Dist Consumer Disputes Redressal Commission,
North 24 Parganas, Barasat.
c.c. No,.266/2016
Date of Filing Date of Admission Date of Disposal
29.04. 2016 09.05.2016 11. 01. 2024
Complainant/s: Somdev Chowdhury, Ghatak Para,Beside-
Eastern Tower’ Manirampore, Barrackpore,
Kolkata-700120.
Opposite Parties: Sri Manilal Sengupta, Flat No.HA-323/BG,
Sector-III, Salt Lake City, Kolkata-700097.
P R ES E NT:- Sri. Daman Prosad Biswas…………Presiden.
:- Sri. Abhijit Basu……………………..Member.
JUDGEMENT /FINAL ORDER
Complainant above named filed this complaint against the aforesaid O.P under Section 12 of the C.P. Act, 1986 praying for direction to the O.P to refund of access amount relating to 97 less Sq. ft. completion of work repairing replacement of all difficulties, compensation amounting to s. 20,000/-, litigation cost of Rs. 3,000/- and other reliefs.
He alleged that he and his wife Papia Chowdhury purchased the flat with consideration of Rs. 17, 50,000 in respect of 700 Sq. ft. Relating to the aforesaid purchase of flat one agreement dated 26.10.2014 was executed. Thereafter one registered sale deed was executed on 09.02.2015 and both the complainant got possession of the aforesaid flat. After few days complainant realized that area of the aforesaid flat is 613 Sq.ft. They also found that some works have not yet been completed. The complainant requested the O.P to remove the aforesaid difficulties but he did not pay any heed. Hence the complainant filed this case.
O.P files W.V and denied the entire allegations. He stated that he is retired person from private service and a senior citizen.. He had re-built his dilapidated ancestral property and he developed the same. He is not professional promoter and he has no intention to earn good amount profit . He admitted that on 09.02.20215 he executed the sale deed in fovour of the complainant and his wife after receipt of consideration amount. He prays for dismissal of the case.
Trial
During trial the complainant filed affidavit-in-chief.
O.P. No.1 also filed affidavit-in-chief.
Document
At the time of filing of this case complainant filed the following documents. These documents are verified at the time of hearing argument.
- Sale Deed dated 09.02.2015……….(Xerox copy)
- offer letter issued by O.P ( one sheet Xerox)
- was letter of possession dated 09.02.2015)
- Money receipt dated 31.01.2015 (one sheet Xerox)
- Plan of his floor (one sheet Xerox)?
- Authorization letter (one sheet xerox).
Contd.. to page No..2
C.C. No. 266/ 2016
:: 2 ::
BNA
Complainant filed BNA.
O.P also filed BNA.
Decision with Reasons
During hearing of argument Ld..Advocate for the O.P submits that he already filed one application for rejection of complaint on the ground of maintainability on 30.11.2022. We find that this commission vide order No.38 dated 04.01.2023 stated that aforesaid petition is mixed question of facts law, so this issue will be decided at the time of final disposal of the case. Accordingly, it is clear before us that said petition has not yet been disposed of on merit and same is pending. Ld. Advocate for the O.P submits that submits that the O.P sold that a portion of his house in favour of the complainant and his wife which was ready flat. The O.P is not the promoter he sold the ready made accommodation in favour of the complainant. So the present dispute is not maintainable before the Consumer Commission.
Ld. Advocate for the O.P further argued that as per sale deed complainant and his wife purchased the property in question but his wife is not the party of this case. In reply Ld. Advocate for the complainant submits that he has filed one letter of authorization. As per the said letter of authorization of his wife authorized him to lodge the complainant against the O.P.
In this contest we have carefully we have crefully gone through the decision of Hon’ble Consumer Disputes Redressal Commission in Consumer Case No. 178/2015 dated 02.02.2026 (Jayprakash Agarwal –vs-LIC of India). We find that Hon’ble NCDRC held that in the case of sale of ready flat complainant cannot be termed as consumer as envisaged U/s. (1)(d) of the Consumer Protection Act,1986. Hon’ble N.C.D.R.C held that in another decision in Miscellaneous application no. 4/15(RP/2615/2012) dated 23.03.2015) (Yelchuri Subrahamaniyam and two others –Vs- Buddi Sankara Babu and 4 others ) held that there is no evidence that the petitioner are working as builders, they are sellers simplicities’. No sale of plot simpliciter is different from the plot sold by the builders for the promoter and if there is any complaint the same would not be covered under the C.P.Act.
We have also carefully gone through the decision of the Hon’ble S.C.D. R.C., West Bengal in CC/549/2016 we find that Hon’ble S.C.D.R.C held that opposite party is a vendor only relating to the said property but not a developer at all. Hon’ble S.C.D.R.C further held that it must be borne in mind that the sale of plot simplicitor is different from the flat sold by the builders or the promoters. So, question of housing construction does not arise in this case. Hon’ble S.C.D.R.C further held that flat simplicitor cannot come within the jurisdiction of this Commission. In the present case we find that complainant alleged that O.P was agreed to sale a readymade portion of his house in favour of the complainant and his wife. As per agreement O.P executed the sale deed and handed over the possession of the property. On careful perusal of the record we find that O.P is not the developer and he sold the aforesaid portion of the building in favour of the complainant and his wife. It is not the housing construction developed by the O.P as promoter.
Having considered the material on record it is clear before us that O.P sold the portion of his building in favour of the complainant and his wife as a sale simplicitor.
Considering the entire matter we find that as the O.P. is not a developer and it is not the case of a housing construction and O.P is a sale simplicitor so we find that the
Contd.. to page No..2
JUDGEMENT /FINAL ORDER
BNA
present dispute which has arisen in between the complainant and the opposite will not
come under the Consumer Protection Act and complainant and his wife are not consumer under the C.P.Act. Accordingly, we find that the present case is not maintainable in view of the aforesaid decision.
In the result, the present case fails.
Hence,
It is ordered,
that the present case vide No.C.C. 266/2016 be and the same is dismissed as not maintainable. No order is passed in respect of the cost.
Let a plain copy of this order be given to the parties free of cost as per CPR.
Dictated and corrected by me.
President
Member President
