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Arijit De v/s M/s. Amarnath Construction & Others

    First Appeal No. 109 of 2022
    Decided On, 14 July 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 Appellant: Debanjan Banerjee, Advocate. For the Respondents: None appears.


Judgment Text
Manojit Mandal, President

This appeal has been filed by the Appellant /Complainant against the impugned order No. 8 dated 26/04/2022 passed by the Learned Consumer Disputes Redressal Commission, Kolkata –I (North) (in short ‘District Commission’) in complaint case No. CC 199 of 2021. By the impugned order the Learned District Commission has dismissed the complaint filed by the complainant.

The appellant / complainant filed one complaint case before the Learned District Commission praying for passing an order directing on the Opposite parties to effect execution and registration of the deed of conveyance in respect of car parking space on the ground floor of the premises No. 38/5, Bagbazar street, Police Station Shyampukur, Kolkata – 700 003 for parking a medium sized private car thereon and also praying for passing an order directing the opposite parties to pay compensation of Rs.5,00,000/- (Rupees five lakh) only to the complainant for harassment, inordinate delay and for passing an order directing the opposite parties to pay Rs.1,00,000/- (Rupees one lakh) only towards cost of litigation.

The opposite parties No. 1 & 2 entered appearance in this case and filed written version along with an application challenging the maintainability of the complaint.

The Learned District Commission heard the said maintainability application at first and dismissed the complaint case vide impugned order No. 8 dated 26/04/2022.

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

It is submitted by the Learned Advocate appearing for the appellant that impugned order is erroneous in facts and in law. It is further submitted that the maintainability application filed by the opposite parties No. 1 & 2 / respondents is not maintainable either in law or in fact and the grounds of non maintainability stated therein are completely baseless, frivolous and arbitrarily manufactured to mislead the Learned Commission below. It is further submitted that in fact the averment of the developers that the agreement for sale of car parking space does not include element on housing construction is not correct.

It is further submitted that complaint is very much maintainable and the appellant / complainant entered into an agreement for purchase of one car parking space on the ground floor of the said building. Therefore, the complainant is a consumer within the meaning of section 2(7) of the Consumer Protection Act, 2019. The impugned order No. 8 dated 26/04/2022 is bad in law. So, it should be set aside.

We have heard the Learned Counsel appearing for the appellant / complainant and perused the memo of appeal and the impugned order. The appellant has filed the copy of deed of sale executed between the parties. Copy of deed of agreement for sale discloses that M/s. Amarnath Construction opposite party No. 1 & 2 and Respondent No. 1 & 2 entered into an agreement for sale of one car parking space on the ground floor of the premises No. 38/5, Bagbazar street, Police Station Shyampukur, Kolkata – 700 003 at a consideration of Rs.82,000/- (Rupees eighty two thousand) only.

It appears from the petition of complaint that respondents handed over physical and vacant possession of the said car parking space and the complainant is in actual physical possession of the same. It appears from the complaint that the complainant has mutated his name in respect of the said car parking space in his name and he is paying taxes to the Kolkata Municipal Corporation.

From bare perusal of the said deed of agreement for sale also appears that at the time of said agreement for sale complainant /appellant paid Rs.40,000/- (Rupees forty thousand) only to the vendor as advance. Therefore, on perusal of the said copy of agreement for sale it appears that the transactions is a simplicitor sale transaction.

In Ganeshlal Vs. Shaym 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 parties related to purchase of agricultural 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 copy of agreement for sale executed between the parties, it appears that the transactions between the parties is simplicitor sale transaction. Therefore, the appellant is not

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a consumer 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. 8 dated 26/04/2022 passed by the Learned District Commission 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. 8 dated 26/04/2022 passed by the Learned District Commission is confirmed. No order as to the costs of this Appeal. The Appeal is thus disposed of accordingly.
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