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Ashok Kumar Khatri & Another v/s ABS Land Development & Construction Pvt. Ltd. & Others

    Complaint Case No. CC/573/2019

    Decided On, 06 December 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Complainant: Saibal Guha Roy, Advocate. For the Opp. Party: --------------



Judgment Text


Samaresh Prasad Chowdhury, Presiding Member

The instant complaint under Section 17 (wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of a father and son respectively against a company and its Directors on the allegation of deficiency of services for non-execution of sale deed in respect of a piece of land measuring about 14,400 sq. ft. equivalent to 20 cottahs identified as plot No. RD- 137 in Baruipur enclave lying and situated at Dag No. 137, Khatian No. 262, J.L. No. 154, Mouza- Pirkhali, P.S.- Bishnupur, Dist- South 24 Parganas within the local limits of Julpia Gram Panchayat.

In nutshell, complainants’ case is that on 25.01.2013 they entered into an agreement with the Opposite Party No. 1 Company to purchase the plot in question at a total consideration of Rs. 56,00,000/-. The complainants have already paid Rs. 33,60,000/- as part consideration amount towards the said total consideration amount. As per terms of the agreement the OP No. 1 Company was under obligation to execute the sale deed within 31.07.2017. However, the Opposite Parties have failed to keep their promise. The complainants have stated that they are ready and willing to pay the balance consideration amount and to get the deed executed in favour of them but all their requests and persuasions in this regard went in vain. Hence, the complainants have approached this commission with prayer for following reliefs, viz.- (a) an order directing the Opposite Parties to refund the entire sum of Rs. 33,60,000/- only. In case the O.P’s are unable to refund the money, they may be directed to provide the Complainants with land/building of equal value and stamp duty and registration charges be paid by the O.P’s; (b) an order directing the Opposite Parties to pay interest at bank fixed deposit rate alongwith interest @ 10% per annum from 31.07.2013 to the date of refund; (c) an order directing the Opposite Parties to pay a sum of Rs. 50,000/- towards the physical strain and mental agony and financial loss suffered by the complainants; (d) an order directing the Opposite Parties to pay Rs. 5,000/- towards cost etc.

The notice issued upon Opposite Party No. 3, one of the Directors had been duly served. The notice upon OP No. 1 company and OP No. 2, another Director of OP No. 1 Company have returned with postal endorsement ‘unclaimed’ which amounts to good services. The name of OP No. 4 has been strike off from the cause title of petition of complaint. The fact remains that the OP Nos. 1 to 3 have neither appeared nor filed written version. Under compulsion, the complaint was heard ex parte.

On the prayer of complainants, the contents of petition of complaint supported by affidavit and the documents annexed therewith were treated as evidence on the part of complainants.

Heard the Ld. Advocate for the complainants. Considered.

The materials on record indicate that on 25.01.2013 the complainant had entered into an agreement with Opposite Party No. 1 company represented by OP No. 2 to purchase of a piece of land measuring about 14,400/- sq. ft. equivalent to 20 cottahs (approx) being plot No. RD-137, demarcated in the master plan of ‘Baruipur enclave’ lying and situated at plot No. 137, Khatian No. 262, J.L. No. 154, Mouza-Pirkhali, P.S.- Bishnupur, Dist- South 24 Parganas within the local limits of Julpia Gram Panchayat at a total consideration of Rs. 56,00,000/-. The overwhelming evidence on record make it quite clear that the complainants have paid Rs. 33,60,000/- as part consideration amount towards the said total consideration amount. As per terms of the agreement, the OP No. 1 company was under obligation to execute the deed of conveyance in respect of plot in question within 31.07.2013. In fact, the complainants are ready and willing to pay the balance consideration amount and to get the deed executed and registered in favour of them for which they have made correspondences with the OP No. 1 company. In this regard, the letter given by the complainants dated 16.02.2019 appears to be relevant which was duly received by OP No. 2 on behalf of OP No. 1 company. By the said letter, the complainants have shown their intention/interests to get the deed executed in favour of them on payment of balance amount of Rs. 22,40,000/-. However, all the requests and persuasions made by the complainants remain unheeded. This apparently shows negligence or deficiency on the part of Opposite Parties.

However, the question arises as to whether the complainants will be categorised as ‘consumer’ within the meaning of Section 2(1)(d) of the Act. From the agreement for sale dated 25.01.2013 it would reveal that the complainants were offering a developed plot. In this regard, the decision of the Hon’ble Supreme Court in Civil Appeal No. 331 of 2007 (Ganeshlal –vs- Shyam) decided on 26th September, 2013 appears to be noteworthy which reproduces below:

“5. Learned Counsel submits that a sale of plot of land simpliciter cannot lead to a complaint to the District Consumer Forum or to the State or National Consumer Disputes Redressal Commission. The jurisdiction of the District Consumer Forum under Section 11 of the Act is to entertain a complaint and as seen above, complaint is defined in a particular manner, and primarily it is with respect to the deficiency in making available the goods and services. The terms “deficiency” is also defined under Section 2(1)(g) of the Act which reads as follows:

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

The foregoing observations of the Apex Court make it abundantly clear that failure to handover possession of the plot of land sim

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pliciter cannot come within the jurisdiction of a Forum constituted under the Act. Where a sale of plot of land simpliciter is concerned and if there is any complaint, the same would not be covered under the Act. In view of the above, the complaint is rejected being not maintainable under the purview of the Act. However, this order will not debar the complainants to approach the appropriate Court/Forum in accordance with law and in the process in order to overcome the hurdle of limitation, they may seek assistance of the decision of the Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works –vs- PSG Industrial Institute).
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