IMPORTANT POINT
Suit for Specific performance of agreement for sale not maintainable before Consumer Fora/Commission.

ORDER

Kumkum Rani, President.—Disposal of Preliminary Objections (paper No. 35) filed by the opposite party regarding maintainability of consumer complaint.

Preliminary objection (paper No. 35) alongwith affidavit has been submitted on behalf of the opposite party alleging that in para No. 5 of the complaint case the complainant has alleged agreement for sale dated 26.02.2011 is not sufficiently stamped and not registered as per provisions of the Registration Act, hence the said agreement is not admissible and enforceable and on the basis of unregistered and insufficiently stamped agreement, the complainant has no legal right to enforce the same for execution of the sale deed under law, hence the said complaint is not legally maintainable. It is further alleged in the preliminary objection that the alleged dispute under the complaint is regarding enforcement of the agreement for which suit for specific performance of the agreement is maintainable. But to frustrate the mandatory provisions of the Indian Stamp Act, Indian Registration Act, Court Fees Act and Specific Relief Act the present complaint is being filed. In the present matter, there is no deficiency in service, therefore, the consumer complaint has no jurisdiction to hear and decide the alleged dispute, hence the complaint is not maintainable and it is liable to be dismissed at preliminary stage on the basis of not being maintainable before this Commission.

2. Its reply (paper No. 38) has been submitted on behalf of the complainant without any counter affidavit. It is alleged in the reply that the Registration Act, 1908 does not make it mandatory to register “Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.” An agreement for sale or contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. An agreement for sale is merely a document creating a right to obtain another document of sale on fulfillment of terms and conditions specified therein and the ownership will be transferred to the buyer only on the execution of sale deed by the seller. The buyer obtains only a right to get the sale deed executed in his favour. The agreement for sale is not compulsorily registrable under Section 17(1A) of the Registration Act and thus does not come within the mischief of proviso of Section 49 in as much as the provisions of Section 53A of the Transfer of Property Act were not attracted. It is further averred that as per Section 53A of Transfer of Property Act and the Indian Stamp Act which have been referred to above and all these provisions were considered in detail by Punjab and Haryana High Court in Sukhwinder Kaur case (supra) wherein the learned Judge held that agreement itself does not create any right, title to the property, but it is the sale deed, which when executed will create right, title and interest in the property.

It is further alleged in the reply that in 1993, the Hon’ble Supreme Court ruled in favour of M.K. Gupta in his case against the Lucknow Development Authority for not delivering his flat on time. This landmark judgment brought housing construction under the purview of the Consumer Protection Act, 1986. The Hon’ble Supreme Court ruled that “the purpose of widening the definition (of service) is to include in it not only the day to day buying and selling activity undertaken by a common man, but even activities that are otherwise not commercial in nature, yet partake of a character in which some benefit is conferred on the consumer. When the possession of the property is not given within the stipulated period, the delay is denial of service.

In the reply, it is also averred that the compl