State Consumer Disputes Redressal Commission
Sri Utpal Debnath vs M/S. Seal Construction Pvt. Ltd. on 30 December, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/32/2013 (Arisen out of Order Dated 09/11/2012 in Case No. Complaint Case No. CC/90/2012 of District North 24 Parganas) 1. Sri Utpal Debnath S/o Sri Ramesh Chandra Debnath, 2, Ramanath Kabiraj Lane, P.O. Bowbazar, P.S. Muchipara, Kolkata-700 012, Dist. Kolkata & also at G-14, Rabindra Pally, Alpan Apart., Flat no.13, Gr. Floor, Jyangra, P.O. Jyangra, Jora Mandir, P.S. Baguiati, Dist. North 24 Pgs. ...........Appellant(s) Versus 1. M/s. Seal Construction Pvt. Ltd. HJ/11, Sachindralal Sarani Jora Mandir, Baguiati, P.S. Baguiati, Kolkata-700 059, P.O. Deshbandhunagar, Dist. North 24 Pgs., W.B, now at D/4/13, Sastri Bagan, Disha Apart., 1st Floor, Flat no.3, Baguiati, P.S. Baguiati, Kolkata-700 059, P.O. Deshbandhunagar, Dist. North 24 Pgs., W.B 2. Smt. Mahamaya alias Chabi Mondal W/o Late Ashim Mondal, Gobinda Nibas, Jyangra, P.S. - Baguiati, Kolkata - 700 059, Dist. North 24 Pgs., W.B. 3. Smt. Tithi Mondal (Maity) W/o Sri Mrinal Maity, D/o Late Ashim Mondal, Gobinda Nibas, Jyangra, P.S. - Baguiati, Kolkata - 700 059, Dist. North 24 Pgs., W.B. 4. Smt. Radharani Mondal W/o Late Beharilal Mondal, M/o Late Ashim Mondal, T-98, Teghoria, Rajarhat Road, P.S. - Baguiati, Kolkata - 700 059, Dist. North 24 Pgs., W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Bimal Chakraborti. , Advocate For the Respondent: Mrs. Piyali Banerjee, Advocate Ms. Piyali Banerjee, Advocate Ms. Piyali Banerjee, Advocate ORDER Date of Hearing the 23rd Day of December, 2015 Date of Judgment Wednesday, the 30th Day of December, 2015 JUDGMENT
This appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') is to challenge the Judgment/Final Order dated 09.11.2012 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (For short, Ld. District Forum) in consumer complaint No.90 of 2012 whereby the Appellant's complaint under Section 12 of the Act was dismissed on contest against Respondent No.1 and ex-parte against Respondent Nos. 2 to 4.
The Appellant has filed the complaint alleging that the Respondent No.1 is a Promoter by profession and Respondent Nos.2 to 4 are registered Land Owners of a property comprising of 10 Cottach 4 Chittacks 12 Sq. ft. lying and situated at Mouja Teghoria, P.S. Baguiati, within District North 24 Parganas after demise of one, Ashim Mondal, passed away on 06.11.2006. On 29.08.2002, the Respondent No.1 has entered into an agreement for development of 'A' Schedule property and on the self-same date the Respondent No.2 has entrusted the Respondent No.1 by way of executing a registered General Power of Attorney the right to sell, transfer the constructed unit/flat to the intending purchasers/buyers on consideration. On 06.02.2006 the Appellant had entered into an agreement for sale with Respondent No.1 with respect to a flat being No.5 on the 2nd Floor measuring an area of more or less 1050 sq. ft. which is a part of the said plot of land at a consideration amount of Rs.10,50,000/-. The Appellant has stated that he has paid Rs.10,20,000/- to the Respondent No.1 on various dates and the Respondent No.1 has duly received the same. However, in accordance with the terms of the agreement, the Respondent No.1 did not hand over the possession of the flat in favour of him and in this regard all his requests and persuasions remain unheeded. The letter given by him through his Advocate on 02.01.2012 also went in vain. Hence, the Complaint with the following prayers, viz. - (a) an order directing the Respondents/Opposite Parties to execute and register the Deed of Conveyance; (b) Compensation of Rs.9,00,000/- for harassment and mental agony; (c) costs of proceedings etc. The Respondent No.1 being Opposite Party No.1 by filing a Written Version disputed the allegations stating that the Appellant has his residential property at premises No.2, Ram Nath Kabiraj Lane, P.O. Bow Bazar, Kolkata - 700012. The Appellant has also purchased a flat being flat No.12 on the ground floor in 'Alapan Apartment' situated at G/14, Rabindra Pally, P.S. Baguiati, Kolkata - 700 059 on a consideration of Rs.4,30,000/- only from him. It has also been alleged that the Appellant has purchased another flat being flat No.4C on the 3rd Floor, 'Aditya Apartment' at premises No.242, Kaikhali Main Road, Kolkata - 700052 and when the Appellant has already 3 residential accommodation for him as well as for his family members as on date, he has not yet to register the flat of 'Alapan Apartment' bought from the Respondent No.1. The further allegation of the Respondent No.1 is that the sole motive of the Appellant to extract money illegally and with that aim in view he has made out the case for sale of 200 sq. ft. shop on the ground floor at 'Avantika Apartment' and inter-change the same with dummy agreement for sale of 1050 sq. ft. i.e. the disputed flat of this case.
After assessing the materials on record the Ld. District Forum has observed that the petition of Complainant was a motivated one just to grab a flat by practicing fraud by the Appellant upon the Respondents and as such dismissed the Complaint with a direction upon the Complainant/Appellant to make payment of Rs.10,000/- for filing frivolous and vexatious Complaint.
Being aggrieved and dissatisfied with the said order, the instant appeal has been preferred.
We have scrutinized the materials on record and considered the submission advanced by Mr. Bimal Chakraborty, Ld. Advocate appearing for the Appellant as well as Mr. G.C. Banerjee, Ld. Advocate appearing for the Respondent. We have scrutinized the materials on recsord.
Having heard the Ld. Advocates appearing for the respective parties and on going through the materials on record it emerges that one, Ashim Mondal was the owner in respect of a piece of land measuring an area of 10 Cottach 4 Chittacks 12 sq. ft. under R.S. Plot No.404 & 506 appertaining to R.S. Khatian No.15 in Mouja Teghoria, P.S. Baguiati under Rajarhat-Gopalpur Municipality within District North 24 Parganas. On 29.08.2002, the said Ashim Mondal has entered into a development agreement with Respondent No.1 for development of the said property. On the self-same date he also executed a registered General Power of Attorney in favour of Respondent No.1 wherein he has given absolute power and right to Respondent No.1 to sell, transfer, etc. of separate unit/flat to the intending purchaser/buyers after taking consideration money from them.
Now, the Appellant has alleged that on 06.02.2006 he has entered into an agreement with the Respondent No.1 to purchase of a self-contained flat measuring about 1050 sq. ft. being flat No.5 on the 2nd Floor of 'A' Schedule property where the Respondent No.1 undertook to construct a multi-storied building. The agreement in question appears to be executed in a dummy paper and initial page of the agreement for sale clearly indicates that the said agreement is not in an original non-judicial stamp purchased from the Stamp Vendor. In course of hearing of the appeal Ld. Advocate for the Appellant has placed before us another agreement dated 13.07.2007 executed by land owner as vendor and Respondent No.1 as Developer in favour of the Appellant and one Sri Shyamal Sarkar as purchasers. The said agreement appears to be an original one purchased from the stamp vendor. On a bare perusal of two agreement it appears to us that the agreement in question executed by Respondent No.1 in favour of the Appellant does not depict the clear picture. In other words, the Deed in question could not inspire our confidence because a first page of the agreement is the photocopy prepared from colour Xerox machine.
Several receipts have been filed on behalf of the Appellant to apprise that he has paid consideration amount of Rs.2,00,000/- on 06.02.2006, Rs.2,90,000/- on 31.03.2006, Rs.80,000/- on 15.12.2006 and Rs.4,50,000/- on 15.04.2007. However, on the receipts dated 06.02.2006, 31.03.2006 and 15.12.2006 we find overwriting and interpolations. In some place it is quite clear that the word 'shop' has been changed to 'flat' 5 and word 'ground' has been changed to 'second'.
It is categorically stated on behalf of the Respondent No.1 that the agreement has been manufactured by Appellantin order to extract money from him to make out a case for sale of 200 sq. ft. of shop on the ground floor of 'Avantika Apartment'. In course of hearing of the appeal it has come to our notice that in respect of said shop of 200 sq. ft. Appellant initiated one Complaint being Consumer Complaint No.334 of 2015 before the Ld. District Forum and the said Complaint was dismissed on contest against Respondent No.1 on 11.12.2015.
It is pertinent to note here that the Appellant has purchased one flat from Respondent No.1 at a consideration of Rs.4,30,000/- being flat No.13 in the 'Avantika Apartment' at premises No.G/14, Rabindra Pally, P.S. Baguiati, Kolkata-700059 and possession was delivered to the Appellant on 06.07.2003. However, the Appellant is not eager to get the flat in question to be registered. The Appellant is an employee of Rent Control Office, Kolkata and being an employee of Government of West Bengal he is not interested to get it registered, perhaps, yet to obtain any permission in this regard from the Government. Be that as it may, it remains undisputed that the Appellant who already possessed his residential house at Bow Bazar, Kolkata has purchased one flat from Respondent No.1 at Rabindra Pally under Baguiati P.S. It is also evident that the Appellant has booked one shop room with Respondent No.1 in the suit building. Now, he has intended to purchase another flat in the same building i.e. disputed flat. But the agreement dated 13.07.2007 placed before this Bench also makes it clear that the Appellant along with one Shri Shyamal Sarkar has intended to purchase two flats being flat Nos.1 & 2 on the First Floor measuring a super-built area of 1700 sq. ft. in the same building.
It is well settled law if the goods are purchased for re-sale or for commercial purpose then such Consumer would be excluded from the coverage of the Act. The facts and circumstances of the case indicate in spite of having his own house at Bow Bazar and after purchasing of a flat at Rabindra Pally under P.S. Baguiati from Respondent No.1 when the Appellant being purchaser intended to purchase one shop on ground floor of 200 sq. ft., two flats of 1700 Sq. ft. on the First Floor and the flat in question, it would mean that the Appellant purchased these properties to generate profit from them and when the profit is the motto of commercial purpose, in accordance with the decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in I (2005) CPJ 27 (M/s. Harolia Motors - Vs. - National Insurance Co. Ltd.) there is no other option but to hold that the Appellant/Complainant purchased the flat in question for commercial purpose and as such, he is not entitled to any relief under the Act. In other words, the Act does not authorise the Appellant to seek remedy before a Consumer Fora and his rights and contentions, if any, can only be considered by a competent Civil Court having jurisdiction to entertain it. The Ld. District Forum had no reason to exercise much and the Complaint should have been nipped in the bud on that ground.
We are surprised to note that this vital point has not been agitated by the Respondents either in their Written Version or in the Brief Notes of Argument placed before us.
Mr. G. C. Banerjee, Ld. Counsel appearing for the Respondents has submitted that as the Consumer Complaint has not been filed within 2 years from the date of actual cause of action and further, no application for condonation of delay has been filed before the Ld. District Forum the Complaint should have been dismissed in limini. In reply to the same, Ld. Advocate for the Appellant has drawn our attention to the letter dated 09.02.2012 given on behalf of Respondent No.1 wherefrom it appears that the Appellant had paid a sum of Rs.5,70,000/- on account of loan in favour of the Respondent No.1. This letter may be considered as a part of cause of action because cause of action means bundle of facts. When the Appellant has stated that in respect of the flat in question he has paid Rs.10,20,000/- out of total consideration of Rs.10,50,000/- to the Respondent No.1 and in reply to the same the Respondent No.1 has admitted about payment of Rs.5,70,000/- as loan by legal notice dated 09.02.2012 the said date may also considered as a date of continuous cause of action. The Complaint was initiated within 3 months, precisely on 29.03.2012 from that date and as such, we are not in agreement with the Ld. Counsel for Respondent No.1 that the Petition of Complaint has not been filed in conformity with the provisions of Section 24A of the Act.
However, it should not be out of place to mention here that time is the essence of contract and the agreement in question does not show any date when the construction would be completed and contents of paragraph 4 of the agreement in this regard remain blank. Moreover, the agreement does not show signature of any attesting witness and as such, it also hits by the provisions of Section 3 of the Transfer of Property Act, 1882.
The Ld. District Forum had no occasion to mention that the Appellant is a 'cheat' because a Consumer Fora while deciding a dispute use to see whether the Complaint being 'Consumer' has suffered from any deficiency in service from the Opposite Party as Service Provider. The word 'Cheat' is unknown to a Consumer Forum and there is no evidence whatsoever to show that any criminal action has been initiated against the Appellant for such alleged cheating. Equally, Ld. District Forum had no reason to observe that the Appellant should have obtained permission prior to entering into agreement to purchase in accordance with the provisions of Rule 5(2) West Bengal Service (Duties, Rights and Obligations of the Government Employees) Rules, 1980. If any Government employee violates any Conduct Rule then Higher Authority of such employee may initiate action in accordance with the provisions of the Rules and when there is no evidence that the Appellant has not obtained any permission from the Higher Authority to purchase the flat in question, such a unwanted remarks could have been avoided.
In any case, we do not find any merit in the appeal when the Appellant himself is claiming that he has entered into an agreement with the Respondent No.1/Developer to purchase of a shop room on the ground floor, one flat on the First Floor and one flat on the Second Floor in spite of having his own flat at Rabindra Pally, P.S. Baguiati, Kolkata - 700059 which he purchased from the Respondent No.1 on consideration of Rs.4,30,000/- it indicates that the Appellant intended to purchase flats or shop to generate profit which in turn means 'commercial purpose' and as such, excluded from the coverage of the Act.
Therefore, considering the submission advanced by the Ld. Advocates for the parties and on going through the materials on record that we are not in agreement with the reasons assigned by the Ld. District Forum for dismissing the Complaint, yet we are sharing the view of the Ld. District Forum that the Appellant being Complainant intended to grab the flat by invoking the provisions of the Act. In other words, the appeal being meritless one is liable to be dismissed. However, we do not like to impose any order as to cost in this appeal.
For the reasons foresaid, appeal is dismissed on contest but without any order as to costs.
The Judgment/Final Order dated 09.11.2012 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat in Consumer Complaint No.90 of 2012 is hereby affirmed.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER