20.....11.01.2022...

Today is fixed for passing necessary order in respect of M.A. No. 06/2020.

The petitioner / O.P. No. 1 filed the M.A. on 13.01.2020 challenging maintainability of the case on the following grounds :  That the O.P. / complainant purchased the flat from the O.P. No. 2 Santana Mondal on 11.06.2013 and she is not a developer. That the petitioner / O.P. No. 1 sold the said flat to the O.P. No. 2 who in turn sold the said flat to the O.P. / complainant. That there is no deficiency in service on the part of the petitioner. That the O.P. / complainant purchased a number of flat for investment and he is not a consumer. The petitioner has prayed for dismissal of the complaint on the ground of maintainability.

The O.P. / complainant has not filed any W/O but he has filed BNA. The petitioner / O.P. has also filed BNA.

The Ld. Advocate for the petitioner / O.P. submits that the case is not maintainable as the O.P. No. 1 is an unnecessary party and there is no development agreement between the parties. It is contended that the O.P. / complainant purchased the flat from the O.P. No. 2 and the case against the O.Ps. is not maintainable and the O.P. / petitioner can file case against the O.Ps. before the Civil Court for redressal. He draws our attention to a decision reported in 111 (2012) CPJ 315 (NC). It is contended that the O.P. / complainant purchased more than one flat for commercial purpose. 

In reply, the Ld. Advocate for the O.P. / complainant submits that the case is not quite maintainable. It is urged that the petitioner / O.P. No. 1 is trying to disturb the possession of the O.P. / complainant. He draws our attention to the decisions of the Hon’ble National Commission passed in CC No. 137/2010 dated 12.02.2015 and CC No. 1122/2018 dated 01.11.2019.

We have gone through the materials on record.

We have also considered the submission of both sides. On a careful consideration, we think that the decisions referred by both sides cannot be ignored but those are not very relevant to the present case. In the present case, the O.P. / complainant claimed his right on the strength of a sale deed dated 11.06.2013 execute by one Santana Mondal in favour of the O.P. / complainant. It is the allegation of the O.P. / complainant that the petitioner / O.P. No. 1 is not delivering possession of the flat and it is deficiency in service but the petitioner / O.P. has asserted that there is no deficiency in service on the part of the petitioner and the O.P. / complainant may get reliefs by filing proper suit in Civil Court. On perusal of materials on record, we find that the
O.P. / complainant asserted his right on the strength of a sale deed dated 11.06.2013. There is no agreement between the parties for giving any service. The sale deed is a transaction between the O.P. / complainant and the wife of the petitioner / O.P. No. 2. We think that there is no privity of contract between the O.P. / complainant and the wife of the petitioner / O.P. No. 2. Hence, we find valid substance in the submission of the Ld. Advocate for the petitioner / O.P. No. 1. We think that the complaint is not maintainable. The O.P. / complainant is at liberty to take recourse of Civil Court for redressal if so advised.  Hence, it is ordered that the M.A. be and the same is here by allowed on contest.

In the result, the Complaint case is also dismissed as not maintainable.