HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This complaint case has been filed under section 47 of the Consumer Protection Act, 2019 by the complainants namely Sutirtha Gupta and Mrs. Arundhati Gupta against the opposite parties on the allegation of deficiency of services. The complainants have filed the present complaint petition praying for the following reliefs :-
“a) To admit the complaint and to call for the records papers documents from the Respondent / Opposite Parties and each one of them for fair trial and adjudication of the case and claim of the Complainants / Petitioners in equity and in accordance with law.
b) To issue Notice to Show-Cause by the Respondent / Opposite Parties as to why the said rectification of flaws, shall not be rectified by the OPs upon direction by the Ld. Commission to execute and complete the rectification works without defect within such time and such date as may be directed in order to mitigate the hardships of this Complainants / Petitioners and to possession handover of the said Basement Car Parking space bearing No.BCPKP108 completely and possession.
c) Injunction / Direction rectify the defects to and handover the Flat complete in all respect as per the Agreement and Deed within a certain time;
d) Interim Order;
e) Recovery of loss and damage, compensation, expenses, legal charges etc.
f) Such other or further Order/s and relief/s as may be deemed fit and proper.”
2. Heard the Learned Advocate appearing for the complainants on the point of admission at length and in full.
3. Having heard the Learned Advocate appearing for the complainants and on careful perusal of the record including the petition of complaint and Annexures it appears to me that the complainants in the petition of complaint has clearly and categorically stated that the opposite parties had given an advertisement regarding nomination transfer of a ready flat of a residential building project ‘GODREJ PRAKRITI’ of 187 F/1 B.T. Road, Sodepur, Kolkata, P.S. Khardah, P.O. Sukhchar and with a view to settle in Kolkata with family, the complainants attracted by the advertisement and they were being jointly desirous of acquiring the Residential Unit No. 1804 on the 18th floor of the Tower named KAPILASH (Block ‘K’) of the complex known as ‘GODREJ PRAKRITI’ having a super built up area of 1101 Sq.ft. (equivalent to 102.28 sq. mtrs and together with the undivided proportionate share in the common parts, portions, areas, facilities and amenities of the said Tower together with right to use of one Basement Car Parking Space in the complex as mentioned in the schedule of the petition of complaint. As such, the complainants entered into an agreement with the opposite parties on 14.01.2021 and booked the said unit.
4. Annexure C-1 is the agreement for sale executed between the complainants and the opposite parties dated 26.11.2021 which also discloses that the complainants entered into an agreement with the opposite parties to purchase a ready flat as mentioned in the schedule of the petition of complaint.
5. Annexure C-2 is the Deed of Conveyance being deed No. 1-1424/2022 discloses that the complainants purchased the said flat through the deed of conveyance and the consideration money was at Rs.49,81,000/-.
6. Under this facts and circumstances it appears to me that the agreement for sale was executed for sale of a ready flat and the ready flat was sold away to the complainants. There is no housing construction or development work involved in the matter. Therefore, the case is related to simplicitor sale. This is nothing but an agreement for sale and sale in respect of a ready flat which relates to simplicitor sale. Therefore, the complainants cannot be termed as ‘consumer’ under section 2(7) of the Consumer Protection Act, 2019 and the opposite parties are not a service provider. The relationship between the complainants and the opposite parties is simply termed as purchaser and seller. The dispute is not a consumer dispute. The complainants are not availed any service as per the provision of section 2(42) of the Consumer Protection Act, 2019.
7. In Ganeshlal Vs. Shyam reported in (2014) 14 SCC 773, Hon’ble Supreme Court has observed that :-
“Where a sale of plot of land simplicitor is concerned, and if there is any complaint, the same would not be covered under the Consumer Protection Act.”
8. In Brig. Davinder Singh Grewal and Anr. –Vs- R.S. Real Estate and Anr. reported in Volume III (2017) CPJ 304 (NC) Hon’ble National Commission has observed thus :
“In the instant case, it is manifestly clear that the agreement entered between the parties related to purchase of agricultural land, for which payment was made by the complainants to the OP sellers and a registered agreement as well as sale-deed were also executed. The OPs were supposed to provide a pucca passage to the said land and to deliver the possession after 42 months of the agreement. It is clear that the said activity does not fall under any item in the definition of ‘service’ as per Section 2(0) of the Act.”
9. In view of the above decisions and looking to the contents of the Deed of Agreement for Sale dated 26/11/2021 and Deed of Conveyance vide Deed No. I-1424/2022 dated 28.01.2022 executed between the parties, it appears that the transactions between the parties is simplicitor sale transaction. Therefore, the complainants are not a ‘consumer’ u/s 2(7) and the opposite parties are not a service provider u/s 2(6) and 2(42) of the Consumer Protection Act, 2019.
10. Another aspect of this case is that the consideration money was paid by the complainants to the opposite parties amounting to Rs.41,81,000/-. This fact proves that this petition of complaint is undervalued and this Commission has got no jurisdiction to try this case.
11. Another aspect of this case is that there are two complainants in the present complaint case. But this case has been filed by the complainants and this petition of complainant only bears the signature of only one complainant i.e. Mr. Sutirtha Gupta and Mrs. Arundhati Gupta, another complainant did not sign in the petition of complainant.
12. Under this facts and circumstances, I am inclined to hold that the complaint case is not maintainable in law and is liable to be dismissed.
13. In the result, the complaint case be and the same is dismissed without being admitted.
14. The complaint case is thus disposed of accordingly.
