27.03.2015.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 20.01.2014 passed by Ld. District Forum, South 24 Parganas in complaint case being No. 195 of 2012 allowing the same in part on contest with cost of Rs.10,000/-, directing the O.P. to execute and register the Deed of Conveyance in respect of the property in question and to deliver possession within one month from the date of the order, failing which, the Complainant would be at liberty to put the decree into execution in accordance with law, further directing the O.P. to pay the cost within the said period failing which the said amount would carry interest @ 10% p.a. from the date of default till realization.

Being aggrieved by the order the O.P. – Developer has preferred the instant appeal on the grounds, inter alia, that although the Ld. District Forum observed that the Complainant expressed her willingness to resell the property in question yet the Ld. District Forum instead of holding the purchase of the property in question for commercial purpose held the Complainant a consumer and allowed the case in favour of the Complainant.

The case of the Complainant before the Ld. District forum, in brief, is that being attracted by an advertisement she booked a plot of land having No. 4126 at Rainbow Park Housing Estate for building a dwelling house for her own and paid Rs.5001/- to the O.P. on 20.02.1993 towards booking fee.  A provisional letter of allotment dated 20.02.1993 was issued to the Complainant allotting her the said plot of land having an area of 4 cottahs, 14 chittack and 10 sq. ft. fixing the consideration amount at about Rs.1,36,880/- which was payable by 11 instalments.  Accordingly, the Complainant paid the entire amount of consideration and the last instalment was paid on 13.05.1995.  However, in violation of the terms as printed in the brochure the O.P. further demanded Rs.24,938/- vide letter dated 18.06.2003 towards development charges but the Complainant paid Rs.24,900/- to the O.P. on 19.07.2003 to avoid delay in registration process.  But, in spite of receiving the amount the O.P. did not take any step to register the deed in respect of the property in question.  The Complainant requested the O.P. for registration of the Deed on serval occasions, but to no avail.  However, the O.P. in a belated reply by a letter dated 16.03.2012 asked the Complainant to register the plot in favour of her within seven days failing which the booking of the plot would be cancelled.  Receiving the said letter the Complainant fell ill.  Subsequently, the Complainant served a legal notice dated 22.03.2012 upon the O.P. requesting the O.P. to obtain a report from the registration office regarding exact cost for registration and transmit the same to the Complainant enabling to remit the exact amount for registration.  The Complainant served registered letters dated 26.04.2012 and 06.06.2012 upon the O.P. as reminders.  However, the O.P. served an Advocate’s letter dated 20.06.2012 and refused to execute and register deed in favour of the Complainant and expressed its desire to enter into a separate agreement with a third party in respect of the said plot.  Hence, the Complainant has filed the instant case praying for direction upon the O.P. to inform the Complainant about the registration cost and after receiving the amount execute and register the Deed of Conveyance of Plot No. 4126 in her favour, to give possession of the plot No. 4126 at Rainbow park Housing Estate to the Complainant, to pay for excess stamp duty for delay in registration by the O.P., to pay compensation of Rs.12,00,000/- for mental agony, harassment and to pay cost of Rs.20,000/-.

The O.P. appeared and contested the case by filing W. V. denying and disputing all material allegations stating, inter alia, that the O.P. repeatedly requested the Complainant to receive the possession of the plot of land so that, she might get the said plot registered in her favour but the Complainant did not respond and, further, the case is barred by limitation.

In course of hearing of the appeal Ld. Advocate for the Appellant has submitted that in the impugned order it was observed by the Ld. District Forum that the Complainant intended to resell the property in question and, as such, cannot be considered as a consumer in respect of the said property.  Ld. Advocate for the Appellant has further submitted that the Appellant had been willing to register the Sale Deed all along and requested the Respondent to that effect on several occasions and lastly, by a letter dated 16.03.2012 but the Respondent did not pay heed to that and, as such, the allegations for non-delivery of the possession of the land and non-registration of the sale deed has not been substantiated.  In support of such contention Ld. Advocate for the Appellant relied on the decision reported in 2012 (3) CPR 104 (NC) Chilukuri Adarsh – vs. – M/s. Ess Ess Vee Constructions Rep. by its Managing Partner.

Ld. Advocate for the Respondent has submitted that payment was duly made in 2003 and the O.P. asked the Complainant to receive the possession by a letter dated 16.03.2012 which is a glaring example of deficiency in service. 

Having heard submissions made by the parties and on perusal of the materials on record it appears that a plot of land developed by the Appellant was allotted to the Respondent against consideration.  The entire amount of consideration was paid by the Complainant  but neither the possession of the said plot has been handed over to the Respondent nor the execution and registration of the Sale Deed had been done.  In her petition of complaint the Complainant – Respondent has stated that by a letter dated 16.03.2012 the O.P. – Appellant asked her to take steps for registration of the said property within seven days but, as it appears from the record that no follow-up course of action has been taken by either of the parties.

Further, it also appears that the Appellant has raised the question that whether the Respondent – Complainant is a consumer under the Appellant – O.P. as per provision of the C. P. Act since she asked the Appellant to register the deed of conveyance in favour of her as she intended to resell the property in question and reselling of the goods and services is considered to be within the purview of commercial purpose for which the Complainant ceased to be considered as a ‘consumer’ under the O.P.

On perusal of the record it further appears that the Respondent – Complainant wrote a letter dated 17.04.2010 asking the Appellant to register the deed of conveyance in favour of her in respect of the property in question since she intended to resell the said plot. 

Under the facts and circumstances, we are inclined to hold that the Complainant is not a consumer under the O.P. 

In the result, the appeal succeeds.

Hence, ORDERED, that the appeal is allowed on contest without cost.  The impugned judgment is set aside.  The petition of complaint is dismissed.