Dt. of filing – 04/11/2016
Dt. of Judgement – 18/11/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainants namely 1) Sri Provat Kiron Basu 1(a) Samita Bose 1(b) Smt. Sarbari Guha Roy and 2) Prasanta Bose under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party namely M/s. Mayank Multiplex Private Limited alleging deficiency in service on its part.
Case of the Complainant in short is that their predecessor-in-interest namely Shyamali Bose was a tenant in respect of premises no.1, Andul Raj Road under Tollygunge P.S. Kolkata and the joint owners of the premises were Smt. Latika Mitra and Sri Amitava Mitra. Said Shyamali Bose was a tenant in respect of a shop room measuring about 149 Sq ft built up area in the ground floor. The joint owners subsequently sold the property including shop room to the Opposite Party. So, Shyamali Bose since deceased became the monthly tenant under the Opposite Party and paid rent to the Opposite Party in respect of the shop room. Opposite Party since intended to construct the new building, by an agreement dated 20/3/2008 which was also registered, said Shyamali Bose (since deceased) purchased the shop room in dispute in this case at a total consideration of Rs.1,04,300/-. She paid a sum of Rs.1,100/- by cheque dated 20/3/2018 and thereafter further paid Rs.20,000/- by cheque dated 18/1/2010. She further paid a sum of Rs.83,200/- by cheque dated 14/12/2011. So the entire consideration amount was paid by the Shyamali Bose during her lifetime. Complainant was provided a temporary accommodation on 23/3/2008 which was surrendered by them on 29/1/2012. Opposite Party has delivered the possession of the property in dispute in favour of the Complainants on 15/12/2011. But has not executed and registered the Deed of Conveyance in respect of the said shop room. As per agreement for sale dated 20/3/2008 Complainants are also entitled to the damages to the tune of Rs.1,000/- per day as the possession was not delivered within the stipulated time frame. Inspite of repeated request Opposite Party did not execute and register the Deed of Conveyance. A demand notice was sent. But all in vain. So ultimately present complaint has been filed praying for directing the Opposite Party to complete the execution and registration of Deed of Conveyance in respect of the shop room, to pay sum of Rs.30,000/- as litigation cost, to pay sum of Rs.1,00,000/- as compensation, to pay sum of Rs.2,00,000/- towards escalation of stamp duty and registration fee and to pay sum of Rs.2,39,000/- as compensation for delayed delivery of possession.
Complainant has annexed with the complaint petition, copy of agreement dated 20/3/2007 entered into between Shyamali Bose (since deceased) and the Opposite Party, Death Certificate, copy of the declaration made by the original Complainants namely Pravat Kiran Basu (since deceased) and Prasanta Bose, declaration by Complainants Sarbari Guha Roy and Samita Bose, copy of letters dated 10/6/2013 sent by Opposite Party, copy of letter sent by Complainants to the Opposite Party on 7/5/2013, dated 24/6/2016, dated 16/7/2016 and dated 5/8/2016.
Opposite Party has contested the case contending specifically that the Complainants are not the consumer under the provision of Consumer Protection Act as they are running business of furniture in the shop room in the name and style of “Ghosh Furniture”. So Opposite Party prays for dismissal of the complaint.
During the course of evidence both parties filed their respective evidence followed by questionnaire and reply thereto and ultimately argument has been advanced by both the parties.
Ld. Advocate appearing for the Complainants have argued that it is the facts and circumstances in each case which determines whether the business is being carried out for the purpose of self-employment. He has cited the case law reported in 2016 (3) CPR 323(SC).
On the other hand Ld. Advocate appearing for the Opposite Party has argued that it is no where stated in the complaint that the said shop room is used by the Complainants to earn their livelihood by means of self-employment and in the absence of the same as the shop room is for commercial purpose, Complainants are not the consumer under the definition of Consumer Protection Act. Ld. Advocate appearing for the Opposite Party has also relied upon case law reported in 2015(2) CPR 160(NC).
So the following points require determination:-
- Whether the Complainants are consumer under the provision of Consumer Protection Act?
- Whether there has been deficiency in service on the part of the Opposite Party?
- Whether the Complainants are entitled to the relief as prayed for?
Decision with reasons
Point No.1
At the very outset it may be pertinent to point out that initially complaint was filed by Provat Kiran Basu and Prasanta Bose being husband and the son of Shyamali Bose (since deceased) who allegedly was a tenant under the Opposite Party and entered into agreement with the Opposite Party. Two daughters of said Shyamali Bose (since deceased) were not made party and it was claimed that they had made separate declaration surrendering their right in the property in dispute in favour of original Complainants namely Provat Kiran Basu and Prasanta Bose. However, during the pendency of the case Provat Kiran Basu died and after his death two daughters have been substituted along with Prasanta Bose the son.
Apparently the service was hired by the said Shyamali Bose the predecessor-in-interest of the Complainants in respect of a shop room and it is the admitted fact that the possession of the shop room has been delivered to the Complainants. There cannot be any denial and dispute that the shop room is used for the purpose of running business and so for commercial purpose. Therefore, the Complainants have to establish that the said shop room was for the purpose of earning livelihood by means of self employment. But the Complainants did not state anywhere in the original complaint that the business was run in the shop room to earn their livelihood by means of self employment. After the written version was filed by the Opposite Party challenging that the Complainants are not a consumer as the business in the shop room was for commercial purpose, Complainants by filing a petition for amendment tried to insert the said fact. Said petition for amendment was heard by the Forum and was disposed of vide order dated 3/4/2017 rejecting the petition. Against the said order, Complainants preferred revision before the Hon’ble State Commission and the Hon’ble State Commission by its order dated 10/5/2018 rejected the said revision petition filed by the Complainants with the following observation:
“In the case beforehand, the revisionists did not mention whether they intended to purchase the shop room for earning their livelihood by means of self-employment. Even in the application for amendment the revisionist did not mention that they intended to purchase the shop to rent it by means of self-employment. In order to avail shelter to explanation to Section 2 (1)(d)(ii) of the Act it is required to establish that they availed of the services exclusively for earning livelihood by way self-employment. A mere statement to run the business exclusively for earning livelihood is not sufficient unless it is stated that such service exclusively was done for earning livelihood by way of self-employment. In such a situation, the referred decisions do not come to any help to the revisionists/Complainants to overcome the situation”.
Hon’ble State Commission found no merit in the revision warranting any interference in the order passed by this Forum and thus the revision was dismissed. So there is absolutely no recital in the complaint that the Complainants purchased the shop room to earn their livelihood by means of self-employment in order to bring the case within the explanation provided under Section 2(1)(d)(ii) of the Act. Complainants have not challenged the said order passed by the Hon’ble State Commission before any higher Forum. So the order passed by this Forum and affirmed by the Hon’ble State Commission, reached its finality. In such a situation in the absence of any recital that the Complainants purchased the shop room for the purpose of earning their livelihood by means of self-employment, apparently as the shop room is used for the commercial purpose, Complainants cannot be consumer under the provision of Consumer Protection Act.
So far as the case law cited by the Ld. Advocate appearing for the Complainants reported in 2016(3) CPR 323 (SC), in the given facts and situation of this case, same is not applicable. The property in dispute in that case were flats and it was alleged that the Complainants therein being the owner was selling the flats to gain profits and thus was not a consumer as they were using it for commercial purpose. But in this case, nature of the property in dispute itself is a shop room which can only be used for the commercial purpose. So Complainants has to establish that the shop room was to earn their livelihood by means of self-employment and not for gaining profits.
As there is specific order of the Hon’ble State Commission rejecting the claim of the Complainants for amendment that the shop room was for earning their livelihood by means of self-employment, the contention of the Complainants that on the basis of the facts and situation of the case, it has to be gathered whether it is used for commercial purpose or to earn livelihood, cannot be accepted. If it is done than the same will in effect be interfering with the order passed by the Hon’ble State Commission which is against the principle of judicial discipline.
Thus in view of the discussions as highlighted above as the Complainants have failed to establish that they are consumer under the provision of Consumer Protection Act, complaint is liable to be dismissed being not maintainable.
Point No. 2 & 3
In view of the discussions highlighted in the Point no.1 as the complaint is not maintainable we do not intend to enter into discussion on these points as they become redundant.
Hence,
ORDERED
CC/519/2016 is dismissed on contest.
