State Consumer Disputes Redressal Commission
M/S. Sumit Enterprise vs Soma Bhowmick on 28 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/534/2015 (Arisen out of Order Dated 18/07/2013 in Case No. Complaint Case No. CC/132/2011 of District Hooghly) 1. M/s. Sumit Enterprise 30/66, Tarapukur Lane, P.O. - Mallickpara, P.S. Serampore, Dist. Hooghly. 2. Balaram Nag S/o Lt. Sadhanjit Nag, 30/66, Tarapukur Lane, P.O. Mallickpara, P.S. Serampore, Dist. Hooghly. ...........Appellant(s) Versus 1. Soma Bhowmick W/o Ruplal Bhowmick, E.S.I. Hospital, Q type Quarters no. 1/29, P.O. Mallickpara, P.S. Serampore, Dist. Hooghly. 2. Piyali Nag W/o Balaram Nag, 30/66, Tarapukur Lane, P.O. Mallickpara, P.S. Serampore, Dist. Hooghly. 3. Pritam Sarkar S/o Lt. Ramapada Sarkar, 39, N.S. Road, P.O. & P.S. - Serampore, Dist. Hooghly. 4. Goutam Sarkar S/o Lt. Ramapada Sarkar, 39, N.S. Road, P.O. & P.S. - Serampore, Dist. Hooghly. 5. Uttam Sarkar S/o Lt. Ramapada Sarkar, 39, N.S. Road, P.O. & P.S. - Serampore, Dist. Hooghly. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Ms. Rama Acharya & Ms. Tanushree Dhar, Advocate For the Respondent: Mr. Arka Chakraborty, Advocate Dated : 28 Jul 2017 Final Order / Judgement
Date of Filing - 08.05.2015 Date of Hearing - 06.07.2017 Challenge in this Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Order No.20 dated 18.07.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (for short, Ld. District Forum) in Consumer Complaint no. 132/2011. By the impugned order, the Ld. District Forum allowed the complainant lodged by the Respondent No.1 Smt. Soma Bhowmick under Section 12 of the Act with certain directions upon the Appellants (developer) and Respondent Nos. 2 to 5 (landowners) including a direction to execute and register the Sale Deed and to hand over the possession of a flat measuring about 1500 sq. ft. super built up area on the ground floor being Unit No.G-10 together with proportionate share of land in Municipal Holding No.39, N.S. Avenue, Serampore under P.S.- Serampore, Dist- Hooghly within the local limits of Serampore Municipality.
The Respondent No.1 herein being complainant lodged the complaint asserting that on 25.09.2006 she entered into an agreement with the opposite parties to purchase of the subject flat. The complainant alleged that she has paid almost the entire consideration amount but the opposite parties are showing apathy to deliver the possession and to execute the Sale Deed in favour of her in respect of the subject flat.
The Appellants and the Respondent Nos. 2 to 5 being landowners/developers did not contest before the Ld. District Forum.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the petition of complaint with certain directions upon the opposite parties including a direction to deliver possession to the complainant/Respondent No.1 and to execute the Sale Deed in favour of her. Being aggrieved and dissatisfied with the said order, OP Nos. 1 & 2 i.e. developer and one of its partners has come up in this Commission with the present appeal.
Mr. Alok Mukhopadhyay, Ld. Advocate for the appellants has submitted that the Agreement for Sale clearly postulates that as per recital of the Agreement for Sale dated16.01.2010 the value of the subject flat was assessed at Rs.39,00,000/- @ Rs.2,600/- per sq. ft. and as such the Ld. District Forum should have dismissed the complaint in view of the provisions of Section 11(1) of the Act. He has further drawing my attention to Paragraph-15 of the Agreement for Sale has forcefully submitted that when the respondent no.1 intended to purchase a commercial space, certainly, she is excluded from the purview of the Act.
Per contra, Ld. Advocate for the Respondent No.1 has contended that when these questions were not raised before the Ld. District Forum, these questions cannot be agitated in an appellate stage.
I have considered the rival contention of the parties and scrutinised the materials on record including the Agreement for Sale dated 16.01.2010 entered into by and between the parties.
It is trite law that the parties are bound by the agreement and there is hardly any scope to raise any conflict as to terms of the agreement because both the parties after evaluating its pros and cons, put their signatures in the Agreement for Sale and as such the contents of Agreement for Sale towers above the rest.
Undisputedly, on 16.01.2010 the respondent no.1 entered into an agreement with the opposite parties i.e. the landowners and the developers to purchase of a flat measuring about 1500 sq. ft. super built up area on the ground floor being Unit No. G-10 together with proportionate share of land in Municipal Holding No.39, N.S. Avenue, Serampore under P.S.- Serampore, Dist- Hooghly within the local limits of Serampore Municipality at a total consideration of Rs.39,00,000/- @ Rs.2,600/- per sq. ft.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz - (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi - vs. - D.L.F. Universal Ltd. & Anr.) the Hon'ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.
In the case beforehand, it is evident that in their written versions, the landowners/developers did not aver anything challenging the pecuniary jurisdiction of the Ld. District Forum. Therefore, the question of lacking pecuniary jurisdiction does not bear any value at this appellate stage.
Next, we will consider whether the complainant/respondent no.1 can be categorised as 'consumer' as defined in Section 2(1)(d) of the Act. In order to obtain a relief under the Scheme of the Act, the Complainant must satisfy that he/she is a Consumer within the meaning of Section 2(1)(d) of the Act. For proper understanding of the matter, it would be pertinent to reproduce the definitions of Section 2(1)(d) which runs as follows -
"Consumer means any person who -
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 then 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 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 purpose".
Explanation:- for the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment".
The foregoing provision provides that the 'consumer' is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes. Explanation to the Section creates and exception and states that clause 'commercial purpose' does not include used by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.
It is well settled that a commercial user cannot maintain consumer complaint. In this backdrop it would be pertinent to have a look to the schedule 'B' of the Agreement for Sale which clearly suggests that the Respondent No.1 intended to purchase the space of 1500 sq. ft. for office area. In Paragraph-15 of the Agreement for Sale, it has been clearly mentioned - "The purchaser shall use the said unit for commercial/office purpose only". Therefore, from the terms of Agreement for Sale, it becomes quite clear that the respondent no.1 intended to purchase the commercial space for the purpose of his business and the object of the business is to earn profit.
In the petition of complaint, nowhere it has been mentioned that the respondent/complainant intended to purchase the flat for earning her livelihood by means of self-employment. It is also a settled law that acting in a supervisory capacity would not satisfy the requirement of explanation to Section 2(1)(d)(ii) of the Act.
The Ld. District Forum has passed the order, perhaps without considering the recitals of the Agreement for Sale. In any case, when it is quite evident that the respondent no.1/complainant intended to purchase the subject property for running her business and to earn profit, certainly she would be excluded from the purview of the Act.
Considering the above, I am constrained to interfere with the order impugned. In other words, since the order has been passed without considering the materials on record and not in conformity with the provisions of the Act, the impugned order is liable to be set aside.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned Order is hereby set aside.
Consequently, CC/132/2011 stands dismissed.
However, this order will not debar the Respondent No.1/Complainant to approach a competent Court/Forum in accordance with law and in the process she may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works - vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation as embodied in Section 14(1) of Indian Limitation Act.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER