ft. super built up area on the ground floor of a building lying and situated a 37, Shibapriya Chatterjee Road, Kolkata -700 061 at a consideration ofRs.4,50,000/-.
The Complainant has stated that the OP being the absolute owner of the said premises by virtue of a Deed of Gift executed on 15.2.2010 in favour of the OP by his mother namely Smt. Padma Banerjee who earlier obtained ownership of that property on the strength of a Deed of Conveyance dt.3.6.1979, decided to develop the said property by constructing a G+3 storied building thereon and agreed to sale a shop room to the Complainant at an agreed consideration of Rs.4,50,000/- and out of which an amount of Rs.50,000/- by cash and Rs.3,50,000/- by three cheques being cheque Nos.s000001 dt.20.5.2015, 000002 dt.20.6.2015, 000004 dt.20.7.2015 drawn on HDFC Bank, had been paid by the Complainant towards consideration amount but even after receiving the amount of Rs.4,00,000/- out of Rs.4,50,000/- the OP) failed and neglected to hand over possession of the shop room and execute and register the Deed of Conveyance in favour of the Complainant, which was to deliver within 130 days from the date of execution of the agreement.
The Complainant has further stated that he personally requested the OP to hand over possession and to execute and register the Deed of Conveyance and sent a legal notice on 6.11.2016 and lastly on 19.1.2018 sent a letter along with Draft copy of the Deed of Conveyance through Ld. Advocate, which was duly received by OP on 23.1.2018, but, the OP paid no heed to that letter and finding no other alternative the Complainant by filing the instant Consumer Complaint prayed for direction upon the OP to handover possession of the shop room, to execute and register the Deed of Conveyance in favour of the Complainant, to pay compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.
The Complainant annexed copy of Agreement for Sale dt.9.4.2015, Bank Statement, Advocate’s letter dt.6.11.2016 and 19.1.2018.
The OP contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that an Agreement was executed on 9.4.2015 in respect of a shop room measuring about 110 sq.ft. situated on the Ground Floor of a building at premises No.37, Shiba Priya Chatterjee Road, Kolkata – 700 061 and received an amount of Rs.4,00,000/- out of total consideration amount of Rs.4,50,000/-. The OP has further stated that the Complainant intended to fix an iron shutter in the said shop room which was not sanctioned under the building plan. It is also stated by the OP that the Complainant also intended to install an air conditioner in the portions of the building which owned by the OP but denied by the OP. It is stated by the OP that the Complainant has failed to pay balance consideration amount as per said agreement for sale dt.9.4.2015 and thus the Agreement for Sale has been treated as cancelled and the Complainant is entitled to get back 90% of deposited amount but instead of receiving said amount the Complainant with the help of some other persons started threatening the OP and the matter had been reported to the Hon’ble Chief Minister, Govt. of West Bengal, the Hon’ble Home Minister, the Police Commissioner, the Officer-in-charge of Sarsuna P.S., Human Rights commission. The OP has prayed for dismissal of the case.
The Complainant and the OP adduced affidavit-in-chief followed by cross examination in the form of questionnaire and reply thereto.
Both the parties filed Brief Notes of Argument. In course of argument, Ld. Advocate for the Complainant stated that the OP was to handover possession of the said shop room within 130 days which hampered his livelihood.
Ld. Advocate for the OP stated that the Complainant failed to pay balance consideration amount within stipulated period and, therefore, the OP is not liable to deliver possession of the said shop room. It is further submitted by the OP that the instant dispute may be redressed under the specific performance of contract.
The OP relied upon the decision of Hon’ble NCDRC reported in –
1) 2016(1) CPR 668(N.C.) [Anand Kumar Dwivedi VS M/s Jha Associates (Regd.) & Ors].
2) 2017(2) CPR 566 (N.C.) [Manjit Gupta VS Oberoi Realty Ltd.]
3) 2016(2) CPR 555(N.C.) [Pankaj Jaiswal VS Deenbandhu Sonkar & Ors]
Points for determination
- Whether the Complaint is maintainable before this Forum
- Whether there is deficiency in providing service on the part of the OP
- Whether the Complainant is entitled to the relief as prayed for
Decision with reasons
Point No.1
Admittedly, both sides entered into an Agreement for Sale on 9.4.2015 in respect of a shop room measuring about 110 sq.ft. situated at 37, Shibapriya Chatterjee Road, Kolkata-700 061 at an agreed consideration amount of Rs.4,50,000/-.
On perusal of the copy of the said Agreement it appears that the Complainant, a service holder, opted for purchasing the said shop room.
On perusal of petition of complaint it appears that the Complainant by swearing affidavit stated his occupation ‘service’ and no averment is found wherefrom it would be evident that the Complainant, for earning livelihood entered into such agreement for purchasing the shop room in question.
On further perusal of the Agreement for Sale dated 19.04.2015 it appears that Clause No.8 in page No.4 of the said agreement runs as “That the purchaser shall use his shop room only for commercial purpose.”
However, as per provision of 2 Section 2(1)(d) of the C.P.ACT, 1986 -
"consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
In the instant case, the Complaint being a service holder has failed to prove that he intended to purchase the shop room for earning livelihood and, therefore, it is evident that intention of Complainant is to earn profit by using the shop room in question which as per provision of Section 2(1)(d) of the C. P. Act, 1986 falls within domain of commercial purpose and, therefore, the complaint is not maintainable before this Forum.
Point No.1 is decided accordingly.
Point Nos.2& 3
Since point No1 is decided negative there is no scope to discuss point Nos.2 & 3.
In the result, the Consumer Complainant does not succeed.
Hence ordered
That CC/84/2018 and the same is dismissed being not maintainable.
