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Amalendu Jana v/s M/s. Brick-Box Constructions Pvt. Ltd.

    First Appeal No. 1022 of 2017

    Decided On, 19 May 2022

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE MANOJIT MANDAL
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER

    For the Appearing Parties: -------------



Judgment Text

Manojit Mandal, President

This appeal is directed against the order being No. 3, dated 22.08.2017, passed by the Ld. District Forum, Kolkata, Unit – III, in Complaint Case No. 472 of 2017. By the impugned order the Ld. District Forum has dismissed the complaint filed by the complainant.

The appellant/complainant filed one complaint case before the Ld. District Forum praying for passing an order to direct the opposite party to hand over the possession of the covered car parking space and also praying direction to the opposite party to pay interest @ 18% per annum against consideration of Rs. 1,00,000/- (Rupees one lakh) only already paid by the complainant for default in giving possession and also praying for passing order to direct the opposite party to pay compensation of Rs. 2,00,000/- (Rupees two lakh) only, for harassment and mental agony and cost of litigation of Rs. 50,000/- (Rupees fifty thousand) only.

The Ld. District Forum heard the case on the point of admission and dismissed the complaint case vide impugned order being No. 3 dated 22.08.2017.

Being aggrieved by the said order of dismissal the appellant/complainant has preferred this appeal.

It is submitted by the Ld. Advocate appearing for the appellant that impugned order being No. 3 dated 22.08.2017 is not proper and according to law. He further submitted that the Ld. District Forum committed wrong by dismissing the complaint at the admission stage without hearing the opposite party and without giving opportunity to the complainant to prove his case by adducing evidence. He further submitted that this dispute, is well covered under the provision of Consumer Protection Act, 1986. He further submitted that Ld. District Forum ought to admit this complaint and dismissal order cannot be sustained and is liable to be set aside. So, the Ld. Advocate for the appellant has prayed for passing an order to set aside impugned order.

On the other hand, the Ld. Advocate appearing for the respondent submitted that the Ld. Forum has acted rightly and within the jurisdiction vested it in the Act. He further submitted that the Ld. Forum has duly applied its judicial mind basing on the materials on record while passing the impugned order. Therefore, impugned order should be confirmed. The instant appeal should be dismissed.

We have heard the Ld. Counsels appearing for the appellant and the respondent and have perused the Memo Appeal and the impugned order.

The appellant has filed the copy of deed of conveyance dated 16.03.2016 executed between the parties. Copy of said deed of conveyance dated 16.03.2016 discloses that the respondent/opposite party sold away one car parking space being No. 01 measuring about 125 Sq.ft. more or less on the ground floor of the new building situated at premises No. 94, Purbachal, Kalitala Road, P.S. – Kasba, Kolkata at a consideration of Rs. 1,00,000/- (Rupees one lakh) only and he executed and registered deed of conveyance on 16.03.2016 in favour of complainant/appellant. It also appears from the said deed of conveyance dated 16.03.2016 that the respondent handed over the possession of the said car parking space to appellant/complainant. The appellant/complainant took possession of the said car parking space.

From bare perusal of the said deed of conveyance dated 16.03.2016, it also appears that prior to registration of the said deed of conveyance, full consideration amount i.e. Rs. 1,00,000/- was paid by the appellant/complainant to the respondent. Therefore, on perusal of the said deed of conveyance it appears that the transaction is a simplicitor sale transaction.

In Ganeshlal Vs. Shyam reported in (2014) 14 SCC 773, Hon’ble Supreme Court has observed that:-

“Where a sale of plot of land simplicitor is concerned, and if there is any complaint, the same would not be covered under the Consumer Protection Act.”

In Brig. Davinder Singh Grewal and Anr. –Vs- R.S. Real Estate and Anr. reported in Volume III (2017) CPJ 304 (NC) Hon’ble National Commission has observed thus :

“In the instant case, it is manifestly clear that the agreement entered between the partie related to purchase of argicultural land, for which payment was made by the complainants to the OP sellers and a registered agreement as well as sale-deed were also executed. The OPs were supposed to provide a pucca passage to the said land and to deliver the possession after 42 months of the agreement. It is clear that the said activity does not fall under any item in the definition of ‘service’ as per Section 2(0) of the Act.”

In view of the above decisions and looking to the contents of the deed of conveyance dated 16.03.2016 executed between the parties, it appears that the transactions between the parties is simplicitor sale transaction. Therefore, the appellant is not a consumer

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U/s 2(7) and O.P. is not service provider U/s 2(6) and 2(42) of the Consumer Protection Act, 2019. Therefore, the impugned order No. 3 dated 22.08.2017 passed by the Ld. District Forum is legal and valid and is sustainable in the eye of law and the said order is liable to be affirmed. Hence, the appeal filed by the appellant is dismissed and the impugned order No. 3 dated 22.08.2017 passed by the Ld. District Forum is confirmed. No order as to the costs of this Appeal. The Appeal is thus disposed of accordingly.
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