BECHU RAM CHAKRABORTY Vs. MAHESH SHAW

JUDGEMENT

(1.) This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 10.10.2013, passed by the West Bengal State Consumer Disputes Redressal Commission (for short 'the State Commission') in FA No. 747/2012, "Bechuram Chakraborty versus Mahesh Shaw", vide which while dismissing the appeal, the order dated 28.06.2012, passed by the District Consumer Disputes Redressal Forum, Kolkata in case No. 338/2010, allowing the consumer complaint in question, was upheld.

(2.) Brief facts of the case are that the complainant/respondent entered into an agreement on 29.09.2009 with the petitioner/OP for purchasing a flat at a consideration of Rs. 13 lakh, out of which he paid Rs. 1 lakh as earnest money at the time of execution of agreement. The petitioner/OP is the landowner and developer of the proposed building, situated at premises no. 22B, Paddapukur Square, Kidderpore, Police Station Watgunge, Kolkata 700023. As per the complainant, the flat having built-up area of 800 sq. ft., consisting of two bedrooms, one dining and drawing room, one kitchen and one bath together with balcony and facilities like sewerage, water supply, electricity etc. was to be sold by the OP to the complainant. The balance amount of Rs. 12 lakh was to be paid by the purchaser on or before the execution and registration of sale-deed which was to be held within three months from the date of execution of the said agreement. However, the OP failed to honour their commitment of providing the property within the stipulated period and asked the complainant to wait for another two months. The complainant sent a legal notice dated 28.07.2010 to the OP, asking them to hand over the possession of the flat and to execute the registration deed, but the OP sent reply to the notice on 19.08.2010, saying that the said agreement dated 29.09.09 had been cancelled. The complainant then filed the consumer complaint in question before the District Forum. In their written reply to the complaint filed before the District Forum, the petitioner/OP stated that the complaint was not maintainable, because it was not a consumer dispute. The OP was not a service provider under the agreement. The complainant had not been able to make payment within the stipulated time. The District Forum after taking into account, the evidence of the parties allowed the complaint and directed the OP to execute the registered deed of conveyance, together with delivery of possession and getting completion certificate and also to pay compensation of Rs. 20,000/- for mental harassment and Rs. 5000/- as cost of litigation. The complainant was also directed to pay the balance amount on the date of registration. An appeal was filed before the State Commission against this order by the petitioner/OP which was dismissed vide impugned order. It is against this order that the present petition has been made.

(3.) At the time of arguments, the learned counsel for the petitioner vehemently argued that this was a case of 'simplicitor sale' of property only, and no service was required to be provided to the complainant by the petitioner/OP. The provisions of the Consumer Protection Act, 1986 were, therefore, not applicable in this case, rather, it is a case for specific performance, for which the complainant should go to a civil court of competent jurisdiction. The learned counsel stated that there had been no hiring of service on the part of the complainant and hence, the question of any deficiency in providing service on the part of the petitioner/OP does not arise. The learned counsel stated that a perusal of the complaint itself makes it clear that specific performance of the agreement dated 29.09.2009 had been requested, by making direction to the OP to transfer the said flat as per the terms and conditions of the agreement. It has been stated in the complaint itself that the petitioner/OP decided to sell the said property due to urgent need of money and hence, the agreement was entered between the parties. The learned counsel invited attention to an order passed by this Commission in "Municipal Board, Todaraisingh & Anr. versus Gopal Lal Sharma", 2013 4 CPR 474, saying that the cancellation of allotment of plot for non-deposit of the balance amount had been held to be in order as per this order of the State Commission. Further, the West Bengal State Commission in,"Smt. Ramarani Karar versus Sri Sankar Ghosh" [FA/791/2012 decided on 24.03.2014], had also held that when there was agreement for purchase of land without the stipulation for rendering services, it was a case of sale-simplicitor and the complainant could not be stated before a 'consumer'. The learned counsel also referred to judgement passed by the Hon'ble Supreme Court in "U.T. Chandigarh Administration and Anr. versus Amarjeet Singh & Ors.", 2009 4 SCC 660 saying that a consumer forum shall have jurisdiction only when the complaint is against a 'buyer' or 'service-provider'. The learned counsel further argued that the petitioner had not been afforded proper opportunity to lead their evidence. As per order recorded on 12.06.2012 by the District Forum, a copy of the evidence given by the complainant was served to the Advocate for the OP and the arguments were also heard on the same day. The learned counsel has drawn attention to an order of the State Commission in "Mathura Mahto Mistry versus Dr. Bindeshwar Jha & Anr.", 2008 1 CPR 1, in support of his arguments. Further, the District Forum had wrongly concluded that in the present case, the petitioner/OP was a service provider, whereas the complainant had just deposited only 8% of the consideration money with the petitioner/OP.