Execution application in consumer case against Lord Realty Private Limited

 

Before the Hon’ble District Consumer Disputes Redressal Commission

South 24 Parganas

Baruipur, Kolkata - 700 144.

 

Execution Application no.                 of 2023

{arising out of CC/57/2021}

 

                                                          In the matter of ;

An application under Section 71 and Section 72 of the Consumer Protection Act’ 2019; for enforcement of Order and penalty for Non-Compliance of Order & Judgment dated 8^th February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas;

AND

In the matter of ;

Shri Asish Kumar Ghosh, Son of Late Nripendra Nath Ghosh, residing at premises being no. 20/1, Jugipara Road, Flat – C-1, Debalay Apartment, Kolkata – 700028, Police Station – Dum Dum, District North 24 Parganas.         

                   ______Decree Holder

-      Versus –

 

1.   M/s. Lord Realty Private Limited, having its Registered Office at Premises being no. 71/9, Topsia Road, Kolkata – 700046, District South 24 Parganas.

 

2.   Mr. Mohammad Anwar Azim Son of Late Azimul Hassan, of Premises being no. 71/9, Topsia Road, Kolkata – 700046, District South 24 Parganas.

  ______Judgment Debtors

To,

The Hon’ble President and His Companion Hon’ble Members of the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas;

The humble petition of the above named Decree Holder, most respectfully;

Sheweth as under;

 

1.   That the Decree Holder is a peace loving and law abiding Citizen of the Country. The Decree Holder is residing at the address as given in the cause title of the present execution application.

 

2.   That the Decree Holders have preferred a Consumer Complaint vide CC/57/2021, against the Judgment Debtors, before the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas. The said consumer Complaint has been finally decided on 8^th day of February’ 2023.

 

3.   That the operative portion of the Order & Judgment dated 08/02/2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, is reproduced as ;

“That the instant case be and the same is hereby allowed ex-parte against the OPs  with cost of Rs.25,000/- (Rupees twenty five thousand) only.

 

That the OPs are jointly and severally liable and are directed to hand over the vacant and peaceful possession of the scheduled plot of land as described in the schedule of the petition of complaint as well as agreement for sale dated 17.10.2012 along with mutation in favour of the complainant within 45 days from the date of passing this order.

 

Alternatively the OPs are jointly and severally liable and are directed to refund the entire consideration amount of Rs.9,00,000/- (Rupees nine lakhs) along with simple interest @10% p.a. w.e.f. 17.10.2012 (date of agreement for sale) till the date of final realization within 45 days from the date of passing this order.

 

That the OPs are jointly and severally liable and are also directed to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) only for mental pain and agony suffered by the complainant within 45 days from the date of passing this order.

 

That the OPs are jointly and severally liable and are also directed to pay the litigation cost of Rs.25,000/- (Rupees twenty five thousand) within 45 days from the date of passing this order.

 

That the complainant is at liberty to put the order into execution after the expiry of 45 days in case the orders as aforesaid are not complied with by the OPs within 45 days from the date of passing this order”.

 

4.   That the said Order & Judgment dated 08 Feb 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24-Parganas, has been duly communicated to the Judgment Debtors, by the Learned Advocate of the Decree Holder.

 

Photostat copy of the Letter of Communication, with the Postal receipts and track report of the postal authority, are enclosing herewith and marked as Annexure –“A” Collectively.

 

5.   That the Judgment Debtors are well within the knowledge of the contents and purports of the said Order and Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas; But did not comply with the directions given upon the Judgment Debtors by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas; Thus the Decree Holder is not in receipt of anything which has ever been directed on the Judgment Debtors by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas.

 

6.   That the Judgment Debtors have not preferred any appeal against the said Order and Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, in terms of Section 41 of the Consumer Protection Act 2019, before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in the statutory period and till date of the placing this present Execution application.

 

7.   That therefore the said Order and Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, is attained its finality in terms of the prescribed provisions of Section 68 of the Consumer Protection Act’ 2019.

 

8.   That the Decree Holder seeks enforcement of the said Order and penalty for Non-Compliance of Order & Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, in terms of the provisions prescribed under Section 71 and Section 72 of the Consumer Protection Act’ 2019.

 

9.   That unless the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, enforce the Order and penalty for Non-Compliance of Order & Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtors, the Decree Holder will highly prejudice and suffer with irreparable loss and injury thereof.

 

10.                That this application is made bonafide and in the interest of administration of Justice.

 

11.                That the Decree Holder prays for the followings before the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas;

 

In the given facts & circumstances, the Decree Holder prayed that the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, would graciously be pleased to enforce the Order and penalty for Non-Compliance of Order & Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtors, in terms of the prescribed provisions of Section 71 and Section 72 of the Consumer Protection Act’ 2019, and or to pass such other necessary order or orders as your Honour may deem, fit, and proper for the end of Justice.

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

Verification

I, Asish Kumar Ghosh, being the Decree Holder, made this application for execution being enforcement of the Order and penalty for Non-Compliance of Order & Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtor, in terms of the prescribed provisions of Section 71 and Section 72 of the Consumer Protection Act’ 2019. I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my present execution application. I verify and sign this application on _______________’ 2023.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

I, Shri Asish Kumar Ghosh, Son of Late Nripendra Nath Ghosh, aged about _____years, by faith Hindu, by Occupation ____________, residing at premises being no. 20/1, Jugipara Road, Flat – C-1, Debaloy Apartment, Kolkata – 700028, Police Station – Dum Dum, District North 24 Parganas, West Bengal, do hereby solemnly affirm and declare as follows;

1.   That I am being the Decree Holder, made this application for execution being enforcement of the Order and penalty for Non-Compliance of Order & Judgment dated 8^th day of February’ 2023, passed in CC/57/2021, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtors, in terms of the prescribed provisions of Section 71 and Section 72 of the Consumer Protection Act’ 2019.

 

2.   That I am Competent to swear this affidavit. I am not suffering with any legal disability as emphasize in the Indian Contract Act’ 1872.

 

3.   That I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my present execution application.

 

The above statements are true to my knowledge and belief.

 

 

DEPONENT

Identified by me,

 

Advocate

Prepared in my Chamber,

 

 

Advocate

Date : _____________2023

Place : Baruipur                                                      NOTARY

 

Execution application in consumer case against greenhaven realty private limited

 

Before the Hon’ble District Consumer Disputes Redressal Commission

South 24 Parganas

Baruipur, Kolkata - 700 144.

 

Execution Application no.                 of 2023

{arising out of CC/11/2020}

 

                                                          In the matter of ;

An application under Section 71 and Section 72 of the Consumer Protection Act’ 2019; for enforcement of Order and penalty for Non-Compliance of Order & Judgment dated 1^st February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas;

AND

In the matter of ;

Smt. Soma Malla, Wife of Ashish Kumar Ghosh, residing at premises being no. 20/1, Jugipara Road, Flat – C-1, Debaloy Apartment, Kolkata – 700028, Police Station – Dum Dum, District North 24 Parganas.     

                   ______Decree Holder

-      Versus –

 

1.   M/s. Greenhaven Realty Private Limited, having its Registered Office at Premises no. GF-12, 1953, Rajdanga Main Road, 1^st Floor, Kolkata – 700107, Police Station – Kasba, District South 24 Parganas.

 

2.   Mr. Biswanath Mondal, Son of Sri Mangal Chandra Mondal, residing at Village – Purba Goyalbati, Kheyadaha, Sonarpur, South 24-Parganas, Kolkata – 743369.

 

3.   Mrs. Ira Mondal, residing at Village – Purba Goyalbati, Kheyadaha, Sonarpur, South 24-Parganas, Kolkata – 743369.

 

4.   Mr. Sudipta Kumar Ghosh, Son of Sisir Kumar Ghosh, residing at premises being no. C-181, Baisakhi Abasan, Block – AG, Salt Lake, Kolkata – 700091.

 

5.   Smt. Paroma Pathak, Daughter of Sri Apurba Pathak, residing at premises being no. 129, Jessore Road, Dum Dum, Police Station – Dum Dum, Kolkata - 700055.

  ______Judgment Debtors

To,

The Hon’ble President and His Companion Hon’ble Members of the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas;

The humble petition of the above named Decree Holder, most respectfully;

Sheweth as under;

 

1.   That the Decree Holder is a peace loving and law abiding Citizen of the Country. The Decree Holder is residing at the address as given in the cause title of the present execution application.

 

2.   That the Decree Holders have preferred a Consumer Complaint vide CC/11/2020, against the Judgment Debtors, before the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas. The said consumer Complaint has been finally decided on 1^st day of February’ 2023.

 

3.   That the operative portion of the Order & Judgment dated 01/02/2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, is reproduced as ;

 

“That the complaint case be and the same is allowed ex-parte against the O.Ps. with cost of Rs. 25,000/- (Rupees twenty five thousand).

The O.Ps. are jointly and severally liable and are directed to refund the entire amount of Rs. 5,20,000/-(Rupees five lakh twenty thousand)  only along with 12% simple interest p.a. w.e.f. 03.04.2012 (date of payment of 1^st installment) till the date of final realization within 45 days from the date of passing this order.

The O.Ps. are jointly and severally liable and are directed to pay the compensation to the tune of Rs. 2,00,000/- (Rupees two lakhs) only for harassment, mental pain and agony and deficiency in service suffered by the complainant within 45 days from the date of passing this order.

The O.Ps. are jointly and severally liable and are directed to pay litigation cost of Rs. 25,000/- (Rupees twenty five thousand) to the complainant within 45 days from the date of passing this order.

The Complainant is at liberty to put the order into execution after the expiry of 45 days if the orders are not complied with by the OPs within 45 days from the date of passing this order”

4.   That the said Order & Judgment dated 01 Feb 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24-Parganas, has been duly communicated to the Judgment Debtors, by the Learned Advocate of the Decree Holder.

 

Photostat copy of the Letter of Communication, with the Postal receipts and track report of the postal authority, are enclosing herewith and marked as Annexure –“A” Collectively.

 

5.   That the Judgment Debtors are well within the knowledge of the contents and purports of the said Order and Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas; But did not comply with the directions given upon the Judgment Debtors by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas; Thus the Decree Holder is not in receipt of anything which has ever been directed on the Judgment Debtors by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas.

 

6.   That the Judgment Debtors have not preferred any appeal against the said Order and Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, in terms of Section 41 of the Consumer Protection Act 2019, before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in the statutory period and till date of the placing this present Execution application.

 

7.   That therefore the said Order and Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, is attained its finality in terms of the prescribed provisions of Section 68 of the Consumer Protection Act’ 2019.

 

8.   That the Decree Holder seeks enforcement of the said Order and penalty for Non-Compliance of Order & Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, in terms of the provisions prescribed under Section 71 and Section 72 of the Consumer Protection Act’ 2019.

 

9.   That unless the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, enforce the Order and penalty for Non-Compliance of Order & Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtors, the Decree Holder will highly prejudice and suffer with irreparable loss and injury thereof.

 

10.                That this application is made bonafide and in the interest of administration of Justice.

 

11.                That the Decree Holder prays for the followings before the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas;

 

In the given facts & circumstances, the Decree Holder prayed that the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, would graciously be pleased to enforce the Order and penalty for Non-Compliance of Order & Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtors, in terms of the prescribed provisions of Section 71 and Section 72 of the Consumer Protection Act’ 2019, and or to pass such other necessary order or orders as your Honour may deem, fit, and proper for the end of Justice.

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

Verification

I, Smt. Soma Malla, being the Decree Holder, made this application for execution being enforcement of the Order and penalty for Non-Compliance of Order & Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtor, in terms of the prescribed provisions of Section 71 and Section 72 of the Consumer Protection Act’ 2019. I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my present execution application. I verify and sign this application on _______________’ 2023.

 

 

 

Affidavit

I, Smt. Soma Malla, Wife of Ashish Kumar Ghosh, aged about _____years, by faith Hindu, by Occupation ____________, residing at premises being no. 20/1, Jugipara Road, Flat – C-1, Debaloy Apartment, Kolkata – 700028, Police Station – Dum Dum, District North 24 Parganas, West Bengal, do hereby solemnly affirm and declare as follows;

1.   That I am being the Decree Holder, made this application for execution being enforcement of the Order and penalty for Non-Compliance of Order & Judgment dated 1^st day of February’ 2023, passed in CC/11/2020, by the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas, against the Judgment Debtors, in terms of the prescribed provisions of Section 71 and Section 72 of the Consumer Protection Act’ 2019.

 

2.   That I am Competent to swear this affidavit. I am not suffering with any legal disability as emphasize in the Indian Contract Act’ 1872.

 

3.   That I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my present execution application.

 

The above statements are true to my knowledge and belief.

 

 

DEPONENT

Identified by me,

 

Advocate

Prepared in my Chamber,

 

 

Advocate

Date : _____________2023

Place : Baruipur                                                      NOTARY

Law is nothing but a common sense

Environment Law #environment #environmental #law

the protection of women from domestic violence Act 2005 #petition by ag...

The institute imparts education. As the education is not a commodity and the educational institutions are not service providers, no question of deficiency in service arises

 

District Consumer Disputes Redressal Commission

South 24 Parganas

Baruipur, Kolkata-700 144

 

Complaint Case No. CC/10/2022 ( Date of Filing : 05 Jan 2022 )

1. Kamireddy Midde Prathap Reddy C/O- Kamireddy Midde Ramkrishna Reddy 3-71, Managapatnam, Haveli Sodanapalle, Narpala, Ananthapuram, Andhra Pradesh, 515425 ...........Complainant(s) Versus 1. Bandhan Konnagar Dn-32, Sector V, Salt Lake City, Kol-91, P.O- Bidhananagar CK market, P.O- Bidhannangar 2. Bandhan School Of Development And Management( BSDM) Dr. B.C. Roy Road, Kalitala, Rajpur, Kol-149, P.O- Rajpur S.O, P.S- Sonarpur ............Opp.Party(s)

 

BEFORE:
	SHRI ASHOKE KUMAR PAL PRESIDENT
	JAGADISH CHANDRA BARMAN MEMBER
	SMT. SANGITA PAUL MEMBER

 

PRESENT:

Dated : 19 Jan 2023

Final Order / Judgement

Smt. Sangita Paul, Member This is a case filed by Kamireddy Midde, S/o. Prathap Reddy C/o.Kaireddy Midde Ramakrishna Reddy, 3-71, Managapatnam Haveli, Sodamapalle, Narpala, Ananthapuram, Andhra Pradesh-515425 against Bandhan Konnagar, H.O. – DN-32, Sector-V, Salt Lake City, Kolkata-700 091, P.O. –Bidhan Nagar, C K Market, P.S. – Bidhan Nagar, West Bengal, India and Bandhan School of Development and Management (BSDM) with a prayer for directing the OP to hand over the certificate with proper affiliation from any recognized institution, to give the break ups of the said fees of Rs.4,02,500/- loan from Bandhan Bank Limited, to hand over the said loan amount of Rs.4,02,500/- to the complainant as no authentic certificate has been issued to the complainant having affiliation from any recognized institution, to give proper certificate having affiliation from a recognized university, to pay compensation for mental and physical harm and for ruining the time and career of the complainant, Rs.4,00,000/- as compensation and litigation cost of Rs.50,000/- for handling cases in different courts.  OP No.1 is Bandhan Konnagar, H.O. – DN-32, Sector-V, Salt Lake City, Kolkata-700 091, P.O. –Bidhan Nagar, C K Market, P.S. – Bidhan Nagar, West Bengal, India. OP No.2 is Bandhan School of Development and Management (BSDM), the address is Dr. B. C. Roy Road, Kalitala, Rajpur, Kolkata-700 149.  The complainant, by filing the case states that he is an unemployed youth.  The complainant came to know about Bandhan Bank Limited, having his head office at Kolkata.  The OP introduced a one-year course in collaboration with Bandhan Konnagar viz Bandhan Bank Next gen course for the young graduates through its self made man-of-Development and Management. The duration of the course was 12 months and the complainant had to stay for 9 months at the official residence and the rest 3 months were allotted for a job training at different branches of Bandhan Bank Limited. For taking part in the next Gen Banker Programmme the complainant updated his bio-data. After few months, a written examination, an interview were taken.  Then the selection of the complainant was confirmed.  The complainant was admitted to the programme for Post Graduate Course.  The OP gave false promises that a bright future was awaiting for the complainant.  The certificate is of great value.  The complainant paid course fee of Rs.4,02,500/- in favour of the institute.  The complainant also paid Rs.25,000/- for reservation of the seat on 22.06.2017 vide money receipt in favour of Bandhan Konnayar.   After payment by the complainant, Bandhan Bank disbursed “Perusal Loan” in the name “Next Gen Yuva Loan”.  The loan was directly paid to Bandhan Konnagar. In this case, Fair Banking Rules were not maintained by Bandhan Bank.  The complainant was given “personal loan” instead of “educational loan” The certificate which was issued and provided to the complainant was not affiliated to any university, nor falls under the UGC Certification Act, nor is endorsed by any competent authority.  Besides, the education imparted was not up to the mark.  The complainant was not entitled to get job in other banks. That the cause of action of this instant suit arises from the date of Agreement dated 28.05.2018 and it is still continuing. Hence the complainant prays for directing the OP to handover the certificate with proper affiliation from any recognized institution, to give the break ups of the said fees of Rs.4,02,500/-, the loan from Bandhan Bank Ltd. to hand over the said loan amount  of Rs.4,02,500/- to the complainant as no authentic certificate has been issued to the complainant, having affiliation from any recognized institution, to give proper certificate, having affiliation from a recognized university, to pay compensation for the mental and physical harm and for ruining the time and career of the complainant, Rs.04,00,000/- as compensation and litigation cost of Rs.50,000/- for handling cases in different courts. That the case was filed on 05.01.2022.  The case was admitted on 17.01.2022.  Notice was served upon the OPs on 28.02.2022.  No W/V was filed by the OP.  Hence, the case proceeded ex-parte against the OP.  On 27.07.2022, the complainant files evidence on affidavit.  On 02.12.2022 the complainant files BNA.  Argument was heard.  Accordingly, we proceeded for giving judgement.                                     Points for consideration :- Is the complainant, a consumer? Is the OP guilty of deficiency in service and unfair trade practice? Is the complainant entitled to get relief as prayed for? Decision with reasons :- Point No.1 & 2 :-  Both the points are taken up together for the convenience of discussion as they are interlinked. On perusal of documents and records, filed by the complainant, it appears that the complainant was admitted to 1-year course on Management viz. NexGen Banker Programme”.  The OP presented a rosy picture of the course.  The complainant after clearing written examination and interview was admitted to the said course.  The complainant paid Rs.04,02,500/- for the said course.  The duration of the course was 9 months and afterwards, there was a provision of training of 9 months and a provision of in-service training of 3-months.  The complainant completed all the 3 phases.  Now the question is whether the complainant is a “consumer” as defined in the Consumer Protection Act, 2019.  The complainant in this case cannot be treated as a “consumer” according to C P Act, 2019.  The complainant was admitted to Bandhan School of Development and Management.  The institute imparts education.  As the education is not a commodity and the educational institutions are not service providers, no question of deficiency in service arises.  Such matters are not maintainable in the Consumer Commission.  Consumer Commission is not entitled to entertain such cases under Consumer Protection Act. Let us go through the following citations to come to a definite conclusion :-   Pijush Kanti Mondal and Anr. Vs. the Principal Meghnad Saha Institute of Technology and Anr. In complaint Case No.CC/10/2018, decided on 08.05.2019 by the Ld. District Consumer Disputes Redressal Forum at Baruipur, South 24 Parganas. Guru Gobind Singh College of Education Vs Ranveer Singh (First Appeal No.669 of 2012) Decision on 13.01.2014.  Bikram Biswas and Anr. V the Principal, Netaji Subhas Engineering College and Anr. Case No.CC/206/2019 decided on 07.07.2022 by Ld. District Consumer Disputes Redressal Forum at Baruipur, 24 Pgs (South). Santosh Kumar Gupta & Anr. Vs. Skylark Aviation Training School case No.CC/495/2014, decided on 29.07.2022 by Ld. District Consumer Disputes Redressal Commission 24 Parganas (South). Jaipreet Singh Vs. FIITJEE Ltd. First Appeal No.21 of 2015, date of decision 02.02.2015. Koshy and Anr. Vs. Regional Institute of Co-operative Management’s cases. After perusal of all the citations referred above, it is clear that the complainant, being a student does not fall within the definition of Consumer, nor the OPs. being the educational institutions are service providers.  Education is not a commodity.  So this complaint is not maintainable.  The educational institutions are not providing any service, so the question of deficiency in service and unfair trade practice does not arise.  The District Consumer Disputes Redresal Commission is wholly without jurisdiction to entertain such complaints.  Hon’ble Supreme Court in Maharshi Dayanand University (supra) has held that respondent, as a student is neither “consumer”, nor university is rendering any service to the students.  Therefore Consumer Commission has no jurisdiction to entertain such complaint. In view of the argument advanced by the authorized representative of the complainant, and discussions made herein above, we are of the opinion, that the Commission has no jurisdiction to entertain this complaint.Both the points are thus decided in favour of the OPs and against the complainant. It appears that Points 1 and 2 have been decided in favour of the OP and there is no necessity to enter into the merit of the case.  The Commission has no jurisdiction to entertain the case.  As the deficiency in service of the OP cannot be decided by the Commission, we have no reason to hold that, the complainant is entitled to get the relief as prayed for. In the result, the case of the complainant fails. Hence, it is,                                                                                          Ordered That the instant complaint case be and the same is dismissed without contest as not maintainable.We pass no order as to cost. The final order will be made available in www.confonet.nic.in.   Dictated and corrected by me.                  Sangita Paul                                Member

 

[ SHRI ASHOKE KUMAR PAL]

PRESIDENT

[ JAGADISH CHANDRA BARMAN]

MEMBER

[ SMT. SANGITA PAUL]

MEMBER

Consumer Judgment on undated sale agreement

 

District Consumer Disputes Redressal Commission

South 24 Parganas

Baruipur, Kolkata-700 144

 

Complaint Case No. CC/20/2022 ( Date of Filing : 27 Jan 2022 )

1. Mr. Kapil Gupta/ Kappil Gupta S/O- Sant Kumar Gupta 23/5, Gariahat Road, P.S- Rabindra Sarobar , P.O- Sarat Bose Road, Kol-700029 ...........Complainant(s) Versus 1. Suchana Developers Pvt Ltd Nu- Mans, Pailan, P.S- Bishnupur, Kol-700104, Dist- S 24 Pgs 2. Mr. Pradip Das S/O- Mr. Nirmal Chandra Das Vill- Daulatpur, P.O- Pailan, P.S- Bishnupur, Dist- S 24 Pgs, PIN- 743503 3. Rajib Gazi S/O- Rasid Gazi Vill- Daulatpur, P.O- Pailan, P.S- Bishnupur, Dist- S 24 Pgs, PIN- 743503 4. Mr. Ankan Ray Saphai S/O- Late Pratul Krishna Ray Saphai Vill- Daulatpur, P.O- Pailan, P.S- Bishnupur, Dist- S 24 Pgs, PIN- 743503 ............Opp.Party(s)

 

BEFORE:
	SHRI ASHOKE KUMAR PAL PRESIDENT
	SMT. SANGITA PAUL MEMBER
	SHRI PARTHA KUMAR BASU MEMBER

 

PRESENT:

Dated : 10 May 2023

Final Order / Judgement

Sri Partha Kumar Basu, Member This complaint petition is filed u/s 12 of the Consumer Protection Act’ 1986 at the instance of the Complainant against the Opposite parties for alleged deficiency of services on the part of the Opposite parties in a consumer dispute of land sale matter by plotting and development. The present complaint case is at the behest of the complainant Mr Kapil Gupta alias Kappil Gupta of 23/5 Gariahat Road, PS: Rabindra Sarovar, Kolkata 700029 wherein the complaint petition as averred states that with an intention to purchase plot of land from the OP Company (OP1) namely Suchana Developers Pvt. Ltd. with Registered office at Nu – Mans, Pailan, PS Bishnupur, Kolkata 700104 represented by it’s Directors namely Mr Pradip Das (OP2) and Mr Rajib Gazi (OP3) and Mr. Ankan Ray Saphai (OP4) The complainant applied for purchase of a plot as per application dated 24.09.2013 and received an allotment letter dated 24.09.2013 in his favour for a total amount of Rs. 11,20,000/- (Rs. Eleven Lac Twenty Thousand) only by entering into a sales agreement notarized on 12.03.2015. The sale agreement was executed for a piece and parcel of plot no A10 and A12 admeasuring about 8 kotha (5760 S.Ft) at Ashirbad project of the OP1 company at Bhanderia, Kestekumari gram panchayat under mouza Gabberia, PS : Bishnupur, South 24 parganas, West Bengal. The total consideration money for the said plot being Rs. 11,20,000/- (Rs. Eleven Lac Twenty Thousand) only and in accordance with the said agreement the complainants paid Rs. 6,06,662/-(Rs. Six Lac Six Thousand Six Hundred & Sixty Two) only out of the consideration amount on diverse dates when the OP company was under obligation to complete the project within 18 months of the date of sale agreement. However the non-fulfillment of the promise by the OP1 company led the complainant to lodge this complainant with prayer for reliefs viz. (1) To refund Rs 6,06,62/- alongwith interest @ 18% as per Cl (3) of the sale agreement, Rs 1,00,000/- as compensation for harassment and mental agony caused by OPs and Litigation cost. It is evident from Postal track reports that the S/R in respect of the OPs could be duly completed. But the OPs never appeared or contested the case and hence the same was heard ex-parte when the Ld. Advocate of the complainant filed BNA and advanced their arguments on 25.04.2023. On perusal of the case record along with the copies of documents, it appears that the complainant intended to purchase the plot as narrated in complaint petition for a consideration amount of Rs.11,20,000/- (Rs. Eleven Lac Twenty Thousand) only for which an agreement for sale notarized on 12.09.2016 has been executed by and between the parties and payment of Rs 6,06,662/- (Rs. Six Lac Six Thousand Six Hundred & Sixty Two) only has been made paid by cheques by the complainant to the OPs. who acknowledged the same by issuing money receipts on various dates. Therefore, the complainant is a consumer as defined under the Consumer Protection Act, 1986. The complainant booked the plot of land for purchase and entered into an agreement on 12.09.2016 with the OPs.to that effect and the complainant paid Rs 6,06,662/- (Rs. Six Lac Six Thousand Six Hundred & Sixty Two) only out of total consideration amount of Rs.11,20,000/- (Rs. Eleven Lac Twenty Thousand) only. But even after expiry of stipulated time limit for delivery of possession, the plot of land was never handed over by the OPs. Follow ups were made but despite that the OPs. neither delivered possession of the said plot nor refunded the advanced amount. The complainant sent letter dated 19.03.2021 but OPs. did not return back the amount with bank interest which they received from the complainant. The complainant deposed that all the original documents viz. Allotment letter, Sale Agreement, Money receipts, no dues certificate from bank etc. were surrendered to the OP company representatives. The documents filed by the complainant have not been challenged by the other side for which they may be presumed as of unfettered evidentiary value.   Due considerations were given to the submissions made by the Ld. Advocate of the Complainant. After thorough scrutiny of the records, documents and exhibits in details, it appears from the copy of the sale agreement (Annexure serial running page 10 to 17) that it is undated and notarized on 12.03.2015. There is no mention of any schedule or any property details under any ‘schedule’ except some mention on the body of the said undated sale agreement. The sale agreement runs from page 1 to page 7 but the page 3 is missing though page mark running serial matches. Hence the vital ingredient in the exhibited sales agreement is absent, intentionally or unintentionally. From the statements, covenants and recital in the said undated sale agreement there is no utterance that the OPs are acting as a builder or a promoter. From the sales agreement, it may appear at some places that the OP company would oblige to arrange the necessary electricity line, water line, drainage/sewerage connection etc in the said project/scheme and the said expenses are to be borne proportionately by the intending purchaser / allottee  but on going through the contents of the complaint petition coupled with the recitals of agreement for sale dated 24.09.2013, it would appear that there is no iota of statement that the OP 1 Company was working as builders rather there is no such covenant present in the sale agreement which lends support to the same. Moreover on the contrary, point no (1) (2) (4) and (5) of the terms and conditions (running page 9) of the application form dated 24.09.2013 provides that :- Plots will be allotted on the basis of application reference number Preference in choice plots subject to availability Development of individual plots will be made only after respective registration Registration of the plots will be made on receiving full payments and on expiry of the tenure of the Scheme applied for In absence of any contra indication in sale agreement and in absence of any allotment letter as exhibit, the above clauses in terms and conditions are the sole document with evidentiary value that makes it quite clear that the OP 1 Company has only sold away the plot and did not participate in the matter of construction or super structures etc. It needs to be borne in mind that the sale of plot simpliciter is different from the plot sold by the builders or the promoters. We have also gone through the paragraphs of the sales agreement but find no advertisement in print media or otherwise or brochure or document that the complainant claimed having exhibited in support as an evidentiary value. From the entire factum of the case in hand, it is established to be a case of simply sale of plot of land by some persons on payment of a consideration money as the very nature of the all the transactions show that it was a sale simpliciter and so this complainant can not be covered under Consumer Protection Act 1986 or 2019. The Hon'ble Supreme Court reported in "Ganeshlal S/o Motilal Sahu vs. Shyam " in Civil Appeal No. 331 of 2007 decided on 26.09.2013 and was pleased to hold:- "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 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." Consequently, there is no merit complaint case and therefore, the same is dismissed. However there shall be no order as to cost.     Hence, it is ORDERED That the complaint case is dismissed being not maintainable before this commission. However, liberty is given to the complainant to approach the appropriate forum for redressal of his grievances. Let a copy of the order be sent / supplied free of cost to the parties concerned. The Final Order will be available in the following website www.confonet.nic.in.       Dictated and corrected by me.   (Partha Kumar Basu)           Member

 

[ SHRI ASHOKE KUMAR PAL]

PRESIDENT

[ SMT. SANGITA PAUL]

MEMBER

[ SHRI PARTHA KUMAR BASU]

MEMBER