State Consumer Disputes Redressal Commission
Smt. Apsara Das vs Sri Swapan Kumar Chatterjee on 27 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/716/2015 (Arisen out of Order Dated 05/06/2015 in Case No. CC/532/2014 of District North 24 Parganas) 1. Smt. Apsara Das W/o Sri Subal Das, X/o Tapas Kumar Palodhi, Rishi Arobinda Sarani, RB Road(4th Lane), P.S. & P.O. - Nimta, Kolkata -700 049. ...........Appellant(s) Versus 1. Sri Swapan Kumar chatterjee S/o Late Kamal Krishna Chattopadhyay, 137, Rishi Bamkim Road, Shantoneer, Plot 24, P.O. Birati, P.S. Nimta, Dist. North 24 Pgs., Pin - 700 051. ...........Respondent(s) BEFORE: HON'BLE MR. UTPAL KUMAR BHATTACHARYA PRESIDING MEMBER For the Appellant: Mr. Alok Mukhopadhyay , Advocate For the Respondent: Mr. Sadhan Chandra Ganguly, Advocate Dated : 27 Sep 2016 Final Order / Judgement 27.09.2016 MR. UTPAL KUMAR BHATTACHARYA, HON'BLE MEMBER.
Instant Appeal has been filed under Section 15 of the C. P. Act, 1986 by the Appellant/O.P challenging the judgment and order dated 05.06.2015 passed by the Ld. District Forum, North 24 Parganas in complaint Case No. 532/2014 allowing the complaint on contest against the Appellant/O.P. with the directions as under :-
"that the complaint be and the same is allowed on contest against the O.P. O.P. is directed to execute and register the deed of conveyance in favour of the complainant in respect of the disputed property at the cost of the complainant within one month from the date of this order, in default complainant is at liberty to get the said deed of conveyance registered through this Forum.
O.P. is further directed to pay Rs.5,000/- as compensation and Rs.2,000/- as litigation cost to the complainant within one month from the date of this order, failing which the O.P. shall have to pay sum of Rs.200/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.P. in this State Consumer Welfare Fund".
The facts of the case, in a nutshell, are that the Respondent/Complainant entered into a purchase agreement dated 25.03.2011 with the Appellant/O.P. in respect of 2 cottahs of land under the ownership of the Appellant/O.P., details of which have been furnished at the schedule of property at page 7 of the complaint, running page 19, at a consideration of Rs.1,30,000/-.
The Respondent/Complainant paid an amount of Rs.1,10,000/- through two cheques and Rs.20,000/- by cash in course of his making payment to the Appellant/O.P. the entire consideration of Rs.1,30,000/- and since the date of his entering into the agreement for sale the Respondent/Complainant, allegedly, has been in possession of the subject land uninterfered with.
The Appellant/O.P., however, has not executed and registered the plot of land in favour of the Respondent/Complainant in spite of formal communication and verbal request made to her to that effect. The Appellant/O.P., on the contrary, by a letter dated 11.06.2014, issued by the Ld. Advocate on her behalf, claimed an additional amount for the execution and registration of the deed of conveyance.
The draft Deed of Conveyance sent by the Respondent/Complainant by registered post dated 09.07.2014 through Ld. Advocate engaged by him with the request for execution and registration of the Deed of Conveyance within 10 days from the date of receipt of the letter, also went unheeded to by the Appellant/O.P. The Respondent/Complainant, thereafter, being aggrieved, filed the complaint case which the impugned judgment and order relates to.
Heard the Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/O.P. submitted that there was simply agreement for sale of 2 cottahs of 'Sali' class of land. There was no development agreement, nor was there any construction. Since the matter relates to sale of land only, the issue is a sale simpliciter. The Respondent/Complainant, in view of the circumstances narrated above, being not a consumer within the meaning of Section 2(1)(d) of the C. P. Act, 1986, the Ld. District Forum lacked the jurisdiction to adjudicate on the issue.
The Ld. Advocate contended that the stamp paper on which the alleged agreement for sale was executed has not left any indication as to the purchaser of the stamp paper. In fact, as the Ld. Advocate continued, there was no agreement for sale at all. This was a case of mere lending of money for the treatment of the Appellant/O.P. and the deed of land was kept as mortgaged against the said loan with the Respondent/Complainant.
The Ld. Advocate continued that the Appellant/O.P. has filed a Title Suit bearing No. 304/2014 for redemption of mortgaged debts both under T. P. Act, and Bengal Money Lenders Act, before the 3rd Court of Civil Judge, Junior Division at Sealdah which is yet to be decided. The case, therefore, being civil in nature, is not maintainable from that angle too under the C. P. Act, 1986. The Ld. Advocate prayed for the Appeal to be allowed in the above context setting aside the impugned judgment and order.
Heard the Ld. Advocate appearing on behalf of the Respondent/Complainant who submitted that such property is not only 2 cottahs of land, rather, it involves also a 250 sq. ft. R. T. shade structure erected thereon. Inviting attention to the letter of the Ld. Advocate on behalf of the Appellant/O.P. addressed to the Respondent/Complainant, the Ld. Advocate submitted that there was no contention about the subject land being kept under mortgage to the Respondent/Complainant. It, rather, revealed that the transaction in question was related to the selling of the subject land. It also indicated that the Appellant/O.P. impressed upon execution and registration of the Deed of Conveyance on payment of balance consideration when, in fact, there was no balance consideration to be paid. Referring to the purchase agreement dated 25.03.2011, the Ld. Advocate submitted that the Appellant/O.P. confessed therein to the receipt of full consideration from the Respondent/Complainant. That there was no balance consideration to be paid was clearly elaborated by the Ld. Advocate for the Respondent/Complainant in his letter dated 18.06.2014 in response to the above letter of the Appellant/O.P., running page 25 to 26.
The Ld. Advocate maintained that the Appellant/O.P. refused to execute and register the Deed of Conveyance even after receipt of the full consideration and has, therefore, committed gross deficiency in service putting the Respondent/Complainant in acute mental agony.
The Ld. Advocate continued that the Ld. District Forum has properly appreciated the case and passed the justified order which is needed to be affirmed dismissing the instant Appeal.
In order to examine the papers relating to the instant complaint, the LCR was called for from the Ld. District Forum. Perused the papers on record and also perused the papers in the LCR. It appears that the issue relates to the selling of a plot of land. We did not find any development agreement in the record, nor did the records provide us with any intimation as to any construction on the subject land.
The issue, in the light of the above, relates to simple sale of land and is, therefore, a sale simpliciter. The Respondent/Complainant's contention about the existence of a structure on the subject land does not, ipso facto, change the nature of the transaction as sale simpliciter as, there was no fresh construction and the 250 sq. ft. R. T. shade structure was standing on the land in question at the time of purchase as it appears from the Complainant's averment at para 2 of the complaint at page 1, running page 13.
The Respondent/Complainant, in view of the above, does not fall within the meaning of consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and the issue is, accordingly, beyond the jurisdiction of the Ld. District Forum to be adjudicated. Since the point of maintainability has been conclusively decided against the Respondent/Complainant, we refrain ourselves from discussing or elaborating on any further point as was raised in the complaint and at the time of argument.
Hence, ordered that the appeal is allowed. The impugned judgment and order is set aside and consequently the complaint is dismissed being not maintainable. No order as to cost.
The LCR be returned immediately. [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] PRESIDING MEMBER