The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party Nos. 1 to 3 to impeach the judgment/ final order dated 20.07.2018 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short, Ld. District Forum) in Consumer Complaint no. 8/2018. The operative part of the impugned order reproduces below:
That the complaint case be and the same is decreed ex parte against the OPs with a cost of Rs. 5,000/-.
The OPs i.e. the OP Nos. 1 to 5, who will remain jointly and severally liable for making payment to the complainants, are directed to refund Rs. 4,40,000/- i.e. the entire consideration price received by them from the complainants from the date of receipt of each and every instalment with interest @ 12% p.a. till full realisation thereof.
No compensation on account of harassment and mental agony is awarded to the complainants, because the penal interest has been awarded to them.
If the aforesaid money is not paid by the developers/OPs to the complainants within a month of this order, the complainants are at liberty to recover the same by execution of this order through the instrumentality of the Forum.
The respondent Nos. 1 and 2 herein being complainants lodged the complaint before the Ld. District Forum asserting that on 25.04.2013 they entered into an agreement for sale with the Opposite Party No. 1 company to purchase of a piece of land measuring about 4 cottahs being scheme plot No. 4B 112 lying and situated at Mouza-Sangur, P.S.- Sonarpur, Dist- South 24 Parganas together with right to take electric, tap water, telephone connection through over and under 20 ft. wide common passage adjacent to the said plot at a total consideration of Rs. 4,40,000/- i.e. @ 1,10,000/- per cottah. The complainants have stated that they have already paid the entire consideration amount of Rs. 4,40,000/- to the OP No. 1 company on diverse dates by way of instalments and last instalment has been paid on 09.01.2014. The complainants have also stated that as per terms of the agreement, the OP No. 1 company was under obligation to complete the unit and to handover the same within 4 years from the date of signing of the agreement. However, after expiry of the stipulated period and despite payment of entire consideration amount, the complainants noticed that the OP company did not take any step either to execute the sale deed or to deliver possession of the plot in question to them. Then in the month of April, 2014 the OP company proposed the complainant for an alternative plot but the complainants refused to accept the said plot and claimed refund of money with compensation. Thereafter, on 16.08.2014 the OP No. 1company under the signature of OP No. 3 intimating the complainants refund of the amount of Rs. 6,00,000/- by cheque. However, the said cheque drawn on ICICI Bank limited, Kasba Branch amounting to Rs. 6,00,000/- was dishonoured with the remarks ‘funds insufficient’. The complainants have stated that time and again they requested the OP No. 1 company either to execute the agreement for sale in respect of the subject plot or to refund the amount of Rs. 6,00,000/- but all the requests and persuasions went in vain. Hence, the respondent Nos. 1 and 2 approached the Ld. District Forum with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to pay Rs. 6,00,000/- being the value of the purported cheque; (b) to direct the OPs to pay compensation of Rs.3,00,000/- for harassment and mental agony; (c) costs of proceeding etc.
The appellants being Opposite Parties by filing a written version disputed the contention of the complainants. However, as the written version filed by appellants (Opposite Party Nos. 1 to 3) was not accompanied with a vakalatnama, the Ld. District Forum did not accept the same and proceeded to decide the case against the Opposite Parties ex parte.
Upon hearing the Ld. Advocate for the complainants and on perusal of the materials on record, the Ld. District Forum by impugned order allowed the complaint with certain directions upon the OPs, as indicated above. To assail the said order, the OP Nos. 1 to 3 have come up in this commission with the instant appeal.
Mr. Prasanta Banerjee, Ld. Advocate for the appellant has submitted that the Ld. District Forum has passed the order without considering the actual proposition of law that on agreement for transfer of land does not come under the purview of the Act. In support of his contention he has placed reliance to a decision of the Hon’ble Supreme Court reported in Civil Appeal No. 331/2007 (Ganesh Lal –vs- Shyam) and submitted that the dispute being civil in nature, the respondents/complainants should approach a competent civil court in accordance with the provisions of Specific Relief Act, 1963.
Per contra, Mr. A.K Singh, Ld. Advocate for respondent Nos. 1 and 2 has contended that the appellant company/OP No. 1 company being developer promised to provide a developed plot with basic infrastructure to the respondent Nos. 1 and 2 and as such the respondent Nos. 1 and 2 must be treated as ‘consumer’ as defined in Section 2(1)(d) of the Act and the referred decision has no manner of application in the facts and circumstances of the case.
We have given due consideration to the submission made by the Ld. Advocate appearing for the parties and scrutinised the materials on record.
Undisputedly, appellant No. 1/ OP No. 1 is a private limited company to which respondent No. 2 is Chairman cum Managing Director and Authorised Signatory and appellant No. 3 is one of the Directors of the said company. On 25.04.2013 the respondent Nos. 1 and 2 being intending purchaser agreed to purchase one plot of land from the appellant company measuring an area of 4 cottahs being scheme plot No. 4B 112 lying and situated at Mouza-Sangur, P.S.- Sonarpur, Dist- South 24 Parganas together with right to take electric, tap water, telephone connection through over and under 20 ft. wide common passage adjacent to the said plot at a total consideration of Rs. 4,40,000/- i.e. @ 1,10,000/- per cottahs. It remains undisputed that the respondent Nos. 1 and 2 have already paid the entire consideration amount to Rs. 4,40,000/- which was payable by them by way of instalments. The respondent Nos. 1 and 2 have paid the entire amount and the last instalment in this regard was paid on 09.01.2014. In the agreement it was stipulated that the appellant company will handover the plot in question to the respondent Nos. 1 and 2 after completion of the terms and conditions of the agreement. Since the respondents Nos. 1 and 2 has paid entire consideration amount, as per terms of the agreement, the appellant company should have handed over the plot in question and to execute the sale deed in favour of the respondent Nos. 1 and 2 within 4 years from the date of execution of agreement for i.e. within 24.04.2017.
Admittedly, the appellant company has failed to fulfil their promise in executing the sale deed and to deliver the possession of the plot in question within the time framed. Ultimately, the appellant company agreed to refund the said amount of Rs. 4,40,000/- and to compensate the respondent Nos. 1 and 2. In this regard, issued a letter on 16.08.2014 intimating the refund of the amount of Rs. 6,00,000/-. The record reveals that the said cheque was dishonoured on account of insufficient fund for which the respondent Nos. 1 and 2 have issued notice upon the appellant company to lodge one criminal complaint under Section 138 of Negotiable Instrument Act. Therefore, the failure on the part of appellant company to fulfil their part of promise in terms of agreement for sale dated 25.04.2013 prompted respondent Nos. 1 and 2 to lodge the complaint under Section 12 of the Act before the Ld. District Forum.
Now, the question arises for consideration as to whether the alleged agreement for sale of plot of land will come under the purview of the Act. In the case of Ganesh Lal (Supra) while discussing on the issue, in paragraph 6 of the said decision the Hon’ble Supreme Court has observed thus:
“6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ‘deficiency’ as quoted above. We may, however, note that when it comes to ‘housing construction’ , the same has been specifically covered under the definition of ‘service’ by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simplicoter is concerned, an if there is any complaint, the same would not be covered under the said Act.”
In a case of almost similar nature, the Hon’ble National Commission in a case reported in II (2018) CPJ 171 (Dipak Das and Another –vs- Bengal Shristi Infrastructure Development Limited and Another) has observed that in a case of sale of plot of land by the OPs to the complainant for consideration without having any agreement for further development on payment, it does not come within the ambit of deficiency of service and the case being a sale simpliciter, it is not covered under the Act.
The facts of the referred case were that the Opposite Party being an infrastructure development concern intended to develop the integrated township under the name and style ‘Shristi Nagar’ at Asansol, started to develop plots, plots with bungalows etc to the intending purchasers. The complainant No. 1by an application applied for a plot measuring about 2.05 cottahs more or less at Shristi Nagar. However, on the allegation of deficiency of services the complainant lodged the complaint being DF case No. 200/2012 with following prayers:
- “The possession of plot No. 49 at Ahiri (standard), Shristinagar, Asansol or if the plot No. 49 is not available then any other plot of land measuring 2.5 kathas at Shristinagar at Asansol after receiving payment of Rs. 1,70,130/-
- Rs.50,000/- as compensation towards mental pain, agony and harassment;
- Rs. 60,000/- towards litigation cost and/or
- To pass such other or further order or orders as your honour may deem fit and proper”
The said complaint was allowed by the Ld. District Forum, Burdwan vide its order dated 09.04.2014. Aggrieved by the said order of the Ld. District Forum, the infrastructure development concern preferred an appeal in this commission being FA/738/2014. This commission by final order/judgment dated 13th October, 2017 allowed the appeal and set aside the order passed by the ld. District Forum citing the reference in the case of Ganesh Lal (supra). The Hon’ble National Commission in RP No. 57/2018 arising out of the said appeal did not find any jurisdictional or legal error in the order of this commission passed in appeal and consequently dismissed the revision petition. In the instant case, it is evident that the respondent in his petition of complaint has prayed for execution of sale deed over the plot mentioned in the schedule to the agreement for sale which clearly indicates that it is a case of sale simpliciter of a plot of land which is not amenable before a forum constituted under the Act.
Therefore, after giving due consideration to the submission made by the Ld. Advocates appearing for the parties we are constrained to hold that the Ld. District Forum has passed the impugned order without considering the actual proposition of law. Therefore, keeping in view the authorities referred above, we are constrained to interfere with the order impugned.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned judgment/final order is hereby set aside.
Consequently, the complaint is rejected being not maintainable before a forum constituted under the Act.
However, this order will not prevent the respondent Nos. 1 and 2/complainants to approach an appropriate forum/court in accordance with law and in order to overcome the hurdle of limitation, he may seek assistance of the decision reported in (1995) 3 SCC 583 (Laxmi Engineering Works –vs- P.S.G. Industrial Institute).
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Baruipur for information.
