State Consumer Disputes Redressal Commission
Sri Manas Kr. Bharati vs Sri Sanjoy Sarkar & Another on 6 October, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/867/2019 ( Date of Filing : 20 Dec 2019 ) (Arisen out of Order Dated 15/11/2019 in Case No. Complaint Case No. CC/299/2019 of District Howrah) 1. Sri Manas Kr. Bharati S/o Lt. Dhirendra Kr. Bharati, 2/A/1C, Satish Chakraborty Lane, Bally, P.O. & P.S.- Bally, Howrah -711 201. ...........Appellant(s) Versus 1. Sri Sanjoy Sarkar & Another S/o Lt. Makhan Lal Sarkar, 73/5/2, Dakshin Baksara 1st Bye Lane, P.S.- Shibpur, Howrah - 711 102. 2. Smt. Snigdha Sarkar W/o Sanjoy Sarkar, 73/5/2, Dakshin Baksara 1st Bye Lane, P.S.- Shibpur, Howrah - 711 102. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: None appears ......for the Appellant None appears ......for the Respondent Dated : 06 Oct 2023 Final Order / Judgement
SAMIKSHA BHATTACHARYA, MEMBER The instant appeal has been directed by the appellant under Section 15 of the CP Act, 1986 challenging the order dated 15.11.2019 in connection with CC/299/2019 passed by the Ld. DCDRC, Howrah.
Ld. DCDRC, Howrah dismissed the complaint being not admitted on the ground that the dispute is not related to any housing construction and the alleged dispute is purely civil in nature.Therefore, no remedy is available regarding such dispute under the CP Act, 1986.
Being highly aggrieved by and dissatisfied with such order, the complainant/appellant has filed the instant appeal.
Facts of the case, in brief, are that the appellant/complainant (hereinafter referred to as 'complainant') has stated in the Memo of Appeal that Respondents No. 1 & 2/OPs No. 1 & 2 (hereinafter referred to as 'OPs No. 1 & 2') wanted to sell a flat measuring about 800 sq. ft. which is situated at Mouja and Police Station Shibpur under Howrah Municipal Corporation in Ward No. 41, Holding No. 73/5/2, Dakshin Baskara 1st bye lane on the ground floor at a consideration of Rs.2,000/- per square feet. On 11.12.2015 one agreement for sale was executed by and between the complainant and the OPs No. 1 & 2 to that effect for a consideration of Rs.16,00,000/-. The complainant already paid Rs.5,00,000/- as part payment through cheque. The OPs assured the complainant to handover the said fact within the stipulated dated from the date of execution of the agreement for sale but unfortunately, the complainant did not pay rest amount of Rs.11,00,000/- within the six months due to medical expenses and inform the seller that within 3 or 4 months, the complainant would arrange the rest amount. When the complainant arranged the balance consideration amount the seller avoided to fix the date for handing over the flat in question. After one year, the OP No. 1 returned him Rs.1,00,000/- and after six months also returned the complainant Rs.1,00,000/- Then the complainant asked the seller the reason of returning the part amount which was paid by the complainant, the seller informed the complainant that since the complainant did not pay the rest amount within six months after the date of Agreement, the complainant's deposited amount would be returned. Though the complainant is interested to purchase the said flat by paying the advance amount, the OP No. 2 did not fix any date for registration of the flat in question. The OPs neither returned the advance amount of Rs.3,00,000/- nor fixed date for registration of the flat in question. Hence, the complainant has filed a Consumer complaint before the Ld. District Commission, Howrah.
The Ld. District Commission dismissed the complaint at admission stage on the ground that the alleged dispute is purely civil in nature and the case is not maintainable.
On the date of final hearing none appeared either on behalf of the complainant or the OPs appearing before this Commission. It is pertinent to mention that that appellant/complainant has neither filed the petition of complaint being No. CC/299/2019 dated 17.10.2013 before the Ld. District Commission, Howrah nor filed the impugned order.
Moreover, on careful perusal of the Agreement for Sale it appears to us that both the OPs purchased the property from one Sri Arabindo Chatterjee by way of execution of registered sale deed on 05.10.2005. The said OPs for making superstructure on their aforesaid bastu land described in the 'kha schedule' obtained sanctioned plan from Howrah Municipal Corporation and the three storied building was constructed on the case land. The owners of the property that is the OPs continued to enjoy the same in a peaceful absolute manner without interruption from anybody else. It is also mentioned in the agreement for sale that some part of the construction on the ground floor remains incomplete and on the first floor there are two and on the third floor there are four flats.
The OPs decided to execute the agreement for sale in accordance with their declaration for selling out the flats situated on second floor and third floor within 'kha schedule' property.
Accordingly, the complainant agreed a purchase a complete flat in question, therefore, the agreement for sale it appears to us that the complainant has wanted to purchase a ready flat from the OPs which is evident from Paragraph (2) of internal Page (2) of the Agreement for Sale dated 11.12.2015 which discretion the flat in question as 'a complete flat'. There is no clause for construction or development which can be termed as 'housing construction'. Therefore, the case is related to sale simplicitor and the complainant cannot be termed as 'consumer' as per Section 2(1)(d) of CP Act, 1986.
In view of above, there is no illegality in the order passed by the Ld. District Commission, Howrah, where the Ld. DCDRC has observed that the alleged dispute is purely civil in nature and no remedies available regarding such dispute under the CP Act, 1986.
Accordingly, the impugned order dated 15.11.2019 passed by the Ld. District Commission, Howrah in Complaint Case being No. CC/299/2019 is hereby confirmed.
Accordingly, the Appeal is dismissed.
However, the complainant/appellant is at liberty to agitate his grievance before the appropriate Forum for the same cause of action, if so advised.
The Appeal is thus, disposed of accordingly.
Let a copy of this order be sent to Ld. DCDRC, Howrah. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER