w w w . L a w y e r S e r v i c e s . i n



Pradip Kumar Mandal & Another v/s Prop./Manager M/s. Bengal Construction Co. & Another

    First Appeal No. 1112 of 2013 in Complaint No. 459 of 2012

    Decided On, 31 March 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. MRIDULA ROY
    By, MEMBER

    For the Appellants: Souvik Das, Advocate. For the Respondents: None Appears.



Judgment Text

The instant appeal U/s. 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act ') is at the instance of the Complainants to impeach the order No. 8 dated 12th June, 2013 passed by the Ld. Kolkata District Consumer Disputes Redressal Forum, Unit – 1, (for short, Ld. District Forum) in consumer complaint No. 459 of 2012 whereby the consumer complaint initiated by the Appellants U/s. 12 of the Act was dismissed on the ground it was barred by law.

The Appellants being Complainants lodged the complaint stating that the Respondent No. 1 is a sole proprietorship firm represented by this sole proprietor, i.e. the Respondent No.2. The Respondent No. 1 being developer offered a flat measuring about 777 sq. feet on the 2nd floor at Premises No. T-55A/2/1, Deshpran Sashmal Road, P.S. Charu Market, Kolkata – 700 033 on a lease of 99 years at a sum of

Rs. 3,78,000/- only to be paid by the Lessee to the developer by way of advance rent. The Appellants had paid Rs. 2,51, 640/- . However, in accordance with the said terms of agreement the Respondent No.1 did not hand over the flat in question and in this regard the notice given by the Appellants through their Advocate dated 30.01.2008 yielded no result. Hence, the consumer complaint with the prayer for reliefs like - (a) to direct the Opposite Parties /Respondents to complete the building immediately and to handover the flat in question without any further delay; (b) to bear the extra cost of registration; (c) to refund the money with interest; (d) to pay the compensation of Rs. 5,00,000/- and (e) to pay the litigation cost of Rs. 10,000/-, etc.

We have considered the submission advanced by the Ld. Advocate appearing for the Appellants and also perused the materials on record including the brief notes of arguments filed on behalf of the Appellants. Like the proceedings before the Ld. District Forum the Respondents also remain unrepresented in this appeal.

Having heard the Ld. Advocate for the Appellants and on going through materials on record it reveals that the Respondent No.2 is the sole proprietor of Respondent No. 1/developer. The Respondent No.1 undertook to construct a multi-storeyed building at Premises No. T-55A/2/1, Deshpran Sashmal Road, P.S. Charu Market, Kolkata – 700 033 on the basis of the Plan sanctioned by the Kolkata Municipal Corporation after obtaining permission from the Thika Controller. It also remains undisputed that the Appellants had entered into an agreement with the Respondents for taking lease of a flat measuring about 777 sq. feet on the 2nd floor of the said Premises on 06.01.2002 for 99 years.

The Ld. District Forum has observed that as the property in question is a thika tenanted property and further the Complainants had entered into an agreement on lease, Complainants cannot be considered as a 'Consumer' as defined under the provisions of Section 2(1)(d) of the Act.

Ld. Advocate appearing for the Appellant has submitted that when after obtaining permission from the Thika Controller the Respondents started construction of the building and entered into a Lease Agreement with the Appellants, the Appellants at least entitled to refund of money already paid to the Respondent No.1. He has further submitted that the Act is a benevolent legislation and the whole purpose of the Act is to give social justice to the Complainants/litigants against the wrong doer of the service provider. In support of his submission, Ld. Advocate for the Appellant has placed reliance to a decision reported in 2013 (4) CPR 129 (NC) (Mahindra & Mahindra Ltd. – Vs. – Shri Chandan Mondal & Ors.)

Needless to say, in order to attract the provisions of the Act one has to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Act which runs as follows :

'Consumer' means any person who, -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods her than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation – For the purpose of this clause, 'commercial purpose' does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment'.

After giving due consideration to the submission of the Ld. Advocate for the Appellants and having a look to the materials on record it appears to us that the Appellants had entered into an agreement with the Respondents for lease for 99 years in respect of the flat in question lying and situated at Premises No. T-55A/2/1, Deshpran Sashmal Road, P.S. Charu Market, Kolkata – 700 033 The said property was a thika tenanted property. In such a situation, obtaining permission from the Thika Controller by itself cannot remove the apparent defect from the side of the Appellants. The Appellants cannot be termed as 'Consumer' within the meaning of Section 2 (1)(d) of the Act. The Ld. District Forum did not commit any mistake in arriving at a decision, particularly when the Complaint himself in his petition of complaint averred that the scheduled property was a thika tenancy property. In that view of the matter, the rights and contention of the Appellants would not be governed under the provisions of the

Please Login To View The Full Judgment!

Act. The Ld. District Forum has rightly observed that if the Complainants so chooses, they may agitate the issue before the proper forum on the self-same cause of action. In that perspective, we do not find any shortcoming or loopholes in the order impugned which requires interference by this Appellate Forum. In other wards, the appeal being devoid of merit should be dismissed. However, considering the facts and circumstances, there will be no order as to costs. Consequently, appeal is dismissed without any order as to costs. The order No. 8 dated 12th June, 2013 passed by the Ld. District Forum in consumer complainant No. 459 of 2012 is hereby affirmed.
O R