Bechu Ram Chakraborty vs Mahesh Shaw

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 10.10.2013, passed by the West Bengal State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 747/2012, ''''Bechuram Chakraborty versus Mahesh Shaw '''', vide which while dismissing the appeal, the order dated 28.06.2012, passed by the District Consumer Disputes Redressal Forum, Kolkata in case No. 338/2010, allowing the consumer complaint in question, was upheld.

BRIEF facts of the case are that the complainant/respondent entered into an agreement on 29.09.2009 with the petitioner/OP for purchasing a flat at a consideration of Rs. 13 lakh, out of which he paid Rs. 1 lakh as earnest money at the time of execution of agreement. The petitioner/OP is the landowner and developer of the proposed building, situated at premises no. 22B, Paddapukur Square, Kidderpore, Police Station Watgunge, Kolkata - 700023. As per the complainant, the flat having built -up area of 800 sq. ft., consisting of two bedrooms, one dining and drawing room, one kitchen and one bath together with balcony and facilities like sewerage, water supply, electricity etc. was to be sold by the OP to the complainant. The balance amount of Rs. 12 lakh was to be paid by the purchaser on or before the execution and registration of sale -deed which was to be held within three months from the date of execution of the said agreement. However, the OP failed to honour their commitment of providing the property within the stipulated period and asked the complainant to wait for another two months. The complainant sent a legal notice dated 28.07.2010 to the OP, asking them to hand over the possession of the flat and to execute the registration deed, but the OP sent reply to the notice on 19.08.2010, saying that the said agreement dated 29.09.09 had been cancelled. The complainant then filed the consumer complaint in question before the District Forum. In their written reply to the complaint filed before the District Forum, the petitioner/OP stated that the complaint was not maintainable, because it was not a consumer dispute. The OP was not a service provider under the agreement. The complainant had not been able to make payment within the stipulated time. The District Forum after taking into account, the evidence of the parties allowed the complaint and directed the OP to execute the registered deed of conveyance, together with delivery of possession and getting completion certificate and also to pay compensation of Rs. 20,000/ - for mental harassment and Rs. 5000/ - as cost of litigation. The complainant was also directed to pay the balance amount on the date of registration. An appeal was filed before the State Commission against this order by the petitioner/OP which was dismissed vide impugned order. It is against this order that the present petition has been made. At the time of arguments, the learned counsel for the petitioner vehemently argued that this was a case of ''simplicitor sale '' of property only, and no service was required to be provided to the complainant by the petitioner/OP. The provisions of the Consumer Protection Act, 1986 were, therefore, not applicable in this case, rather, it is a case for specific performance, for which the complainant should go to a civil court of competent jurisdiction. The learned counsel stated that there had been no hiring of service on the part of the complainant and hence, the question of any deficiency in providing service on the part of the petitioner/OP does not arise. The learned counsel stated that a perusal of the complaint itself makes it clear that specific performance of the agreement dated 29.09.2009 had been requested, by making direction to the OP to transfer the said flat as per the terms and conditions of the agreement. It has been stated in the complaint itself that the petitioner/OP decided to sell the said property due to urgent need of money and hence, the agreement was entered between the parties. The learned counsel invited attention to an order passed by this Commission in ''''Municipal Board, Todaraisingh & Anr. versus Gopal Lal Sharma '''' [as reported in 2013(4) CPR 474 (NC)], saying that the cancellation of allotment of plot for non -deposit of the balance amount had been held to be in order as per this order of the State Commission. Further, the West Bengal State Commission in, ''''Smt. Ramarani Karar versus Sri Sankar Ghosh '''' [FA/791/2012 decided on 24.03.2014], had also held that when there was agreement for purchase of land without the stipulation for rendering services, it was a case of sale -simplicitor and the complainant could not be stated before a ''consumer ''. The learned counsel also referred to judgement passed by the Hon ''ble Supreme Court in ''''U.T. Chandigarh Administration and Anr. versus Amarjeet Singh & Ors. '''' [as reported in (2009) 4 SCC 660] saying that a consumer forum shall have jurisdiction only when the complaint is against a ''buyer '' or ''service -provider ''. The learned counsel further argued that the petitioner had not been afforded proper opportunity to lead their evidence. As per order recorded on 12.06.2012 by the District Forum, a copy of the evidence given by the complainant was served to the Advocate for the OP and the arguments were also heard on the same day. The learned counsel has drawn attention to an order of the State Commission in ''''MathuraMahto Mistry versus Dr. Bindeshwar Jha & Anr. '''' [2008 (1) CPR 1 (NC)], in support of his arguments. Further, the District Forum had wrongly concluded that in the present case, the petitioner/OP was a service provider, whereas the complainant had just deposited only 8% of the consideration money with the petitioner/OP.

IN reply, the learned counsel for the complainant/respondent stated that from the facts and circumstances of the present case, it could not be called a case of ''sale simplicitor '', because there had been an agreement between the developer/promoter and the complainant and hence, it was not a case of simple sale/purchase of the property. It had been admitted by the petitioner/OP and stated in the agreement itself that the petitioner had purchased a piece of land through a registered sale -deed, upon which they had raised construction of two -storeyed building, after demolishing the existing structure, and after getting the necessary building plan approved from the Municipal authorities. It had also been stated in the agreement in detail that the services mentioned in the third schedule attached with the agreement like water supply, sewerage, drainage, electrical wiring, common facilities etc. shall be provided by the petitioner to the complainant. It was clear, therefore, that it was a case of development of property, in which the petitioner had agreed to sell one flat to the complainant. The learned counsel argued that even the execution of registered conveyance deed was covered under the definition of service. Regarding the balance payment to be made by the complainant, the learned counsel argued that the petitioner never asked for the payment of the balance amount and did not seek any interest etc. on the balance amount. There was no stipulation in the agreement about the exact date of payment, but it had been stated that the payment shall be made on the date of execution of sale -deed. When the petitioner failed to execute the sale -deed, the complainant sent a legal notice to him on 28.07.2010 in response to which the petitioner sent reply on 19.08.2010, saying that the said agreement had been cancelled. The petitioner could not have cancelled the agreement unilaterally and that also without sending any notice etc. to the complainant.

REFERRING to the case law, the learned counsel stated that the orders/judgements quoted by the petitioner related to simple purchase of land and they were not applicable to the facts of the present case. In the case decided by the National Commission ''''Municipal Board, Todaraisingh & Anr. versus Gopal Lal Sharma '''' (supra), the cancellation of allotment of plot was held to be valid, because the allottee failed to make payment, even after being given numerous opportunities to pay the same. In the case ''''Smt. Ramarani Karar versus Sri Sankar Ghosh '''' (supra), decided by West Bengal State Commission, it was a case of simple purchase of land without rendering any services. The learned counsel referred to the order passed by the Hon ''ble Supreme Court in ''''GaneshLal versus Shyam '''' [as reported in 2013 STPL (Web) 892 SC], in which their Lordships had held as follows: - ''''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 simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act. ''''

It has been made clear in the above judgment that the subject of ''''housing construction '' was covered under the definition of ''service '', as per amendment in the Act with effect from 18.06.93, by Act 50 of 1993.

THE learned counsel for the complainant/respondent has further referred to the orders of the Hon ''ble Supreme Court in the following cases: - (i) YunusAli (Dead) through his LRs versus Khursheed Akram [as reported in 2008 (7) SCC 292] (ii) PandurangDhondi Chougule and others versus Maruti Hari Jadhav and others [as reported in AIR (SC) 153] (iii) ShyamalKumar Roy versus Sushil kumar Agarwal [as reported in 2006 (11) SCC 331] (iv) Olympus Superstructures Pvt. Ltd. versus Meena Vijay Khetan and Ors. [as reported in 1999 (5) SCC 651] (v) Mr. France B. Martins versus Mrs. Mafalda Maria Teresa Rodrigues [as reported in 1999 4 RCR (civ) 151]

LEARNED counsel also referred to a case decided by the High Court of Calcutta in ''''MandiraMookerjee versus District Consumer Disputes Redressal Forum '''' [as reported in [2005] 0 AIR(Cal) 108], saying that nothing in the Specific Relief Act provides that the relief under said Act cannot be had anywhere else, other than the Civil Court. The learned counsel concluded his arguments, saying that it was not a case of ''sale simplicitor '' as the agreement in question was a composite agreement, according to which services were to be provided by the petitioner alongwith the flat and hence, the consumer court was competent to hear the present case. Moreover, in revisional jurisdiction, there should not be re -appreciation of the evidence, because the scope of a revision petition was limited.

