State Consumer Disputes Redressal Commission
Chhanda Choudhuri vs Kailaspati Chakraborty on 27 January, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/08/444 DATE OF FILING:21.11.2008 DATE OF FINAL ORDER: 27.01.2009 APPELLANT/OPPOSITE PARTY Chhanda Choudhuri W/o Sri Pradip Kumar Choudhuri 133A, Prince Golam Hossain Shah Road, 1st floor Jadavpur, Kolkata 700 032 RESPONDENT/COMPLAINANT Kailaspati Chakraborty S/o Late Sati Kumar Chakraborty 133A, Prince Golam Hossain Shah Road, Ground Floor Jadavpur, Kolkata 700 032 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mr. S. Chowdhury, Advocate FOR THE RESPONDENT : Mr. P. Basu, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed challenging order dated 04.11.2008 passed by District Consumer Disputes Redressal Forum, South 24 Parganas in CC No.131/2008 whereby the OP was directed to execute and register the Deed of Conveyance of the first floor of the building in favour of the petitioner within one month from the order, on realization of Rs.10 lacs from the petitioner and the OP was to deliver possession of the first floor to the petitioner and also to pay Rs.10,000/- as compensation for causing harassment to the petitioner providing further that in case the OP failed to register the sale deed within prescribed period, registration will be done by the machinery of the Forum. The facts stated in the complaint are that the OP was the absolute owner of the concerned land along with first floor situated thereon. The OP sold the ground floor in the said premises to the complainant by a Deed of Conveyance dated 03.8.2001. The OP agreed to sell the first floor of the said premises, the roof thereon as also the open space in the ground floor and the proportionate area of the land underneath to the complainant by agreement dated 08.02.2006.
Though the complainant is/was ready and willing to complete the purchase and sent a draft for approval of the OP, the OP intimated by letter dated 01.8.2007 that the said agreement for sale dated 08.02.2006 stood terminated and he sent a cheque for Rs.2,24,000/- in favour of the complainant being the refund of earnest money paid by the complainant with interest @ 8% per annum. Cheque was returned by the complainant who requested the OP to take steps to execute and register the Deed of Conveyance after taking the balance consideration money which the OP did not comply with. The complaint was filed asking for execution and registration of the Deed of Conveyance in respect of the first floor, the roof and the open space in the ground floor and to handover the possession of the same, Rs.50,000/- as compensation and cost.
Heard Mr. Sabyasachi Chowdhury, the Ld. Advocate for the Appellant and Mr. Prabir Basu, the Ld. Advocate for the Respondent.
The first contention of the appellant is that the proceeding filed before the Forum is in fact a suit for specific performance of contract for sale of a particular property and, therefore, such a proceeding cannot be filed before a Forum under the Consumer Protection Act, 1986. In this connection reliance was placed on the judgment in the case of Lucknow Development Authority-Vs-M.K. Gupta reported in (1993)3 CPJ 7, Bangalore Development Authority-Vs-Syndicate Bank reported in AIR 2007 SC 2198 as also the law as contained in Section 2(1)(o) of the Consumer Protection Act contending that in respect of an agreement for housing construction the contractor has been held to be a service provider and the owner of the property has been held to be a consumer and, therefore, in respect of a sale simplicitor of an immovable property, the Forum cannot be approached particularly when there is no agreement for housing construction.
The next contention of the appellant is that the agreement on the basis of which the prayer has been made being an unregistered agreement, without impounding the document cannot be taken in evidence and, therefore, no relief can be granted on such an agreement prior to impounding. Reliance was placed on the judgment in the case of Dr. Swapnadin Lahiri-Vs-Tridib Das Roy reported in (1999)2 CHN 369, Krishan Baldev Gupta-Vs-Hariyana State Industrial Development Corporation reported in 1993 CPJ 191 and MP Housing Board-Vs-Udayveer Singh reported in (1994)1 CPR 487.
The last contention of the appellant is that even before a Civil Court when a suit for specific performance of contract is filed relief therein is discretionary and in the present case in view of the allegation in the pleadings the complainant is not entitled to any relief. The fact of mothers illness has to be taken into consideration.
In this connection reference was made to provisions of law as contained in Section 20 of the Specific Relief Act.
On behalf of the Respondents reliance was placed on the judgment in the case of Lucknow Development Authority (Supra) and particularly paragraph 10 thereof in support of the contention of the respondent that a Forum under the Consumer Protection Act can entertain a complaint asking for specific performance of contract for sale of a part of the property as in such case also the vendor is the service provider and the purchasers is the consumer. Reliance was placed on the judgment in the case of Punjab Water Supply & Sewage Board-Vs-M/s Udaipur Cement Works reported in (1995)3 CPR 451, Sheshrao Udaybhanji Ajmire-Vs-Prabhakar Manohar Rao Deshpande reported in (2003)1 CPR 333, Mr. France B. Martins-Vs-Mrs. Mafalda Maria Teresa Rodrigues reported in (1999)3 CPR 67, K. Uma Kant-Vs-First Flight Couriers reported in 2008 CTJ 32 and Mandira Mookerjee-Vs-District Consumer Disputes Redressal Forum reported in (2005)1 CLJ 496.
After considering the above contentions and perusing the materials on record as also law cited by the contesting parties it appears that the agreement which is the subject matter of the present proceeding is one for sale simplicitor of portion of a property having a constructed building.
Therefore, according to the principle decided in the case of Lucknow Development Authority (Supra) and followed in the case of Bangalore Development Authority (Supra) holding that in case of a Housing Construction Agreement the purchaser stands as consumer, does not apply. The observations made in paragraph 6 of the case of Lucknow Development Authority (Supra) do not support the view that Forum can be approached for specific performance of contract for sale of a flat when contract does not provide for any housing construction. The observation made in paragraph 7 of the judgment is in the background of discussion in paragraph 6 thereof.
The case of Bangalore Development Authority-Vs-Syndicate Bank (Supra) has considered sale of land/flat by Development authorities and the decision in the case of Lucknow Development Authority has been so applied.
These cases do not make a dispute on agreement for sale of a constructed building or a portion thereof a consumer dispute as it neither relates to sale of goods as defined in Sale of Goods Act nor to hiring or availing of any services.
In the case of Punjab Water Supply and Sewage Board (Supra) the transaction was of sale of cement and the observation of the Apex Court was on blanket observation of the National Commission and not laying down any law.
Similarly in the case of Mandira Mookerjee (Supra) the Division Bench did not hold dispute on sale of immovable property a consumer dispute but on other terms in the agreement which amounted to service.
The judgment in the case of K. Uma Kant (Supra) also does not help the respondent.
In the circumstances, we are of the opinion that such proceeding is not maintainable and, therefore, the other questions raised as regards impounding and the discretion of the Court does not require a decision in the present appeal.
In above view of the finding the appeal is allowed and the impugned judgment is set aside. The complaint is dismissed and there will be no order as to costs.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT