Sri Partha Kumar Basu, Member
This complaint petition is filed u/s 12 of the Consumer Protection Act’ 1986 at the instance of the Complainant against the Opposite parties for alleged deficiency of services on the part of the Opposite parties in a consumer dispute of land sale matter by plotting and development.
The present complaint case is at the behest of the complainant Mr Kapil Gupta alias Kappil Gupta of 23/5 Gariahat Road, PS: Rabindra Sarovar, Kolkata 700029 wherein the complaint petition as averred states that with an intention to purchase plot of land from the OP Company (OP1) namely Suchana Developers Pvt. Ltd. with Registered office at Nu – Mans, Pailan, PS Bishnupur, Kolkata 700104 represented by it’s Directors namely Mr Pradip Das (OP2) and Mr Rajib Gazi (OP3) and Mr. Ankan Ray Saphai (OP4) The complainant applied for purchase of a plot as per application dated 24.09.2013 and received an allotment letter dated 24.09.2013 in his favour for a total amount of Rs. 11,20,000/- (Rs. Eleven Lac Twenty Thousand) only by entering into a sales agreement notarized on 12.03.2015. The sale agreement was executed for a piece and parcel of plot no A10 and A12 admeasuring about 8 kotha (5760 S.Ft) at Ashirbad project of the OP1 company at Bhanderia, Kestekumari gram panchayat under mouza Gabberia, PS : Bishnupur, South 24 parganas, West Bengal. The total consideration money for the said plot being Rs. 11,20,000/- (Rs. Eleven Lac Twenty Thousand) only and in accordance with the said agreement the complainants paid Rs. 6,06,662/-(Rs. Six Lac Six Thousand Six Hundred & Sixty Two) only out of the consideration amount on diverse dates when the OP company was under obligation to complete the project within 18 months of the date of sale agreement. However the non-fulfillment of the promise by the OP1 company led the complainant to lodge this complainant with prayer for reliefs viz. (1) To refund Rs 6,06,62/- alongwith interest @ 18% as per Cl (3) of the sale agreement, Rs 1,00,000/- as compensation for harassment and mental agony caused by OPs and Litigation cost.
It is evident from Postal track reports that the S/R in respect of the OPs could be duly completed. But the OPs never appeared or contested the case and hence the same was heard ex-parte when the Ld. Advocate of the complainant filed BNA and advanced their arguments on 25.04.2023.
On perusal of the case record along with the copies of documents, it appears that the complainant intended to purchase the plot as narrated in complaint petition for a consideration amount of Rs.11,20,000/- (Rs. Eleven Lac Twenty Thousand) only for which an agreement for sale notarized on 12.09.2016 has been executed by and between the parties and payment of Rs 6,06,662/- (Rs. Six Lac Six Thousand Six Hundred & Sixty Two) only has been made paid by cheques by the complainant to the OPs. who acknowledged the same by issuing money receipts on various dates. Therefore, the complainant is a consumer as defined under the Consumer Protection Act, 1986.
The complainant booked the plot of land for purchase and entered into an agreement on 12.09.2016 with the OPs.to that effect and the complainant paid Rs 6,06,662/- (Rs. Six Lac Six Thousand Six Hundred & Sixty Two) only out of total consideration amount of Rs.11,20,000/- (Rs. Eleven Lac Twenty Thousand) only. But even after expiry of stipulated time limit for delivery of possession, the plot of land was never handed over by the OPs. Follow ups were made but despite that the OPs. neither delivered possession of the said plot nor refunded the advanced amount. The complainant sent letter dated 19.03.2021 but OPs. did not return back the amount with bank interest which they received from the complainant. The complainant deposed that all the original documents viz. Allotment letter, Sale Agreement, Money receipts, no dues certificate from bank etc. were surrendered to the OP company representatives. The documents filed by the complainant have not been challenged by the other side for which they may be presumed as of unfettered evidentiary value.
Due considerations were given to the submissions made by the Ld. Advocate of the Complainant. After thorough scrutiny of the records, documents and exhibits in details, it appears from the copy of the sale agreement (Annexure serial running page 10 to 17) that it is undated and notarized on 12.03.2015. There is no mention of any schedule or any property details under any ‘schedule’ except some mention on the body of the said undated sale agreement. The sale agreement runs from page 1 to page 7 but the page 3 is missing though page mark running serial matches. Hence the vital ingredient in the exhibited sales agreement is absent, intentionally or unintentionally. From the statements, covenants and recital in the said undated sale agreement there is no utterance that the OPs are acting as a builder or a promoter.
From the sales agreement, it may appear at some places that the OP company would oblige to arrange the necessary electricity line, water line, drainage/sewerage connection etc in the said project/scheme and the said expenses are to be borne proportionately by the intending purchaser / allottee but on going through the contents of the complaint petition coupled with the recitals of agreement for sale dated 24.09.2013, it would appear that there is no iota of statement that the OP 1 Company was working as builders rather there is no such covenant present in the sale agreement which lends support to the same. Moreover on the contrary, point no (1) (2) (4) and (5) of the terms and conditions (running page 9) of the application form dated 24.09.2013 provides that :-
- Plots will be allotted on the basis of application reference number
- Preference in choice plots subject to availability
- Development of individual plots will be made only after respective registration
- Registration of the plots will be made on receiving full payments and on expiry of the tenure of the Scheme applied for
In absence of any contra indication in sale agreement and in absence of any allotment letter as exhibit, the above clauses in terms and conditions are the sole document with evidentiary value that makes it quite clear that the OP 1 Company has only sold away the plot and did not participate in the matter of construction or super structures etc. It needs to be borne in mind that the sale of plot simpliciter is different from the plot sold by the builders or the promoters. We have also gone through the paragraphs of the sales agreement but find no advertisement in print media or otherwise or brochure or document that the complainant claimed having exhibited in support as an evidentiary value. From the entire factum of the case in hand, it is established to be a case of simply sale of plot of land by some persons on payment of a consideration money as the very nature of the all the transactions show that it was a sale simpliciter and so this complainant can not be covered under Consumer Protection Act 1986 or 2019.
The Hon'ble Supreme Court reported in "Ganeshlal S/o Motilal Sahu vs. Shyam " in Civil Appeal No. 331 of 2007 decided on 26.09.2013 and was pleased to hold:-
"6. 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 with effect from 18th June, 1993. That being the position, as far as the housing construction 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 is concerned, and if there is any complaint, the same would not be covered under the said Act."
Consequently, there is no merit complaint case and therefore, the same is dismissed. However there shall be no order as to cost.
Hence, it is
ORDERED
That the complaint case is dismissed being not maintainable before this commission.
However, liberty is given to the complainant to approach the appropriate forum for redressal of his grievances.
Let a copy of the order be sent / supplied free of cost to the parties concerned.
The Final Order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
(Partha Kumar Basu)
Member
