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Dr. Subrata Kumar Bose v/s M/s. Skylark Construction & Others

    Complaint Case No. 148 of 2012

    Decided On, 17 July 2015

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT & THE HONOURABLE MR. TARAPADA GANGOPADHYAY MEMBER

    For the Complainant: Lipabeethi Basak, Advocate. For the Opposite Party: Amit Kumar Biswas, Advocate.



Judgment Text

Tarapada Gangopadhyay, Member

The present complaint u/s 17(1)(a)(i) of the Consumer Protection Act, 1986 has been filed by the Complainant alleging deficiency in service on the part of the OP No. 1-Developer and also on the part of the OP Nos. 2 & 3-Landowners in respect of handing over the possession as well as completion of execution and registration of the Deed of Conveyance in respect of the ‘shop’ as per terms and conditions of the Agreement for Sale dated 20.6.2004.

Facts of the case, as emerging from the materials on records, are, in brief, that the Complainant entered into an Agreement for Sale on 20.6.2004 with the OP No. 1-Developer on the basis of a Development Agreement dt. 22.8.2003 with the predecessor-in-interest of the OP Nos. 2 & 3 and on the basis of a notarized Power of Attorney in favour of the OP No. 1-Developer for purchase of ‘Shop No. 3’ of 1250 sq. ft. super built-up area on the first floor of the constructed building for a total consideration of Rs. 25,00,000/-, and accordingly, the Complainant paid the entire consideration against receipts dated 20.6.2004 and 24.6.2004. After execution of the Agreement for Sale in question the predecessor-in-interest of the OP Nos. 2 & 3 died leaving behind the OP Nos. 2 & 3-Landowners being his wife and daughter respectively as the legal heirs. Upon such demise of the predecessor-in-interest of the land concerned the OP No. 1-Developer slowed down the construction work of the shop in question allegedly for a dispute between the OP No. 1-Developer and the OP Nos. 2 & 3-Landowners. It is further alleged in the Petition of Complaint that despite payment of the consideration in full in respect of the booked ‘shop’, the OP No. 1-Developer neither handed over the possession of the shop in question nor did complete the execution and registration thereof. Then the Complainant filed the instant complaint before this Commission praying for possession, execution and registration of the shop in question as well as compensation of Rs. 1,00,000/- along with direction for completion of the incomplete works in the shop in question.

After filing this Complaint, Notice was duly served upon the OP No. 1 by Speed Post and upon the OP Nos. 2 & 3 by publication of the Notices in the ‘Aajkal’, Kolkata dated 11.7.2013, as appearing from the Order No. 4 dt. 26.7.2013 of the Complaint as available on records. In response to the Notices served, only the OP No. 1-Developer entered its appearance through Ld. Advocate, but none appeared on behalf of the OP Nos. 2 & 3-Successors-Landowners.

However, the case is being taken up for disposal on the basis of the submission of the Ld. Advocate for the Complainant and the OP No. 1-Developer and also on the basis of the materials available on records.

The Ld. Advocate for the Complainant repeats and reiterates the pleadings in the Petition of Complaint, particularly emphasizing the fact that no possession, execution and registration of the shop in question was completed by the OP No. 1-Developer in breach of the contractual obligation arising out the Agreement for Sale in question with the OP No. 1-Developer despite the consideration money being paid in full, and such failure on the part of the OP No. 1-Developer in respect of handing over the possession as well as execution and registration of the Deed of Conveyance, constitutes deficiency in service. The Ld. Advocate also submits that the Complainant being a bonafide purchaser should not be made to suffer from for dispute, if any, between the OP No. 1-Developer and the OP Nos. 2 &3-Landowners.

The Ld. Advocate finally submits that in view of the submission so put forward the instant Complaint should be allowed and the reliefs as prayed for be provided with.

On the other hand, the Ld. Advocate for the OP No. 1-Developer submits that as the Power of Attorney ceases to exist now because of the death of the predecessor-in-interest of the land and as the OP Nos. 2 & 3-Successors-Landowners are not cooperating with him, the OP No. 1-Developer is unable to handover the possession and complete the execution and registration of the shop in question although the OP No. 1-Developer is always ready to execute and register the shop only in respect of his own share.

The Ld. Advocate also submits that, alternatively, the execution and registration of the shop in question may be done through the machinery of this Commission.

We have heard both the sides present and perused the materials on records.

The Agreement for Sale dated 20.6.2004, as available on records, demonstrates that the Complainant entered into an Agreement for Sale in question with the OPs for purchase of a shop at ‘Paramita Plaza’ at 2, Babutala Road, Nagterbazar, Kolkata-700 028. The Petition of Complaint further demonstrates that the Complainant being a doctor intended to purchase the said shop for using the same as a ‘chamber-cum-medicine shop-room’ (Running Page-4 of Petition of Complaint). It is also revealed from the Petition of Complaint that nowhere in the Petition of Complaint is there any averment by the Complainant to the effect that the shop in question is meant exclusively for earning livelihood of the Complainant by means of self-employment.

From the averment in the Petition of Complaint, which reads '….for the purpose of purchasing a chamber-cum-medicine shop room, the Complainant being a medical practitioner entered into an Agreement for Sale on 20.6.2004 with the above-named OP No. 1 being the Developer…' , what appears to be indicative is that the said transaction for purchase of a ‘chamber-cum-medicine shop’ was meant for commercial purpose as is indicated from the inherent connotation of the phraseology ‘chamber-cum-medicine shop room’ used in the Petition of Complaint. The ‘commercial purpose’ is further reinforced by the use of the words ‘medicine shop room’ in the Petition of Complaint, indicating thereby the commercial transaction.

In consideration of the

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above discussion and evidence on records we are of the view that the Complainant does not fall within the definition of Consumer as laid down u/s 2(1)(d) of the Consumer Protection Act, 1986. Thus, the Consumer Protection Act, 1986 does not confer any jurisdiction upon this Consumer Commission in respect of the complaint where the Complainant does not fall within the definition of Consumer under the said Act. In such view of the case, we refrain ourselves from expressing our views on other issues involved in the case. In the result, the instant Complaint being not maintainable is liable to be dismissed and stands dismissed accordingly. No order as to costs.
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