Order-8.
Date-07/07/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that the OPs are developers of land comprising of different Dag Numbers under different Khatians lying and situated at Mauza Bulakhali, J.L. No.134, within P.S. Bishnupur, Dist – 24 Pgs. (S). OPs developed land and made a scheme plan consisting of several plots of land under the name and style of project Madhuban and invited applications from the intending purchasers for booking of flats of the aforesaid project. The complainant booked a plot of land with the OPs and subsequently on 27-09-2010 OPs entered into an agreement for allotment with the complainant in respect of a plot of land being plot no. C46 of the scheme plan of Madhuban measuring about 3 Cottahs more or less of Mouza Balakhali, J.L. No.134 appertaining to Khatian No.55, 718, Dag No.751, within P.S. Bishnupur, Dist 24 Pgs(S) at a rate of 1,15,000/- per cottah totalling sum of Rs.3,45,000/- towards full consideration of the land on different dates as per receipts issued and acknowledged by the OPs. The complainant, thereafter, on several occasions requested the OPs for delivery of possession of plot of land as per agreement but OPs failed and neglected to deliver the possession of the plot of land in favour of the complainant. Thereafter, OPs requested the complainant to take back the consideration money of Rs.3,45,000/- with Bank interest and asked the complainant vide letter dated 13-02-2015 to submit original agreement dated 27-09-2010 in between the developers and the complainant and also money receipts for total sum of Rs.3,45,000/-. The complainant deposited all the original documents for refund of the consideration amount along with letter dated 13-02-2015 with the OPs. The OPs received and acknowledged the same by endorsing its seal and signature, thereafter, OPs on 20-02-2015 under letter reference No.UPPL/SA/02/15/328 informed the husband of the complainant Mr. Manjul Kr. Dutta that the refund is not possible and thereafter remained silent in the matter of refund. It is alleged that OPs are avoiding and neglecting to refund the amount of the complainant. The complainant on 02-04-2015 wrote a letter about refund of money but to no good. The complainant has alleged deficiency in service, harassment against the OPs. The complainant has prayed for a direction upon the OPs for refund of a sum of Rs.3,45,000/- along with interest and other reliefs in terms of prayer of the complaint.
OPs have not contested the case in spite of receipt of summons and the case has proceed ex parte against the OPs.
Point for Decision
- Whether the case is maintainable in its present form and prayer?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of agreement of Allotment dated 27-09-2010, Xerox copy of letter dated 13-02-2015 addressed to the OP, Xerox copy of letter datd 02-04-2015 addressed to the OPs, Xerox copy of letter dated 20-02-2015 addressed to the complainant by the OP regarding the refund of deposited money and other documents on record.
The question that haunts us is whether the case is maintainable in C.P. Act? We find that the impugned agreement is for development of land in the project Madhuban, Bishnupur, Dist 24 Pgs.(S). It is alleged that the OPs developed land and made a scheme plan for consisting of several plots of land under the name and style of the project as Madhuban. Complainant also booked a plot of land with the OPs in respect of land being Plot No.C46 of the Scheme Plan of Madhuban, measuring about 3 kathas more or less of Mauza Bulakhali, J.L. No.134, Khatian 55, 718, Dag No.751 within P.S. Bishnupur, Dist – 24 Parganas (S) at a total price of Rs.3,45,000/-. We are afraid we find that the project is not for the construction of house, and/or housing/building.
‘Service’ in C.P. Act is defined u/s.2(2)(o) as follows .
‘Service’ means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
‘Goods’ is not defined in C.P. Act but it is defined under the Sale of Goods Act, 1930 .
‘Goods’ is defined as per Section 2(7) of the ‘Act’ as “Every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”.
Proposed sale of land or agreement for sale of land does not come within the purview of the ‘service’ as per C.P. Act or under ‘Goods’ as defined is Sale of Goods Act, 1930. We think that the dispute as ventilated is not a consumer dispute and does not come under the purview of C.P. Act. The relief as prayed for by the complainant is not also within the jurisdiction of Consumer Fora as such. We think that the case is not maintainable in its present form and prayer and under C.P. Act.
As per Section 2(1)(d) of C.P. Act ‘Consumer’ means any person who buys any goods for a consideration which has been paid or promised or partly paid or partly promised etc. etc. Land as we know does not come within the definition of goods. So, we cannot say that the complainant is a consumer as per the definition of C.P. Act. We think that the case is not maintainable in its present form and prayer under C.P. act.
We refrain from taking up the other issues as the case is not maintainable in C.P. Act.
Consequently, the case fails being not maintainable.
Hence,
Ordered
That the instant case be and the same is dismissed on contest being not maintainable in C.p. Act.
No order as to cost.
The complainant, however, reserves the right to approach the appropriate Civil Court to seek remedy, if so advised. The complainant may take advantage of the ruling of Hon’ble Supreme Court in the case of Laxmi Engineering Works vs. P.S.J. Industrial Institute [11 (1995) CPJ 1 SC].
