State Consumer Disputes Redressal Commission
Pannalal Golchha, Huf, Rep. By Its Karta ... vs Santosh Kumar Dalmia on 17 January, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1250/2015 ( Date of Filing : 26 Nov 2015 ) (Arisen out of Order Dated 22/05/2015 in Case No. CC/515/2014 of District Kolkata-II(Central)) 1. Pannalal Golchha, HUF, Rep. by its Karta & Manager, Sri Pannalal Jain 9/4, Middleton Row, P.S - Shakespeare Sarani, Kolkata - 700 071. ...........Appellant(s) Versus 1. Santosh Kumar Dalmia 30A, Burtolla Street, P.S - Posta, Kolkata - 700 007. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT For the Appellant: Mr. D. bhandari, Ms. Pallabi Das, Advocate For the Respondent: None appears Dated : 17 Jan 2019 Final Order / Judgement
HON'BLE MR.JUSTICE ISHAN CHANDRA DAS,PRESIDENT This Appeal has been directed against the judgement and order dated 22.5.2015 passed by ld. D.C.D.R.F. Kolkata Unit II in C.C.515 of 2014 where ld. Forum concerned while disposing of the said Complaint Case dismissed the same exparte against the Opposite Parties with penal cost of Rs.5,000/- to be imposed upon the Complainant for filing such vexatious claim to be paid within 30 days from the date of the order with default clause.
Being aggrieved by such order of dismissal the present Appeal has been preferred by the Complainant who filed the instant Complaint Case claiming certain reliefs like direction upon the Opposite parties to execute and register the Deed of conveyance in respect of the property, referred to in Schedule 'B' and 'C' of the Petition of Complaint.
Briefly stated, the case of the Complainant/Appellant (hereinafter referred to as the Complainant) was that one Smt. Bhagabati Debi Dalmia was the absolute owner in respect of a five storied brick built dwelling house together with part and parcel of the land measuring 5 cottah 15 chitaks 10 sft. more or less as referred to in Schedule A of the Petition of Complaint. By virtue of an agreement dated 15.1.1990 Smt. Bhagabati Debi Dalmia being the owner of the property entered into an agreement for sale with Mr. Gimmy Shapur Ardeshpur, residing at 177 , Lenin Sarani, Kolkata - 700 013 in respect of a flat on the northern side of the first floor measuring about 500 Sft at premises No.13, Royd Street, Kolkata-700 016 described in Schedule B for a sum of Rs.80,000/- (Rupees eighty thousand) . Said Gimmy Shapur Ardeshpur was a monthly tenant under Smt. Bhagabati Debi Dalmia, in respect of B Schedule property since 7.5.1990 and paid a monthly rent of Rs.450/- (Rupees four hundred fifty) according to English calendar and in terms of the agreement dated 11.2.1997 Smt. Bhagabati Debi Dalmia being the owner entered into an agreement for sale with Mr. Gimmy Shapur Ardeshpur in respect of a flat on the mezzanine floor measuring 450 sft super built up area at the said premises described in Schedule-C. Said Gimmy Shapur Ardeshpur paid full consideration as agreed to Smt. Bhagabati Debi Dalmia and was in possession in the aforesaid Schedule B and Schedule C flats but no Deed of conveyance has been executed and registered in his name. Subsequently, by an agreement dated 16.4.1997 said Smt. Bhagabati Debi Dalmia and Mr. Gimmy Shapur Ardeshpur entered into an agreement with the Complainant to sell all flats , one flat on the northern side of the first floor measuring 500 sft. i.e. Schedule B property and flat C i..e another flat measuring 450 sft. on the mezzanine floor and paid the entire consideration to Said Gimmy Shapur Ardeshpur and nothing remains due. After the execution of the said agreement dated 16.4.1997 said Smt. Bhagabati Debi Dalmia died intestate leaving the Opposite parties as her legal heirs under Hindu Succession Act and the Opposite Party being the legal heir of said Bhagabati Debi Dalmia was bound by the agreement dated 16.4.1997. In terms of the agreement dated 16.4.97 the Complainant was put in possession of the flat referred to in Schedule B and C of the Petition of Complaint on payment of full consideration i.e. Rs.4,03750/- (Rupees four lakh three thousand seven hundred fifty) and repeatedly requested the Opposite parties to execute and register the Deed of conveyance in respect of both the flats in his favour, sent legal notice dated 28.7.2014 asking the Opposite parties to that effect in his favour which did not yield any result as the said letter was returned with endorsement addressee moved/left/not known. Inspite of letter dated 28.7.2014 the Opposite parties did not comply with the requisition contained in the said letter though the complainant was ready and willing to perform his obligation presenting himself at the office of the Registrar of Assurance , Kolkata and to bear the stamp duty and registration fees and in the premises the complainant asked the OPs to execute and register the Deed of conveyance in respect of Schedule B and C property to pay compensation to the tune of Rs.50,000/- (Rupees fifty thousand) and Rs.25,000/- (Rupees twenty five thousand) towards litigation cost. Hence, this complaint case.
The Opposite parties did not appear to contest the Complaint case and left the matter to be heard exparte against him.
The averments as contained in the Petition of complaint that the Complainant entered into an agreement for sale of two flats referred to Schedule B and C of the Petition of Complaint for a sum of Rs.4,03,750/- (Rupees four lakh three thousand seven hundred fifty) and the statement in the petition of complaint clearly reflected that there was no service purchased by the Complainant for becoming a consumer within the meaning of Section 2(e) of the Consumer Protection Act 1986. Undoubtedly, there was an agreement for sale of two flats executed between the parties and in the absence of any service purchased by the complainant, the purchase is not a subject matter of a consumer dispute but a 'sale simplicitor' and the dispute is not being a consumer dispute within the meaning of Section 2(e) of the Act, and it would be termed as 'sale simplicitor' where the remedy of enforcing the agreement lies before the Civil Court by filing a suit for 'Specific Performance of Contract'.
Ld. Counsel appearing for the Appellant in course of hearing simply criticize the judgement impugned and submitted that the observation of the ld. D.C.D.R.F. with regard to Section 24A of the C.P.Act was not proper but in my considered opinion the remedy of the complainant lies before the Civil court by filing a suit for Specific Performance of Contract, as observed earlier but not before a Consumer court. Hence, no relief can be granted in favour of the complainant and ld. D.C.D.R.F. was justified in dismissing the complaint case.
Hence, the Appeal stands dismissed substantially resulting that the Complaint Case is also dismissed exparte. However, taking into consideration the facts and circumstances of the case the direction against the Complainant in paying penalty of a sumRs.5,000/- is also hereby set aside.
With the above observations and directions this Appeal stands disposed of. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT