Shyamal Kumar Ghosh, Member

1. The instant consumer case has been filed by the GURUNANAK EDUCATIONAL TRUST AND ANOTHER, complainants herein, against the opposite parties under section 47 of the Consumer Protection Act, 2019 praying for certain reliefs as prayed for.
2. That the date i.e. 27/03/2023 has been fixed for admission hearing.
3. The matter has been taken up for admission hearing on the aforesaid date. At the time of hearing ld advocate has filed some relevant documents and papers along with some citations for ready reference which are kept with record.
4. We have heard the ld advocate appearing for the complainants at length and in full.
5. We have considered the submissions of the ld advocate.
6. We have perused the materials  available on record.  
7. At the admission stage, it should be decided at first that whether the complainants come well within the purview of the definition of the ‘consumer’ or not under the Consumer Protection Act, 2019. Secondly whether there is any prima facie case against the opposite parties or not under the said Act, 2019.
8. Having heard the ld advocate appearing for the complainants and upon careful perusal of the relevant documents and papers, the glaring issue has been raised at that moment, whether the ‘Trust’ comes well within the purview of the definition of the ‘consumer’ or not under the Act, 2019.
9. In respect of the aforesaid issue, ld counsel has filed some rulings and citations which are analysed below:-

1. Ld advocate has argued that the ‘trust’ comes well within the purview of the definition of the ‘consumer’ under the Act, 2019 and having relied upon the case law ie ADMINISTRATOR SMT. TARA BAI DESAI CHARITABLE OPTHALMIC TRUST HOSPITAL, JODHPUR VS MANAGING DIRECTOR SUPREME ELEVATORS INDIA PVT LTD & OTHERS, the ld counsel has tried to establish their case. Now it should be decided that whether this particular cited case law is applicable or not in respect of instant consumer case. Upon careful perusal of the cited case law it appears to us that Hon’ble Supreme Court, in Special Leave Petition (Civil) No - 18636 of 2019 dated 04/10/2019, has been pleased to decide that “in our view, the case of a ‘trust’ may also come within the purview of the definition of ‘person’ under the Act...................In the circumstances, we find it difficult to accept that a trust would not come within the definition of a ‘consumer’. In our view, the issue requires to be revisited and the matter requires re-consideration. We, therefore, request the Hon’ble Chief Justice of India to constitute a bench of such strength as the Hon’ble Chief Justice of India may consider proper.” From the aforesaid discussion and observations, it is clear to us that the Hon’ble Apex Court has clarified the matter by using the word trust may instead of trust shall. Not only that the Registry is directed to place the matter before the Hon’ble Chief Justice of India. So there is no hesitation to hold that the matter is still pending for final and conclusive order to be passed by the Larger Bench of Hon’ble Apex Court. Accordingly this particular citation is not so helpful for establishing their case at present.
2. Thereafter, ld advocate has also cited another case law ie LILAVATI KIRTILAL MEHTA MEDICAL TRUST VS M/S – UNIQUE SHANTI DEVELOPERS & OTHERS, wherein the Hon’ble Supreme Court, in Civil Appeal no 12322 of 2016 dated 14/11/2019, has been pleased to hold that flats purchased for the purpose of use as hostel facilities for the nurses of a hospital – not a commercial purpose. It would be the settled principle of law to determine whether the activity or transaction is for commercial purpose or not as observed by the Hon’ble Apex Court.    
3. In pursuant to the above referred citation, it is clearly observed that the flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover the flats were being provided to the nurses without any rent. Hence the provision of hostel facilities to nurse so as to facilitate better medical care is a positive duty enjoyed upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital and hence is not even remotely related to the object of earning profits or for any commercial use. Now we try to clarify this point upon careful perusal of averments and documents filed by the complainants.  
4. In the instant consumer case the trust which is enumerated in the petition of complaint is an educational trust and the accommodation is supposed to be provided to the students coming from various parts of West Bengal as well as India and to that effect the complainants/trust has intended to purchase the part of ground and first floor and complete 2^nd and 3^rd floor total measuring area 13363 sft including super build up area more or less. In this respect we note down the following observations taken by us in order to take the proper decisions.

1. In pursuant to the above referred case law, it has been decided that the flats were being provided to the nurses without any rent. But in the present consumer case there is no such averment or pleading regarding delivery of such flats to the students which will come within the purview of rent free accommodation.
2. Whether the transaction or activity is for commercial purpose or not that should be pleaded in the petition of complaint in order to prove their case but there is no such pleading.
3. Whether there is any direct nexus with the profit generating activity or not that should also be pleaded in the petition of complaint but there is no such whisper.
4. Not only that the total measuring area of the flat 13363 sft, a huge area, has been shown in the instant consumer case and as such whether there is any commercial activity or any profit motive is involved or not that should be decided prima facie otherwise the main object of the said Act 2019 is to be frustrated. When there is no such proper document in support of their case or pleadings in the petition of complaint, we are in dark, at this juncture. It is the settled principle of law that the parties cannot go beyond their pleadings. When there is no such pleadings, how the complainants are entitled to get relief/reliefs as prayed for.

10. Now, we turn into another aspect relating to the aforesaid consumer case. We have carefully perused the clause no. 7 at the page no.5 of the agreement for sale dated 18/02/2009 which is reproduced as follows:-

“That if any dispute arises between the parties herein any of them can take shelter of Specific Performance Act to settle the dispute if there be any, for the ends of justice.”

It is the settled principle of law that a contract is an agreement made between the parties which create a legal relationship between them and the same has a legal binding effect which cannot be denied by the parties after execution of the agreement.

So in pursuant to the above observations, it should be the duty of the complainants to do any kind of legal act/acts simply on the strength of the above referred clause being no. 7 as both the parties are agreed with the said clause and subsequently the same has been signed by them. So as per said clause it should be proper at the behest of the complainants to approach before the Ld Civil Court for taking shelter under Specific Performance Act.

11. Upon careful perusal of the DEED OF TRUST registered on 15/05/2009, it appears to us that the Trust viz. GURU NANAK EDUCATIONAL TRUST has come into force on and from 6^th day of May 2009. We have carefully noticed that Mr. Taranjit Singh, as a trustee of GURU NANAK EDUCATIONAL TRUST, has endorsed his signature with the seal of the aforementioned Trust upon the agreement for sale dated 18/02/2009. At this juncture we are very astonished to think that when the Trust has been incorporated with effect from the aforementioned stipulated date ie 06/05/2009, how the said complainant viz. Taranjit Singh has endorsed his signature with seal of trust as a trustee on the agreement for sale dated 18/02/2009.    
12. From the aforesaid observations, it is crystal clear to us that there is no such existence of the Trust on 18/02/2009 and as such a vital question is raised at this juncture before us as to how far said agreement for sale dated 18/02/2009 bears the existence of legal validity,  though the said issue should be adjudged by a competent Civil Court. In fact,  we can safely conclude that the complainant does not come with clean hands before this Commission.
13. However we can place reliance upon the decision reported on PRATIBHA PRATISTHAN AND OTHERS VS MANAGER, CANARA BANK AND OTHERS  2017 3 SCC 712 wherein the Hon’ble Supreme Court has been pleased to hold that person means:-

Section 2(m) of the C.P. Act, 1986

1. A firm whether registered or not,
2. HUF,
3. Co-Operative Society,
4. Association of Person whether registered under the Societies Act, 1860.

So, on a plain and simple reading of the provision of the Act, it is clear that a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.

14. Thus being the situation, we cannot pass any remark regarding continuous cause of action though the ld advocate has filed several citations in this regard.
15. Considering all aspects from  all angles and keeping in mind the present position of law and regard being had to the submissions of the ld advocate and citations of the above referred case laws we are of the view that the present consumer case has no leg to stand upon and as such we are constrained to dismiss the same being not admitted without any order as to costs.
16. The instant consumer case stands disposed of.
17. Note accordingly.