IN reply, the learned counsel for petitioner stated that the common facilities were already there and no further construction of flat was to be done; hence it was a case of sale -simplicitor.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced by the parties. The facts of the case as admitted by the parties are that the petitioner/OP purchased a piece of land through registered sale -deed and then, carried out construction on the same after demolishing the existing structure and raising a new building, after getting the building plan approved from the Municipal authorities. In the building so constructed, the petitioner entered into an agreement with the complainant to sell a flat on the second floor, alongwith the common facilities and proportionate share of land. The exact description of the property to be sold and also the common facilities to be provided have been explained in detail in the agreement itself. It has also been stated that the total consideration amount of the flat was Rs. 13 lakh, out of which a sum of Rs. 1 lakh was received by the petitioner by way of advance payment. It has been stipulated that the balance amount of Rs. 12 lakh shall be paid by the purchaser to the seller on or before the execution of registration of sale -deed which will be done within three months from the date of execution of the agreement, i.e., 29.09.2009. It has also been stated that time was the essence of this agreement. The complainant has taken the plea that he was willing to perform his part of obligation to complete the transaction by making payment of balance amount of Rs. 12 lakh and he requested the opposite parties from time to time, but the OP deferred the date of execution of conveyance deed, taking one plea or another. It has also been stated that after the expiry of the stipulated period of three months, the complainant met the OP at his premises on 10.01.2010 and requested him to complete the transaction, but the OP asked him to contact after two months. Ultimately, the complainant sent a legal notice through an Advocate on 28.07.2010 to the OP, in response to which, the OP replied on 19.08.2010 that the agreement between them stood cancelled. On the other hand, the OP has taken the stand that the complainant did not pay the balance amount despite repeated requests and hence, the sale deed could not be executed. The petitioner duly conveyed to the complainant on 19.08.2010 through Advocate that the agreement stood cancelled. From the material on record, there is no document or proof to support the contention of the complainant or the petitioner whether they made specific efforts to complete the transaction in accordance with the agreement dated 29.09.2009. The fact, however, remains that neither payment was made to the petitioner nor the sale -deed was executed. It is clear, however, from the record that the petitioner sent his letter dated 19.08.2010 to the complainant, saying that the agreement stood cancelled, only in response to the legal notice dated 28.07.2010 sent by the complainant. There is nothing on record to say if any written communication was sent by the petitioner or show cause notice etc. sent before the cancellation of the agreement. It has been rightly held by the consumer fora below that it was a unilateral action on the part of the petitioner to cancel the agreement.

NOW , coming to the issue of ''sale simplicitor '' as raised by the petitioner, the orders/judgements quoted by the petitioner bring out that the facts of those cases are different from the facts of the present case. In the case ''''Municipal Board, Todaraisingh & Anr. versus Gopal Lal Sharma '''' (supra), it has been clearly observed that numerous opportunities were given to the allottee to make the payment by the Municipal Board. Even after a lapse of 23 years, the Municipal Board asked the allottee to make the payment of balance amount of allotment money, but it was not done. It was held, therefore, that the cancellation of plot was in order. In the present case, there is no evidence that any notice etc. has been given to the complainant asking him to make the payment. Further, in the case of ''''Smt. Ramarani Karar versus Sri Sankar Ghosh '''' (supra) decided by the West Bengal State Commission, it has been held that there was no stipulation for rendering service and hence, it was a case of sale simplicitor. In the present case, however, the services to be provided have been explained in detail in the agreement itself. It cannot be stated, therefore, that it was a case of simple sale of property. The position has been made absolutely clear in the orders passed by the Hon ''ble Supreme Court in ''''GaneshLal versus Shyam '''' (supra), in which their Lordships have held 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 18.06.1993 in the Consumer Protection Act, 1986. The facts of this case make it very clear that the petitioner raised a new building, after getting the necessary approval from the Municipal Authorities, a part of which he wanted to sell to the present complainant. It has also come on record that another flat in the building has already been sold to some other party and the sale deed duly executed in his favour on 12.03.2003. I, therefore, do not agree with the contention of the petitioner that it was a case of sale -simplicitor and hence, the consumer fora did not have jurisdiction to entertain the complaint.

THE State Commission and the District Forum, after carrying out a detailed analysis of the facts and circumstances on record have given concurrent findings in favour of the complainant, I do agree with the contention raised by the complainant/respondent that in revision petition, the scope of interference is limited and the orders passed by the Consumer Fora below can be altered only if there is a patent error of jurisdiction. In the present case, no such patent error or perversity is there, which may call for interference at revisional stage. The order made by the Hon ''ble Supreme Court in the case ''''Mrs. Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. [II (2011) 11 SCC 269] '''' supports this view. In the light of the discussion above, it is held that there is no illegality, irregularity or jurisdictional error in the orders passed by the Consumer Fora below, which may merit interference at the revisional stage. The revision petition is, therefore, ordered to be dismissed and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs.