National Consumer Disputes Redressal
Rakesh Nag vs Kakali Manna & Anr. on 13 February, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3166 OF 2017 (Against the Order dated 30/08/2017 in Appeal No. 225/2016 of the State Commission West Bengal) 1. RAKESH NAG W/o. Sh. Subhendu Manna,
19, Koipukur Lane,
P.S. Shibpur, Howrah - 711 102 ...........Petitioner(s) Versus 1. KAKALI MANNA & ANR. S/o. Sri Sanat Kumar Nag,
105/3, Kshetra Mohan Banerjee Lane,
P.S. Shibpur, Howrah - 711 102 2. SRI SUBHENDU MANNA S/o. Sri Sanat Kumar Nag,
105/3 Kshetra Mohan Banerjee Lane,
P.S. Shibpur, Howrah - 711 102 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Petitioner : Mr. Sarthak Choudhary, Advocate For the Respondent :
Dated : 13 Feb 2018 ORDER
1. This revision is directed against the order of the State Commission West Bengal dated 30.8.2017 in RP/225/2016.
2. Briefly stated, facts relevant for the disposal of the revision petition are that the petitioner/complainant on 26.6.2012 entered into an agreement for purchase of subject flat from the respondent/opposite party for Rs.8 lakhs. An agreement for sale of flat was executed between the parties and at the time of agreement, Rs.5 lakhs was paid to the opposite party against the consideration amount. It is alleged that thereafter the complainant approached the respondent/opposite party on several occasions to receive the balance Rs.3 lakhs and execute a registered sale-deed in respect of the flat in favour of the complainant but in vein. Being aggrieved the petitioner/complainant filed the consumer complaint.
3. The respondent/opposite party on being served with the notice of the complaint filed written statement denying the allegations of deficiency in service.
4. During the pendency of the complaint the respondent filed the application challenging the maintainability of the consumer case on the ground that one case No.S-159/2015 in respect of the subject flat was pending before the DRT Unit-I, Kolkata under the SARFAESI Act. The District Forum vide its order dated 9.11.2016 rejected the plea of non-maintainability of the consumer case and adjourned the matter to 22nd December, 2016 for filing BNAs by both the parties and hearing.
5. Being aggrieved of the order of the District Forum, respondent/opposite party filed revision petition RP/225/2016 in the State Commission. The State Commission vide impugned order allowed the revision petition and directed the parties to appear before the District Forum for further proceedings in the complaint case. This has led to filing of the revision petition.
6. I have heard learned counsel for the petitioner/complainant and perused the record. On perusal of the pleadings it is evident that this is a case of agreement of sale simpliciter there being no element of service to be provided by the respondent/opposite party to the complainant. Surprisingly the State Commission after observing this fact, instead of dismissing the complaint as not maintainable has directed the District Forum to decide the complaint strictly as per the settled principle of law. Relevant observations of the State Commission are reproduced as under: -
"The transaction of sale simpliciter, as in the case on hand, also does not come within the purview of the Consumer Protection Act, 1986 as was held by the Hon'ble Supreme Court in Nitin Construction Pvt. Ltd. vs. Union of India & Ors. II (2002) CPJ 4 (SC
...
...
The foregoing discussion leads to the allowing of the instant revision and set aside the impugned order of the Ld. District Forum.
Ld. District Forum is directed to proceed with the case as per the settled principle of law in this respect.
Both the parties are directed to appear before the Ld. District Forum on 22.9.2017"
7. On bare reading of the above it is clear that the State Commission has given a categoric finding that the subject dispute is in respect of the transaction of sale simpliciter and, therefore the dispute raised does not come within the purview of Consumer Protection Act, 1986. Having come to the a foresaid conclusion the right course for the State Commission was to dismiss the complaint as not maintainable instead of remanding the matter back to the District Forum to decide the complaint strictly in accordance with settled principle of law. Thus, this is a clear case of jurisdictional error on the part of the State Commission. Therefore, the impugned order cannot be sustained. Accordingly, in exercise of the revisional powers, impugned order is set aside and the complaint is dismissed as not maintainable. It is, however, made clear that this order will not come in the way of the petitioner/complainant to avail of his remedy by approaching the Civil Court for specific performance of agreement of sale between the parties. Revision petition is disposed of accordingly.
8. Copy of the order be sent immediately to the District Forum for information.
......................J AJIT BHARIHOKE PRESIDING MEMBER