MR. SHYAMAL KUMAR GHOSH, MEMBER

The instant appeal  has been filed by the Appellants/Complainants challenging the order impugned dated 02.02.2022 passed by Ld. DCDRC Unit-III, Kolkata in connection with CC case being No. CC/629/2021 wherefrom  the Ld. Trial Commission has been pleased to hold that apparently  as the transaction was a simplicitor sale of incomplete first floor,  the complainants cannot be a consumer under  provision of Consumer Protection Act and thus the present complaint  is not maintainable. In pursuant to the said observation, the CC case being No. CC/629/2021 has been disposed of  being not admitted.

Being aggrieved with  such order the complainants /appellants  have preferred the instant appeal praying for  setting aside the order impugned dated 02.02.2022 passed by the Ld. Trial Commission.

Ld. Advocate appearing for the appellants/complainants has argued that  the Ld. Trial Commission has failed to apply the judicial mind  and has taken the observation of sale simplicitor  and accordingly the Ld. Trial Commission has been pleased to dismiss the aforesaid CC case.  There is a clear mistake, error and irregularity  in passing the order impugned  and accordingly the Ld. Advocate has prayed for setting aside the order impugned dated 02.02.2022.

Ld. Advocate appearing for the OP/Respondent  has argued that this case is  purely an example of sale simplicitor and as such it does not come  well within the purview of the Consumer Protection Act. There is no such error mistake or irregularity in passing  the order impugned dated 02.02.2022. Accordingly Ld. Advocate has prayed for dismissal of the appeal.

We have the Ld. Advocates appearing for both the parties at length and in full.

We have considered the submissions of the Ld. Advocates for both sides.

We have carefully gone through the materials available on the record.

The final hearing has been concluded.

Upon careful perusal of the agreement for sale  dated  22.06.2011 , it appears to us that  the vendor/Shri Biswajit Biswas /Respondent herein are in peaceful and khas possession of the aforesaid entire property including the incomplete and unfinished first floor of the instant building  at Municipal Premises being no. 191 corresponding to Postal Premises being no. G-37, Baghajatin Pally (Colony), Kolkata- 700 086.

The  vendor/Shri Biswajit Biswas /Respondent herein was facing paucity of fund to complete the said first floor having only the pillars and as such  the vendor intended to sell the said first floor  after finishing the same  in all respect to any purchaser who would  to complete the said entire first floor at his own cost.

Upon careful perusal of the terms and conditions clearly enumerated in paragraph no. 10  at the page no. 5 of the aforesaid agreement for sale , it appears to us that  the purchasers/complainants/appellants herein have to complete the said first floor in all respect without damaging the structural condition of the building and all remaining work for completion of the said first floor has to be completed by the purchasers.

In pursuant to the above discussions, it is evident that all responsibilities and liabilities have been imposed upon the complainant in respect of completion of construction work of the aforesaid flat in habitable condition. There is no such responsibility to complete the flat in habitable condition at the behest of the developer.  So, there is no story of development work by the developer and as such there is no hesitation to hold that it is a case of simplicitor sale of incomplete structure/flat  which does not come will within the purview of the Consumer Protection Act and as such the complainants are not to be treated as ‘consumers’within  the purview of the C.P. Act.

According to above observations,  we hold that there is no such wrong, error or any illegality  and irregularity in passing the order impugned dated 02.02.2022 passed by the Ld. DCDRC, Kolkata Unit –III and as such there is no necessity to interfere with the order impugned.  

Accordingly, we are constrained to affirm the order impugned dated 02.02.2022  and dismiss the instant appeal filed by the Appellants/Complainants without any order as to costs.

The instant appeal is thus disposed of as per above observation.

Note accordingly.

Let a copy of this order be transmitted to the Ld. Trail Commission for compliance and for taking necessary action.