BEFORE THE HON'BLE
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION KOLKATA UNIT – III (SOUTH), AT
ALIPORE,
KOLKATA – 700027,
WEST BENGAL
Consumer Complaint
No. 24 of 2015
In the matter of ;
Mr. Ashish
Sen, Proprietor of M/s. Ashis Sen, Son of Late Mohitosh Sen, residing at
Premises being No. 2/87, Sree Colony, Police Station – Netaji Nagar, Kolkata –
700092.
……………….Complainant
-
Versus –
(1) Smt. Ila Das, Wife of Late Sushil Kumar Das,
residing at Premises being no. 3/95, Sanghati Colony, Police Station – Patuli,
Kolkata – 700047.
(2) Debshila Das, Daughter of Late Sushil Kumar Das,
residing at Premises being no. 3/95, Sanghati Colony, Police Station – Patuli,
Kolkata – 700047.
……………….Opposite Parties.
WRITTEN
OBJECTION TO THE AMENDED COMPLAINT
MOST RESPECTFULLY SHOWETH:
1.
That the present Consumer Complaint has
been filed by the Complainant under the Consumer Protection Act, 1986, and the
Opposite Parties (OPs) are submitting this Written Objection to the Amended
Complaint of the Complainant.
2.
That the Opposite Parties vehemently
denies the allegations made in the amended complaint, except for those
specifically admitted herein.
3.
That the Opposite Parties beg to
states that the Consumer Case being CC/24/2015 was fixed for argument on
01/12/2023. The Learned Advocate of the Complainant or the Complainant in
person was not present the Learned Advocate for the O.P. was present on the
said date fixed for argument. But the Hon’ble Commission was obliged to hold
that since the sole Learned Member was going to retire very soon, the hearing
of argument cannot be taken up, and fixed the date on 21/05/2024, for argument,
in the said consumer case. In the meantime the O.P. Sushil Kumar
Das was died and left this universe for heavenly abode on 20/01/2024. In the given
facts of the death of the O.P. Sushil Kumar Das, on 20/01/2024, the said
Consumer Case being CC/24/2015, has been abated on 19th day of
April’ 2024, since the consumer complainant did not take any recourses to
inform the death of the O.P. and to seek substitution thereof within a
prescribed period of 90 (Ninety) days, in the said consumer case before the
Hon’ble Commission.
4.
That the Opposite
Parties beg to states that on 21/05/2024, the present Consumer
Case was fixed for the argument before the Hon’ble Commission, the consumer
complainant submitted a petition under Order 22 Rule 4 of C.P.C. for
Substitution, which states inter alia as at paragraph number 3 –“That during
the pendency of the case and at the stage of argument and on 19.01.2024 the
owner /Developer, Sushil Kumar Das died intested leaving behind the following
persons as his legal heirs and successors details below:-
NAME RELATION
a)
ILA DAS Wife
b)
DEBSHILA DAS Daughter
The Learned Advocate for the said
deceased O.P. has submitted an information by way of petition annexed therein
the Photostat copy of the death certificate of the deceased O.P. which shows
the death of the O.P. is as 20/01/2024.
The Hon’ble Commission did not take up
the petition placed by the Consumer Complainant as well as by the Learned
Advocate of the deceased O.P. for hearing. The Hon’ble Commission, passed the
following Order ;
“Ld. Advocates for both the parties are
present. Complainant files a substitution petition from which it appears that
the OP Sushil Kumar Das died on 20/01/2024. The petition is allowed for
substitution. Fix 13/6/2024 for amended version of complaint.”
5.
That the Opposite Parties state and
submit that on 13/06/2024, nothing has been placed or adopted in the said
consumer case, as it appears from the said Order dated 13/06/2024.
6.
That the Opposite Parties state and
submit that the Consumer Complainant did not place any limitation application
with his said substitution petition. The Consumer Complainant did not adhere
with the prescribed provisions of the Law therefore the said order which
allowing substitution is liable to be recall and to set aside in limnie.
7.
That the Opposite Parties states and
submit that the Consumer Complainant did not say anything or given any
statement as to what situation ever prevented him not to come before the Hon’ble
Commission, within the statutory period as prescribed under the law in placing
the substitution petition, therefore the said order which allowing substitution
is liable to be recall and to set aside in
limnie.
8.
That the Opposite Parties states and
submit that the consumer complainant has cited his said substitution petition
under Order 22 Rule 4 of C.P.C. which is not at applicable in the given
consumer case as the O.P. was duly appeared and contested the said consumer
case by submitting his written versions and other necessary steps during the
trial of the present consumer case. However, this is not
subject to Order XXII Rule 4(4) of the CPC which runs as under :- “Order 22
Rule 4 (4) The Court whenever it thinks fit, may exempt the plaintiff from the
necessity of substituting the legal representatives of any such defendant who
has failed to file a written statement or who, having filed it, has failed to
appear and contest the suit at the hearing; and judgment may, in such case, be
pronounced against the said defendant notwithstanding the death of such
defendant and shall have the same force and effect as if it has been pronounced
before the death took place.”, therefore
the said order which allowing substitution is liable to be recall and to set
aside in limnie.
9.
That the Opposite Parties states and
submit that on a bare perusal of the provisions under
Order XXII Rule 4(3) of the CPC would clearly show that where within the time
limited by law, no application is made under sub-rule 1, the suit shall abate
as against the deceased defendant. It is not in dispute in the present case
that the consumer complainant admittedly did not file any application for
substitution on the death of the O.P.. Therefore, on the death of the O.P., the
Consumer Case automatically abates after the time prescribed to bring on record
the heirs and legal representatives of the O.P. expires.
10.
That the amendment to the complaint is
not maintainable in law and is liable to be rejected on the following grounds:
(a)
Lack of Jurisdiction
– The Hon’ble Commission lacks jurisdiction to entertain the amended complaint
due to The Agreement for Sale dated 06/10/2012, has
to be looked into, for any furtherance into the story of the complainant. The
said agreement for sale on bare reading and as apparently appeared that the
agreement between the Vendor and the Purchaser. The said agreement for sale
does not contain any ingredient about the development of any property and to
sell or purchase thereby. The said agreement for sale is a sale simplicitor and
without any occasion of development of property, in any manner whatsoever. In the
given facts of the said agreement for sale, the sale and purchase has been
occurred between the vendor and the purchaser. The vendor is not a developer.
The vendor did not construct the building premises for sale of flat to the
intending purchaser. On the given occasion, the vendor was in dire need of
money, which the purchaser came into knowledge and approached the vendor to
take the flat against the valuable consideration, and thus the said agreement
for sale dated 6th day of October’ 2012, came into existence between
the parties of the present consumer case.
Thus
this being a sale simpliciter, this Fourm has no jurisdiction to interfere in
the case.
Our
National Commission in a recent judgment 2015 (2) CPR page 195 opined
that sale of a plot simpliciter is different from plot sold by builders or
promoters. National Commission in para 8 of the said judgment opined that there
was no evidence that the petitioner / O.P in their case were working as
builders. They are seller simpliciters. It must be born in mind that the sale
of a plot simpliciter is different from the plot sold by the building promoter.
Our Apex Court also in the case of Ganeshlal, son ofMotilalSahu Vs. Shyam in
Civil Appeal No. 331 of 2007 held 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
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 18 June, 1993. That being the
position, as far as the housing constructed by sale of the 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,
the same would not be covered under the said Act. In view of above decision of
the Apex Court as well as our National Commission and the facts of the present
case being a simpliciter
sale of a plot of land or a flat not by any promoter or developer but by simple vendor also cannot
come within the purview of this Forum and the petitioner is to approach the
appropriate Forum for redressal of his grievances and regarding the point of
limitation is concerned, the petitioner can seek the help from the Apex Court
Judgment in Laxmi Engineering Works vs. PSG Industrial Institute 1995 (3) Supreme Court Cases page 583.
(b)
COMMERCIAL - M/s. Ashis Sen is a
Proprietorship Firm, which represented by its Proprietor Ashish Sen, is clearly
established a Commercial Occasion, and the said agreement for sale dated 6th
day of October’ 2012, wherein the purchaser has agreed to out right purchaseat 2nd floor flat (south east
facing) morefully described in the ‘A’ Schedule of property, which again
established a Commercial Occasion. The Commercial transaction and the agreement
does not come into purview of the Consumer Protection Act, unless the same is
for the livelihood, which has not ever been described in any paragraph of the
consumer application as well as in the evidence on affidavit of the
complainant. The outright purchase or
sale is a purely commercial aspect, meaning thereby as is and where is
basis.
In Ajit Singh Sodhi v.
Estate Officer, Union Territory Chandigarh,lV (2003) CPJ 362, which is the authority given by the Chandigarh
Commission on the subject. In this ruling the previous case laws have been
discussed and the State Commission has given the finding that:-
"...In view of the
law settled by the Hon'ble National Consumer Commission, a complaint
filed in respect of a plot of land purchased at an auction sale being
an out-right sale, would not be maintainable as there was no hiring of
service of the concerned development authority. In this view of the matter, the
District Forum-II was right in holding that the complaint filed by
the appellant under the provisions of the c.p. act was not maintainable.
Consequently we uphold the finding of the District Forum that the complaint
under the C.P. Act is not maintainable."(p.
367)
Admittedly this was also
a case of auction purchase and out-right sale. In the above ruling of Ajit
Singh Sodhi's case (supra) the rulings given by the National Commission namely, Shiela Construction (P.) Ltd. v. Nainital Lake Development
Authority, 1997 (1) CLT 330 and Tamil Nadu Housing Board v. R. Sivasubramaniayan, III (1998) CPJ 39, were referred. In these two rulings also it has specifically
held that:
"Consumer Forum
could not grant any relief in matters where the transaction had arisen out
of auction sale, which amounted to out-right sale of immovable
property and there was no arrangement of hiring of service for consideration
between the parties."
The
ruling reported in Housing Commissioner, U.P. Housing & Development
Board v.HirdayaNarain Singh, III (2000) CPJ 163. This ruling in fact
is against the complainant wherein in the very first line it has been held
that:
"No
doubt, if it is an out-right sale then the complainant will not be a consumer
as per Consumer Protection Act. ..."
(p. 163)
The present agreement for sale dated 6th
day of October’ 2012, wherein the purchaser has agreed to out right purchase at 2nd floor flat (south east
facing) morefully described in the ‘A’ Schedule of property, does not left any
doubt that the sale is out-right sale and then the complainant will not be a
consumer, as meant for The Consumer Protection Act.
Admittedly, there is a close and direct
nexus between the purpose of purchase of generating sets and the commercial
activity of manufacturing and assembling the automatic and manual door lift,
for trade carried on by the complainant’s company. Since, manufacturing and
assembling the automatic and manual door lift for the purpose of trade is a
Commercial activity, which sufficiently established that the Complainant is not
a Consumer as meant for the Consumer Protection Act, since the word
“Commercial” is excluded in the definition and not included in the Act.
In LilavatiKirtilal Mehta Medical
Trust v. Unique Shanti Developers and Order, reported in 2020 SCC 2 265,
it has been summarize the broad principles to be culled out for determining the
activity or transaction is “Commercial purpose”
“7.
To
summarize from the above discussion, though a straight- jacket formula cannot
be adopted in every case, the following broad principles can be culled out for
determining whether an activity or transaction is 'for a commercial purpose':
(i)
The question of whether a transaction is for a commercial purpose would depend
upon the facts and circumstances of each case. However, ordinarily, 'commercial
purpose' is understood to include manufacturing/industrial activity or business-to-business
transactions between commercial entities.
(ii)
The purchase of the good or service should have a close and direct nexus with a
profit-generating activity.
(iii)
The identity of the person making the purchase or the value of the transaction
is not conclusive to the question of whether it is for a commercial purpose. It
has to be seen whether the dominant intention or dominant purpose for the
transaction was to facilitate some kind of profit generation for the purchaser
and/or their beneficiary.
(iv)
If it is found that the dominant purpose behind purchasing the good or service
was for the personal use and consumption of the purchaser and/or their
beneficiary, or is otherwise not linked to any commercial activity, the
question of whether such a purchase was for the purpose of 'generating
livelihood by means of self- employment' need not be looked into.”
(c)
ALLEGATIONS NOT PROVED - Allegations of Complainant
not proved by way of Inspection Reports;
The allegations relating to Insufficient O/H Water Tank, Outside
Plaster, painting, Roof Protection earting, staircase railing, stop cock stair,
etc, care taker/ guard room, common toilet, O.P. Occupied Common area, Stand by
pump, Iron gate at stair of 3rd floor, 3rd floor Iron
gate, Rubbish/ Garbage at Ground Floor passage, etc. are all common benefits or
common facilities and in order to obtain relief, a ‘class action’ is required
in accordance with Section 12(1)(c) of the Act. For appreciation of the
situation, it would be worthwhile to reproduce the provisions of Section
12(1)(c) of the Act which provides :-
“Manner in which complaint shall be made.
1.
A complaint in relation any
goods sold or delivered or agreed to be sold or delivered or any service
provided or agreed to be provided may be filed with a District Forum by –
a.
.......
b.
........
c.
One or more consumers,
where there are numerous consumers having the same interest, with the
permission of the District Forum, on behalf of or for the benefit of, all
consumers so interested”.
Admittedly, 07 flats are there and only one of them have filed
this complaint. This indicates that other flat owners are either
satisfied with the construction made by the developer or not interested to
lodge complaint. In any case, perusal of prayer clause would show that
the relief has not been claimed for other similarly placed persons.
The interpretation and scope of Section 12(1)(c) of the Act was
the subject matter of adjudication before Three-Member Bench of the Hon’ble
National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar
Shukla& 21 Ors. – vs. – Ferrous Infrastructure Pvt. Ltd.). While
dealing with the scope of Section 12(1)(c) of the Act, the Hon’ble Commission
has observed thus –
“The primary object behind permitting a class action such as a
complaint under Section 12(1)(c) of the Consumer Protection Act being to
facilitate the decision of a consumer dispute in which a large number of
consumers are interested, without recourse to each of them filing an individual
complaint, it is necessary that such a complaint is filed on behalf or for the
benefit of all the persons having such a community of interest. A
complaint on behalf of only some of them, therefore, will not be
maintainable. If for instance, 100 flat buyers/plot buyers in a project
have a common grievance against the Builder/Developer and a complaint under
Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for
the benefit of say 10 of them, the primary purpose behind permitting a class
action will not be achieved, since the remaining 90 agreed persons will be
compelled either to file individual complaint or to file complaints on behalf
of or for the benefit of the different group of purchasers in the same
project. This, in our view, could not have the legislative intent.
The term ‘persons interested’ and ‘persons having the same interest’ used in
Section 12(1)(c) means the persons having a common grievance against the same
service provider. The use of the words ‘all consumers so interested’ and
‘on behalf of or for the benefit of all consumers so interested’, in Section
12(1)(c) leaves no doubt that such a complaint must necessarily be filed on
behalf of or for the benefit of all the persons having a common grievance,
seeking common relief and consequently having community of interest against the
said service provider”.
The materials on record indicate that the complainant has not
filed any application with a prayer to file the complaint in a representative
capacity in accordance with the provisions of Section 13(6) of the
Act. Under the garb of Section 12(1)(c) or Section 13(6) of the Act which
are primarily meant for common services, e.g. deficiency in maintaining common
areas or common facilities, complaint regarding goods are not maintainable
before this Commission particularly, when the flats were booked for different
amount on different dates under different terms and conditions. If
complaint pertaining to deficiency in goods pertaining to many complaints is
allowed in one complaint, it will create serious problem as observed by a
Larger Bench of Hon’ble National Consumer Commission in the case of Ambrish
Kumar Shukla& 21 Ors. (supra).
(d)
No Cause of Action
– The amended complaint does not disclose any fresh or valid cause of action
against the Opposite Parties.
(e)
Filing Beyond Limitation Period
– The amendment has been filed beyond the statutory period prescribed under the
Consumer Protection Act, without any valid reason for the delay.
(f)
Frivolous and Vexatious Litigation
– The amended complaint is an afterthought, intended to harass the Opposite
Parties, and should be dismissed with costs.
11.
That the Opposite Parties specifically
denies the allegations made in Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, & 14 of the amended complaint. The Opposite Parties beg to states
that The Original O.P. was a refugee from East
Pakistan and was allotted a plot by the Government of West Bengal. On the said
land the Original O.P. intends to a construction of a building of his own and
thereby constructed a Ground plus three storied building. Be it noted that on
that area the building sanction was not necessary and the building was
completed accordingly. Due to paucity of fund the said Original O.P. was
intends to sale a flat and the complainant approached him to buy a flat in the
2nd floor of the building. The complainant posing an Advocate drafted
the agreement and with ulterior motive wrote the measurement as 873 sq. ft.
instead of 950 sq. ft. and consideration was Rs. 16,50,000/-. Be it noted that
the complainant shall pay Rs. 1,800/- per Square feet. The Original O.P. handed
over possession of the complete flat on April’ 2013, and the complainant took
possession of the flat after verifying each and every items. As the construction
of the building being completed before the agreement was executed the
complainant made some addition and alteration in the said flat for his own
purpose. The Original O.P. was always ready and willing to register the deed of
conveyance after receiving the balance consideration money. The complainant did
not handover any materials of Rs. 75,000/- to the Original O.P. as such
deduction of the same did or could at all arise. The complainant being a
company as stated in the cause title the consumer court has no jurisdiction to
entertain the case. A defaulter in payment of consideration cannot get relief
under consumer protection Act. The case so filed is not maintainable.
12.
That the Complainant has failed to
establish any deficiency in service or unfair trade practice on the part of the
Opposite Parties.
13.
That the Opposite Parties reserves the
right to file a detailed reply, along with supporting evidence, at the
appropriate stage of the proceedings.
PRAYER;
In
view of the facts and circumstances stated above, it is most respectfully
prayed that this Hon’ble Commission may kindly:
a)
Reject the Amended Complaint as not
maintainable;
b)
Dismiss the complaint with costs in
favor of the Opposite Parties; and
c)
Grant any other relief(s) as deemed fit
and proper in the interest of justice.
AND FOR THIS ACT OF KINDNESS, THE
OPPOSITE PARTIES SHALL EVER PRAY.
AFFIDAVIT
We (i) Smt.
Ila Das, Wife of Late Sushil Kumar Das, aged about 72 years, by faith Hindu, by
Occupation House Wife, residing at Premises being no. 3/95, Sanghati Colony,
Police Station – Netaji Nagar, Kolkata – 700047, and (ii) Debshila Das,
Daughter of Late Sushil Kumar Das, aged about 37 years, by faith Hindu, by
Occupation Unemployed, residing at Premises being no. 3/95, Sanghati Colony,
Police Station – Netaji Nagar, Kolkata – 700047, do hereby solemnly affirm and
say as follows;
1. We are the
substituted Opposite Parties, in the present Consumer Case. We are competent to
swear this affidavit.
2. We are
acquainted and conversant with the material facts stated in the written
objection to the amended complaint.
This is true
to our knowledge.
3. That the
statements made in paragraph number 1, 3, & 10, of our written objection to
the amended complaint are true to our knowledge and the rests are our humble
submissions before the Hon’ble Commission.
The above
statements are true to our knowledge and belief.
DEPONENTS
Identified by
me,
Advocate
Prepared in my
Chamber,
Advocate
Date :
______February’ 2025
Place :Alipore
Judges’ Court
N O T A R Y
No comments:
Post a Comment