National Consumer Disputes Redressal
Pranab Basak vs Suhas Chatterjee on 23 June, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 752 OF 2017 (Against the Order dated 20/11/2015 in Appeal No. 171/2015 of the State Commission West Bengal) 1. PRANAB BASAK S/O. LT. GOLAK BIHARI BASAK, R/O. 36, PALM AVENUE POLICE STATION KARAYA, DISTRICT-KOLKATA-700019 WEST BENGAL ...........Petitioner(s) Versus 1. SUHAS CHATTERJEE S/O. LT. BHOLANATH CHATTERJEE, R/O. FLAT NO. 401A & 402B, 4TH FLOOR, PRATIMA APARTMENT 373, MOHIARI ROAD, P.O. GIP COLONY, POLICE STATION JAGACHHA, DISTRICT-HOWRAH-711112 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA,MEMBER For the Petitioner : Mr. Srijan Nayak, Advocate For the Respondent :
Dated : 23 Jun 2017 ORDER This revision is directed against the order of the State Commission West Bengal dated 07.02.2017 in RP No. 171 of 2015.
2. Shorn off unnecessary details, the facts relevant for the disposal of the revision petition are that the complainant had booked and purchased two flats in the building being developed by the opposite party on 09.10.2013 and 20.06.2013. According to the complainant, the total consideration of the flats was Rs.41,91,600/-. Complainant alleging various deficiencies in service on the part of the opposite party filed a consumer complaint no. 171 of 2015 in District Forum, Howrah.
3. The petitioner / opposite party on being served with the notice filed objection challenging the maintainability of the consumer complaint on two counts:
Admittedly the complainant had booked two residential flats which means that he had booked the flats for commercial purpose, therefore, the complainant is not a consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986;
That District Forum does not have the pecuniary jurisdiction to entertain the Consumer Complaint;
4. The District Forum rejected the plea of the petitioner against the maintainability of the complaint.
5. Being aggrieved, the petitioner filed revision against the order of the District Forum. The State Commission, West Bengal rejected the plea of the petitioner that the flats were booked for commercial purpose, therefore, the respondent is not a consumer. The plea of the petitioner on the ground of pecuniary jurisdiction was however, accepted. The State Commission thus dismissed the complaint on the ground of pecuniary jurisdiction and observed that the respondent may file fresh consumer complaint before the appropriate forum.
6. Being aggrieved of the order of the State Commission, petitioner has approached this Commission. Learned counsel for the petitioner has contended that the impugned order of the State Commission holding that complainant falls within the definition of consumer is not sustainable as it has been passed in utter disregard of earlier orders of the State Commission.
7. We do not find any merit in the above contention. In our view, merely because a person has booked two flats in a project, it cannot be concluded that he had booked the flats for commercial purpose, unless it is established that complainant is dealing in sale and purchase of real estate or his real intention in booking the flats was to sale the same on profit on appreciation of the value of the real estate. Thus, it is clear that whether or not a person has booked more than one flat for commercial purpose is a mixed question of law and fact which can be decided only on the basis of evidence. Thus the order of the State Commission cannot be faulted.
8. In view of the discussion above, we do not find any infirmity in the order of the State Commission which may call for interference in exercise of revisional jurisdiction. Revision Petition is, therefore, dismissed with the observation that if the respondent resorts to filing of consumer complaint before the appropriate Fora, the opposite party shall be at liberty to take the preliminary objection regarding maintainability which shall be decided by the appropriate Fora on the basis of evidence in accordance with law.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER