Order No.10                             Date-21.09.2022

            Record is taken up for order in connection with Miscellaneous Application dated 04.01.2022 filed by the OP being MA No. 07/2022 thereby challenging the maintainability of the consumer case.

            Having heard both sides and on perusal of the complaint petition, it appears to us that complainants have filed the instant complaint U/ss. 34/35 of the CP Act, 2019 against the OP/Developer on the allegation of deficiency in service as well as unfair trade practice in a dispute of housing construction of a flat measuring about 1200 sq. ft. on the 2^nd floor of the proposed building and one car parking space measuring about 100 sq. ft. at a total consideration of Rs.  69,60,000/- and Rs.  2,75,000/- respective against two  separate Agreement for Sale dated 01.01.2013 and 30.01.2014 were executed between the parties in respect of the flat and car parking space. Complainants have paid Rs. 24,25,000/-as part consideration amount towards the total consideration amount.

            Fact remains that the OP was under obligation to deliver physical possession of the flat and car parking space within 18 months from the date of agreement but the OP/Developer has failed to keep his promise. In that perspective, the complainants claimed refund Rs.  96,94,000/- and the OP refund Rs.  18,000/- to the complainants on 24.07.2019 and 02.09.2019 by cash and cheque.

            In this back drop, the OP has prayed for dismissal of the consumer case on the ground that after accepting a part of refund amount, the complainants ceased to be a consumer as per, CP Act, 2019. It is now well settled that once the complainants have claimed refund amount, they ceased to be consumers”.

            Reference in this regard may be made to the decision of the Hon’ble SCDRC WB (Sri Supratim Roy Chowdhury vs. Sri Suman Kayal & Ors.) passed in CC No. 679/2017.

            Keeping in view of the facts of the present case and extensive law referred to above, we are of the view that after claiming refund and accepting Rs. 18,00,000/- from the OP/Developer the complainants ceased to be consumes as per Consumer Protection Act, 2019.

            In view of the above circumstances, the Miscellaneous Application dated 04.01.2022 is allowed on contest but without any cost.

            Thus, MA being No. 07/2022 is disposed of.

            Consequently, the instant consumer complaint is dismissed being not maintainable.

            However, this order will not prevent the complainants to approach the appropriate court/ commission in accordance with law.