State Consumer Disputes Redressal Commission
Sri Uttam Khanra vs Sri Subrata Khanra on 6 March, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/93/2016 ( Date of Filing : 04 Mar 2016 ) 1. Sri Uttam Khanra S/o, Sri Ashoke Khanra, Premises No. - 25/J, Matilal Basak Lane, P.S - Phoolbagan, Kol - 700 054, Dist - South 24 Pgs. ...........Complainant(s) Versus 1. Sri Subrata Khanra S/o, Sri Ajit Khanra alias Ajit Khanra, Vill - Faridpur, P.O - Chaipur, P.S - Daspur, Dist - Paschim Medinipur, Pin - 721 148. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Santosh Kumar De, Ms. Jayashree Saha, Advocate For the Opp. Party: Mr. Barun Prasad, Mr. Sovanlal Bera, Advocate Dated : 06 Mar 2019 Final Order / Judgement PER: HON'BLE MRS. DIPA SEN (MAITY), MEMBER
The instant complaint under Section 17 of Consumer Protection Act, 1986 is on behalf of the intending purchaser against the Opposite Party on the allegation of deficiency of service.
The brief facts of the complainant's case is that he purchased a flat at the premises no.23U, Matilal Basak Lane, P.S. Phoolbagan, Kolkata-700 054. The complainant has entered into an Agreement For Sale dated 30.03.2015 with the OP/vendor thereof for the purchasing of a residential flat measuring about 450 sq.ft. super built up area together with open adjacent left out vacant space measuring about 140 sq.ft. being part of a 3 storied building together with the undivided impartial proportionate share in land with the same premises at a total consideration amount of Rs. 17,00,000/-. The complainant has so far paid total sum of Rs.9,30,000/- out of Rs.17,00,000/-. The balance amount of Rs.7,15,000/remains to be paid from the bank loan. The complainant applied for bank loan from State Bank of India, are ACPC, Rajarhat, which was duly sanctioned by the State Bank of India. The loan so sanctioned amounting to Rs.7,15,000/- has being processed in favour of Subrata Khanra, the OP vide DD No.860407 dtd.02.12.2015. The OP promised that the Deed of Conveyance would be executed by 07.12.2015. But the OP is trying to evade and avoid to execute and register the Deed of Conveyance in the favour of complainant. The OP threatened the complainant to vacate the said flat along with open space. The possession of the said flat along with the open space of 140 sq. ft. has been delivered to the complainant without issuing any Occupancy Certificate/Possession Letter/CC without getting any other way the complainant approached before the Commission with the prayer to direct the OP to issue Possession Letter/CC and to execute and register the Deed of Conveyance in respect of the said flat an open space along with the compensation and cost.
In support of his case, complainant has tendered evidence through affidavit along with several documents. He has also filed Brief Notes of Argument in support of his case. On the other hand, Ld. Advocate for the OP appeared and by filing written version denied and disputed all allegations made against him and thereby stated that the disputes between the parties are purely civil in nature. The OP is the owner of the premises no.23U, Matilal Basak Lane, Phoolbagan, Kolkata-700 054. The OP has constructed 3 storied building on the same premises with the financial help in the form of Bank loan from SBI, Gopiganj Branch, Daspur, Paschim Medinipur against mortgage of property. That to meet up the loan amount and subsequent sudden serious illness of the son of the OP, the OP had to take loan from the complainant who is the close relative of OP. At that time the op. was compelled and agreed to execute one sell Agreement for one self contained residential flat with a portion measuring about 450 sq.ft. super built up area along with 140 sq. ft. adjacent open /vacant land of their three storied residential dwelling house as security of that loan. There was no hiring or availing of service from the op. party .The complainant is using the ground floor since long and locked the entire building and not even allowing the opposite party to enter into their own property. Accordingly, the opposite party has lodged a complainant before Phoolbagan Police station. He has filed three sets of judgments delivered by the Hon'ble National Commission in support of his case' We have given due consideration to the submission made by the Ld. Advocates of both the parties and perused materials on record. On careful perusal of record it appears that no element of service associated with" Housing construction" as per 2(i)(o)of the C. P. Act is present in the Agreement dated 30th March,2015.Furthermore,on careful perusal of the said Agreement it appears to us that the said Agreement for sale was for purchasing one ready built flat measuring 450 sq.ft. "as is where is basis" along with one open space of 140 sq.ft. for consideration. There was no promise of rendering service related to housing construction in respect of that flat was given by the opposite party. As such there being no element of service in contract, we cannot consider the complainant as consumer u/s 2(i)(d) of the C. P. Act.
The relationship between the parties is of purchaser and seller of flat along with land ,and would be governed by law of contract and not under C.P.Act. Therefore, the complaint does not come within the purview of C.P. Act 1986 as held by the Hon'ble Supreme Court in a case, Nitin Construction Pvt. Ltd. Vs. Union Of India & ors. 2002(II)CPJ 4 (SC) and also in several other cases by the Hon'ble National Commission.
For the reasons aforesaid, the complaint is rejected being not maintainable.
However, this order will not debar the complainant to approach the appropriate Forum / Court in accordance with law.
to approach the appropriate Forum / Court in accordance with law. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER