AND

CC/221/2021​

1. Mr. Tanweer Ahmed Khan

          S/o Md. Sayeed Khan, Premises No. 6/14/H/7, Nilmoni Halder Lane, P.S. - New Market, Kolkata - 700013.

2. Mr. Junaid Ahmed Khan

          S/o Md. Sayeed Khan, Premises No. 6/14/H/7, Nilmoni Halder Lane, P.S. - New Market, Kolkata - 700013.

                                                                                                                            ……..Complainants

                                                                                           Vs.

1. Merlin Projects Ltd.

          22, Prince Anwar Shah Road, Kolkata - 700033.

2. The General Manager (Sales, Marketing and Customer Service), Merlin Projects Limited,

          22, Prince Anwar Shah Road, Kolkata - 700033.

                                                                                                      ………Opposite parties

PRESENT:Sri Ved Sharma, Ld.Advocate for the Complainant Nos. 1 and 2

                Sri Saptarshi Datta, Ld.Advoate for the Opposit Party Nos. 1 and 2.

Dated : 25 May 2023

As the facts and question of law involved and the reliefs prayed for in both the Complainant cases are similar/identical and against the same opposite parties except for minor variation in flat numbers, consideration amount and amount of earnest money paid etc. which are summarized in the table hereunder in paragraph no.11, both the Complaint cases are being disposed of by this common judgment.

In Complaint case no. 221/2021, the complainants state as follows :-

1) The complainants booked one Apartment/Flat being Flat no.3E situated on the third floor of Tower no.1, MERLIN LEGACY measuring about 1190 square feet (built up area) along with an open car parking space morefully described in the schedule of the complaint application and the complainants entered into an Agreement for Sale dated 23.12.2020 with the opposite party no.1 to purchase the said Apartment/Flat along with open Car Parking space at a consideration of Rs.85,50,000/- (Rupees eighty five lakhs fifty thousand) only.

2) Accordingly, the complainants paid a sum of Rs.20,50,000/-(Rupees twenty lakhs fifty thousand) only on different dates through five cheques drawn on State Bank of India, New Market Branch, Kolkata. The opposite parties received the amount and acknowledged by issuing receipts.

3) The complainants applied loan for sum of Rs.68,00,000/- (Rupees sixty eight lakhs) only but the State Bank of India, RACPC branch granted loan for sum of  Rs.39,35,506/- (Rupees thirty nine lakhs thirty five thousand five hundred and six) only.

4) In Complaint Case No. 222/2021, the complainants entered into an Agreement for Sale dated 23.12.2020 with the opposite party no.1 in respect of Apartment/Flat no.3C, 3^rd Floor, Tower no.-1, area about 972 square feet (built-up area) along with open car parking space on the ground floor for a consideration of
Rs.73,02,636/- (Rupees seventy three lakhs two thousand six hundred thirty six) only out of which the complainants paid a sum of Rs.8,75,000/- (Rupees eight lakhs seventy five thousand) only to the opposite parties by two cheques drawn on United Bank of India, Mechuabazar Branch.

5) In both cases, it is stated that at the time of execution of the Agreement for Sale dated 23.12.2020, the said flat was in a “ready to sell” condition. Therefore the payment schedule mentioned in schedule ‘C’ of the Agreement for Sale dated 23.12.2020 has no application and the opposite parties did not receive payments from the complainants in terms of the payment schedule of the Agreement for Sale dated 23.12.2020. It is further submitted that the clause 7.1 of the Agreement for Sale dated 23.12.2020 reveals that the promoter/the opposite party no.1 herein, had already obtained Completion Certificate for the entire project namely ‘MERLIN LEGACY’ from the Kolkata Municipal Corporation on 03.10.2018 and the Apartments/Flats were ready for delivery of  possession and in “ready to sell” condition.

6) The complainants visited the office of the opposite parties time to time and requested them to allow one month time more for payment of rest consideration amount of the flats which was allowed by the authorized persons of the opposite party no.1.

7) All on a sudden the complainants received notices dated 09.09.2021 of cancellation of Agreements for Sale dated 23.12.2020 from the opposite parties. The complainants were asked to collect the refund from their office within 10 days from the date of receipt of the aforesaid notice dated 09.09.2021.

8) According to the complainants the opposite parties in violation of clause 9.3(ii) of the Agreement for Sale dated 23.12.2020, without serving 30 days written notice arbitrarily and unilaterally cancelled the said Agreement as such the same is not binding upon the complainants.

9) The opposite parties are involved in unfair trade practice which is evident from their conduct as they have stated in their termination notice dated 09.09.2021 that failing to contact the ‘Customer Care’ within the stipulated time, the refund shall stand forfeited. It was the duty of the opposite parties to refund the money back to the complainants in terms of clause 9.3(ii) of the Agreement for Sale dated 23.12.2020.

10) According to the complainants, the opposite parties are liable for deficiency in service. It is alleged by the complainants that such deficiency in service and unfair trade practice of opposite parties, caused deep mental agony and harassment to them. Accordingly, the complainants pray for a direction upon the opposite parties to withdraw/rescind   the cancellation notice dated 09.09.2021 and to handover the flats in question along with open car parking space on the ground floor upon receipt of the balance consideration amount and/or to refund the amount already paid by the complainants along with interest @ 18 % per annum till realization interalia on other reliefs.

11) The details of the Apartment/Flat allotted to the complainants and other relevant details of both cases are given in the table below :-

The facts narrated by the opposite parties in respect of both the Complaint Cases being  nos. CC/221/2021 and CC/222/2021 in their written version and evidence are as follows :-

a) The complainants have suppressed gross material facts in both cases in their Complaint Applications.

 b) The opposite party no.1 being a well known reputed real estate company had undertaken and completed a project under the name and style “MERLIN LEGACY” at 9A, Bechulal Road, Zamindar Para, Paddapukur, P.S. Entally, Kolkata-700 014. The project was complete in all respect. The opposite party no.1 obtained Completion Certificate of the said project from the Kolkata Municipal Corporation on 03.10.2018.

c) As the flats (mentioned above) were fully ready in all respects for possession, it was interalia agreed between the parties that prior to execution of the Agreement for Sale, the complainants are required to pay 10 % of the total sale consideration and the balance 90 % is required to be paid on demand prior to possession of the flats being handed over to the complainants. It was also agreed between the parties that in the event of failure on the part of the complainants to make payment of the balance 90 % of the sale consideration on demand, the opposite party no.1 shall be at liberty to cancel the booking/Agreement for Sale dated 23.12.2020.

d) In both cases, the complainants booked their respective Flat/Apartment on 15.09.2020.

e) The complainants of CC/221/2021, on 15.09.2020, at the time of booking Flat/Apartment no. 3E along with open car parking space paid Rs.2,00,000/- (Rupees two lakhs) only against proper receipt issued by the opposite parties. Subsequently, on demand dated 09.10.2020, the complainants further paid a sum of Rs.6,75,000/- (Rupees six lakhs seventy five thousand) only to opposite party no.1 against proper receipt. On 21.12.2020 upon receiving the aforementioned amount, opposite party no.1 issued a letter of allotment of the Flat/Apartment no.3E which was followed by execution of Agreement for Sale dated 23.12.2020 between the parties.

            Thereafter, the opposite party no.1 vide letter dated 26.12.2020 raised demand for the balance 90 % of the sale consideration but the complainant did not pay any heed to it. A reminder letter was sent to them on 03.02.2021 which was followed by further reminder letter dated 02.04.2021 on the same demand but to no effect.

            The complainant no.1 of CC 221/2021, on 24.06.2021, requested the opposite parties to allow them time till the end of July, 2021 for payment of rest consideration amount of the flat/Apartment no.3E. He gave the same assurance being brother of complainants of CC/222/2021 in respect of Flat/Apartment no.3C and stated in writing that after the month of July, 2021 the opposite parties will proceed  as per Agreement for Sale dated 23.12.2020.

            In good faith the opposite parties allowed time till the end of July, 2021 for the rest payment.

            On 26.07.2021 the complainants forwarded via whatsapp a Home Loan Sanction letter dated 29.05.2021 of State Bank of India for sum of Rs.38,00,000/- (Rupees thirty eight lakhs) only. The complainants informed the opposite parties that the said loan has not been disbursed by State Bank of India as they are yet to pay their portion of the Sale Consideration amount of the Flat/Apartment no.3E. On the same date, the complainants of CC/221/2021 made part payment to opposite party no.1 a sum of Rs.13,00,000/- (Rupees thirteen lakhs) only vide cheque no.543701 and no.543702 drawn on State Bank of India, New Market Branch. The cheque no.543704 for sum of Rs.1,00,000/- (Rupees one lakhs) only issued by the complainants drawn on same bank was dishonored and could not be encashed.

            On the same date, i.e. on 26.07.2021, the same complainant no.1 in writing prayed for extension of time till end of August, 2021 for making payment of entire due amount of consideration of the flat but failed to do so. Out of total consideration of Rs.85,52,450/- (Rupees eighty five lakhs fifty two thousand four hundred fifty) only a sum of Rs.21,75,000/- (Rupees twenty one lakhs seventy five thousand) only paid by the complainants despite repeated demands. Thereafter finding no other alternative the opposite party no.1 cancelled/terminated the booking/Agreement for Sale dated 23.12.2020 vide letter dated 09.09.2021.

f) The complainants of  CC/222/2021, on 15.09.2020, at the time of booking Flat/Apartment no.3C along with open car parking space paid a sum of Rs.7,50,000/- (Rupees seven lakhs fifty thousand) only by two cheques against receipts issued by opposite party no.1. On 21.12.2020, upon receiving the aforesaid amount, opposite party no.1 issued a letter of allotment of the Flat/Apartment no.3C which was followed by execution of Agreement for Sale dated 23.12.2020 between the parties.

Thereafter opposite party no.1 vide letter dated 26.12.2020 raised demand for the entire due consideration amount of the Flat/Apartment but the complainants did not pay any heed to it. A reminder letter dated 03.02.2021 was sent to them which was followed by another reminder letter dated 02.04.2021 on the same demand, but to no effect.

On 24.06.2021, the complainant no.1 of CC/221/2021, Tanveer Ahamed Khan being the brother of the complainants requested the opposite parties to allow time for payment of the remaining amount in respect of Flat no.3E and Flat no.3C till the end of July, 2021 and stated in writing that after the month of July, 2021 the opposite parties will proceed as per Agreement for Sale dated 23.12.2020 and the said request was honoured by the opposite party no.1 in good faith.

The complainant informed that they have applied for Home Loan but the same was not yet sanctioned by the Bank.

The same complainant no.1 again visited the office of the opposite party no.1 and vide letter dated 02.08.2021 again prayed for extension of time to pay the rest consideration amount of the flats within the month of September, 2021 as the Home Loan was yet to be sanctioned by the State Bank of India. The opposite party no.1 was not agreeable to grant further time beyond the month of August, 2021 to the complainant for payment of rest consideration amount of both flats and made it clear to the complainants that in the event of failure to make payment of balance amount by the end of August, 2021, they shall be constrained to terminate/cancel the booking of the Flats.

g) According to the opposite parties also the Flats/Apartments in question were ready in all respect including its ‘Completion Certificate’ of the Authority concerned prior to booking and execution of Agreement for Sale dated 23.12.2020. Therefore, the payment schedule mentioned in the Agreement for Sale dated 23.12.2020 was not applicable apropos the complainants of both cases.

h) The opposite parties further state that there is no question of deficiency in service or unfair trade practice, considering the entire circumstances narrated above.

Therefore, the case of the complainants are liable to be rejected.

Considering the rival pleadings of both parties in both cases the following issues are framed:-

1. Are the complainants consumers in terms of Consumer Protection Act, 2019?
2. Have the complainants any cause of action to file the case?
3. Are the opposite parties liable for deficiency of service?
4. Are the opposite parties involved in unfair trade practice as alleged?
5. Are the complainants entitled to reliefs as claimed for?
6. To what other relief or reliefs if any, the complainants are entitled to?

                                            DECISIONS WITH REASONS

Evidence and Reply to questionnaire was filed by the complainants as well as by the opposite parties by way of affidavits broadly on the lines of averments made in their respective pleadings in both complaint cases.

The complainants in both cases deliberately withheld the original Agreement for sale dated 23.12.2020 and other documents without any explanation though they annexed photo copies of following documents with their affidavit in chief:-

                  Complaint Case no. 221/2021

i)Photo copy of advertisement of Merlin Legacy.

ii)Photo copy of Agreement for Sale dated 23.12.2020.

iii)Photo copy of Bank statement.

iv)Photo copy of Loan Sanction letter dated 29.05.2021 of State Bank of India (two pages).

v)Photo copy of letter dated 09.09.2021 of cancellation of booking by Merlin Projects Ltd.

vi)Photo copy of reply dated 13.09.2021 by the complainants.

Complaint Case no. 222/2021

1. Photo copy of advertisement of Merlin Legacy.
2. Photo copy of Agreement for Sale dated 23.12.2020.
3. Photo copy of Bank statement.
4. Photo copy of letter dated 09.09.2021 of cancellation of booking by Merlin Projects Ltd.
5. Photo copy of reply dated 13.09.2021 by the complainants.

The opposite parties have not annexed or proved any document in their evidence in the form of Affidavit in Chief.

Issue Nos. 1 to 6

                      For the sake of brevity and convenience all the issues are taken up together for consideration and discussion.

                     In both cases, the entire case of the complainants is based on an Agreement for Sale dated  23.12.2020.

                         At the very outset we would like to point out that the original Agreement for Sale dated 23.12.2020 has been withheld by the complainants in both cases without any explanation whatsoever in their evidence filed in the form of affidavit.

The statute, prescribes in Section 38(9) of the Consumer Protection Act, 2019 as follows:-

“For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-

1. …………………
2. requiring the discovery and production of any document or other material object as evidence;
3. receiving of evidence on affidavits;
4. …………………
5. …………………

etc………………….”

It is needless to say that though Evidence Act is not required to be followed strictly in proceedings  before Consumer Commissions but the basic principles of Evidence Act is required to be followed so that there cannot be any violation of principle of natural justice.

It is rudimentary principle of jurisprudence that documentary evidence will always get preponderance over the oral submissions because it is well known axiom of law that ‘men may tell lies but the documents cannot’.

Section 22 of the Indian Evidence Act specifically provides that oral admission as to the content of document is not admissible unless and until it is shown that the concerned party is entitled to give secondary evidence in the case.

In both the cases the complainants did not give any evidence for which they can claim entitlement of producing secondary evidence to prove their case. Therefore, to admit there was an Agreement for Sale dated 23.12.2020 does not in any way prove the terms of the said agreement.

On scrutiny of records, it appear that though opportunity was given, but both parties had not file any written argument in this case.

Ld. Advocate for the complainants in both cases advanced oral argument on two fold grounds: (a) the payment plan mentioned in the Agreement for Sale dated 23.12.2020 is not applicable and binding upon the complainants as at the time of booking and execution of the Agreement dated 23.12.2020, the construction of the Flats/Apartments of both cases were totally complete and ready for handing over possession. It was vehemently argued that time is not the essence of the contract.

 (b) As opposite parties have violated the terms and conditions mentioned in Clause 9.3 (ii), of the Agreement for Sale, the notice of termination of booking and Agreement for sale dated 23.12.2020  has no legal effect.

The complainant referred to IREO Grace Realtech (P) Ltd- vs. Abhishek Khanna & others of Hon’ble Apex Court and argued that the clause of payment schedule in the Agreement for sale is one sided and entirely loaded in favour of the opposite parties and against the complainants. This is clearly suggests Unfair Trade Practice by the opposite parties and Commission has ample jurisdiction to declare the Contractual term as Unfair Trade Practice and not binding upon the complainants. It was also argued that Hon’ble Apex Court in the abovementioned judgment observed that a Developer cannot compel the Apartment buyers to be bound by one sided contractual terms contained in the Apartment buyer’s Agreement.

                      In reply Ld. Advocate for the opposite parties argued that whether time is essence of a Contract is a question of fact and the real test is intention of the parties to the contract. It depends upon facts and circumstances of each case.

It is further argued that the Flats/Apartments were ready in all respect as Completion Certificate of the Project and Construction was issued on 03.10.2018 by the Kolkata Municipal Corporation prior to the booking of flats and execution of the Agreement for sale by the complainants. Both flats were in ready condition for sale and to hand over possession on payment of full consideration amount of the Flats/Apartment on the date of execution of Agreement for Sale i.e. on 23.12.2020.  Therefore, the First Party of the Agreement i.e. opposite party no.1 herein has not executed the Agreement for sale on 23.12.2020 as a builder/developer but as a seller simpliciter of the Flats/Apartments of the Project. So, the complainants have not purchased any service from the opposite parties and they not being Consumers under the Act, the Complaints of the cases fail and liable to be rejected.

On scrutiny of the records it appear that the facts of IREO Grace Realtech (P) Ltd- Vs. Abhishek Khanna & others  is  apparently distinguishable from the facts of this case.

In Complaint Case no. 221/2021 and Complaint Case no. 222/2021 all the four complainants are brothers.

On scrutiny of the materials and evidences of both parties of both records the following facts which are stated by the complainants in evidence are not denied by the opposite parties.

1. In Complaint Case no. 221/2021, the complainants booked a Flat No.3E, 3^rd Floor, Tower No.1, area measuring about 1190 Square feet built up area along with open car parking space on the ground floor at a consideration of Rs.85,50,000/-(Rupees Eighty five lakhs fifty thousand) only at ‘MERLIN LEGACY’, 9A, Bechulal Road, P.S.-Entally, Kolkata-700046.

In Complaint Case no. 222/2021 the complainants booked a Flat No.3C, 3^rd Floor, Tower No.1, area measuring about 972 Square feet built up area along with open car parking space on the ground floor at a consideration of Rs.73,02,636/-(Rupees seventy three lakhs two thousand six hundred thirty six) only at ‘MERLIN LEGACY’, 9A, Bechulal Road, P.S.-Entally, Kolkata-700046.

2. The complainants made part payment of the consideration amount in respect of both flats.
3. In Complaint Case no. 221/2021, the complainants are granted loan by State Bank of India, RACPC branch to the tune of Rs.39,35,506/-(Rupees thirty nine lakhs thirty five thousand five hundred six) only.

In Complaint Case no. 222/2021 though complainants stated that they have applied for loan but no papers of bank loan submitted.

4. In both cases, the opposite parties issued letters on 09.09.2021 of cancellation of Agreement for sale and booking of flat.
5. In both cases, the complainants gave reply vide letter dated 13.09.2021.
6. During cross examination which was filed by the opposite parties in form of written questionnaires, the complainants in their reply on affidavits unequivocally stated that they have not taken any plea of the Covid-19 pandemic situation as a ground for non payment of rest consideration amount of the flats.
7. Both parties submission is that the complainants booked the flats on 15.09.2020  and on different dates made total part payment a sum of Rs.20,50,000/-(Rupees twenty lakhs fifty thousand) only for flat no.3E and made part payment a sum of RS.8,50,000/(Rupees eight lakhs fifty thousand) only by two cheques for flat no.3C. (The opposite parties state that the complainants paid Rs.7,50,000/- (Rupees seven lakhs fifty thousand) only. On 21.12.2020 the opposite party no.1 issued letters of allotment in respect of the flats which was followed by execution of Agreement for sale dated 23.12.2020.

                                      On 23.12.2020, the flats were ready in all respect including Completion Certificate dated 03.10.2018 of the project issued by the Kolkata Municipal Corporation.

8. The opposite parties in their evidence in the form of affidavit in chief stated that the opposite party no.1 vide letter dated 26.12.2020 raised demand in respect of entire due consideration amount of both flats as it were ready for sale and handing over possession. This demand followed by similar demand letters dated 03.02.2021 and 02.04.2021. On 26.07.2021, the complainant via whatsapp sent a home loan sanction letter dated 29.05.2021 of RACPC branch of State Bank of India for a sum of Rs. 39,35,506/-(Rupees thirty nine lakhs thirty five thousand five hundred six) only in respect of Flat No.3E, of Complaint Case no.  221/2021. Thereafter the complainant visited the opposite party’s office on 24.06.2021 and verbally as well as in writing requested to extend time till the end of July, 2021 for making payment of rest consideration of sale amount of both flats and also stated that in the event of failure of payment by them, the opposite parties would be at liberty to take steps as per agreed terms. On 26.07.2021 the complainant again visited the office of opposite party no.1 and handed over three cheques for making payment of Flat No.3E only and requested vide letter dated 26.07.2021 to extend time for rest payment of sale consideration of both flats till August 2021. No payment was made in respect of Flat no.3C by the complainants. No questionnaire was submitted against this evidence of opposite parties by the complainants and the same remained unrebutted and unchallenged in cross examination.

Now, in the consequences, let us consider what is a Complaint, who can be a Complainant and Consumer in terms of Consumer Protection Act, 2019.

Section 2(6) of the Act defines “Complaint” as follows:-

“Complaint” means any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act, that -

1. an unfair contract or unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from any deficiency;

(iv) a trader or a service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price-

1. fixed by or under any law for the time being in force; or
2. displayed on the goods or any package containing such goods; or
3. displayed on the price list exhibited by him by or under any law for the time being in force; or
4. agreed between the parties;

(v) the goods, which are hazardous to life and safety when used, are being offered for sale to the public-

 (a)in contravention of standards relating to safety of such goods as required to be complied   with, by or under any law for the time being in force;

(b) where the trader knows that the goods so offered are unsafe to the public;

(vi) the services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by a person who provides any service and who knows it to be injurious to life and safety;

(vii) a claim for product liability action lies against the product manufacturer, product seller or product service provider, as the case may be;”

Section 2(5) of the Act defines “Complainant” as follows:-

“Complainant” means-

1. a consumer; or
2. any voluntary consumer association registered under any law for the time being in force; or
3. the Central Government or any State Government; or
4. the Central Authority; or
5. one or more consumers, where there are numerous consumers having the same interest; or
6. in case of death of a consumer, his legal heir or legal representative; or
7. in case of a consumer being a minor, his parent or legal guardian;”

Section 2(7) of the Act defines “Consumer” as follows:-

“Consumer” means any person who-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation.- For the purposes of this clause,-

1. the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
2. the expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;”

Considering the above definitions, we find a Complainant mandatorily has to be a ‘Consumer’ under the provision of the Act and must have any of the grievance against the opposite party as mentioned in Section 2(6) of the Act. To be a ‘Consumer’ under the purview of the Act, any persons who buys goods, hires or avails of any service for a consideration but does not include a person who obtain such goods for resale or for any commercial purpose or avail such service for any commercial purpose.

Initially in the Act of 1986 “housing construction” was not considered as service. Thereafter, the word “housing construction” was incorporated in Section 2(O) of the Consumer Protection Act, 1986 by way of amendment in the year 1993 and the same came under the perview of ‘Service’.

Thereafter, the Consumer Protection Act, 2019 came into force in July 2020. In the Act, the ‘Service’ is defined in Section 2(42) which is as follows:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”;

Section 2(37) of the Act, 2019 defines as follows:-

“Product seller”, in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes-

1. …………………………………….
2. a service provider, but does not include-

1. a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes of flats;
2. ………………………………………
3. ………………………………………. “.

On scrutiny of the materials available on records we find that complainants made no complaint against the opposite parties regarding any defect, fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which had been under taken by the opposite parties regarding construction and completion of the Project ‘MERLIN LEGACY’ or any allegation against the opposite parties regarding any act of negligence or omission or commission or deliberate withholding of relevant information or any misleading advertisement which caused loss, injury or harassment to the complainants.

The First allegation raised by the complainant is that with regard to the Clause 7 of payment plan mentioned in the Agreement for Sale is one sided, unconscionable, unfair and unjust as such time cannot be essence of Contract.

It is needless to mention any document are to be construed and interpreted harmoniously taking into account of the entire contents of the document and not based on a particular clause or provision of the document in isolation.

Though the contents of the admitted document i.e. Agreement for Sale dated 23.12.2020 not proved in this case, but both sides admitted that construction of project ‘MERLIN LEGACY’ and flat nos. 3E & 3C were completed, Completion Certificate was issued by the Kolkata Municipal Corporation in the year 2018 and on 23.12.2020, at the time of execution of the Agreement for Sale nothing was left to be done by the opposite parties regarding construction of the Project including the Flats. Therefore it is obvious that the last tire of the payment schedule date shall be applicable for payment of entire consideration amount of the flats. In the year 2020, the opposite party no.1 was simpliciter a seller of ready flat nos. 3E & 3C at ‘MERLIN LEGACY’.

In Shaila Construction Vs. Nainital Lake Development 1996 (NCDRC), it was held that there is no hire of service when there is outright sale of immovable property. However, if there is deficiency in service, complaint can be lodged.

This decision was followed by another case Yelchuri Subrahmanyam & others Vs. Buddi Sankara Babu & others 2015 (NCDRC) wherein it was held that as there was no evidence that the petitioners are working as builders, so they are not service providers but seller simpliciter. In such case the purview of the Act is ousted.

The Hon’ble NCDRC, New Delhi took the same view while deciding a case Ratna Roy Vs Babul Sarkar & others.

In this case the opposite party constructed a G+2 building after obtaining a sanctioned building plan from Barrackpore Municipality and sold and transferred the ground floor of the building and remained owner of the entire first and second floor of the building. Thereafter, the complainant with an intention to purchase a flat being Flat no.1 on the second floor entered into an Agreement for Sale with the opposite party. Thereafter, dispute arose and a case was filed by the complainant against the opposite party. The Hon’ble NCDRC, New Delhi observed that if a person enters into an agreement to purchase a ready built up flat, such a transaction would not be covered under the Consumer Protection Act since the purchaser cannot be said to be a consumer within the meaning of the Consumer Protection Act. There is no question of hiring or availing any services of the seller in transaction for sale of a ready built up flat. The term service has been defied in the Act to include housing construction. Therefore, if there is hiring or availing services for the purpose of housing construction, only then, the buyer would be a consumer within the meaning of the Act. In a transaction for ready built up flat, no element of the service of housing construction is involved.

Therefore, considering the above references, in this case also we find there is no element of service of housing construction is involved.

The complainant vehemently argued that the terms of the Agreement were violated by the opposite parties as they have not served one months’ notice which was precondition for cancellation of the Agreement for Sale. So, the notice dated 09.09.2021 of cancellation of booking of flats and Agreements for Sale are not binding upon the complainants.

Without entering into the technical questions relating to notice dated 09.09.2021, suffice it to say that even if non service of notice makes the cancellation invalid, then the remedy lies not on a mere declaration of illegality of cancellation of notice but specific performance of the contract/Agreement.

That under section 16(c)(ii) of the Specific Relief Act, the burden is upon the complainant to proof their readiness and willingness to perform the terms of the contract.

Section 16(c)(ii) states as follows:-

“the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”

In this case though the complainant prayed for such relief but did not make any endeavour to prove that they were always ready and willing to pay the rest consideration amount of the flats. This is sine qua non for getting the relief of specific relief of performance of a contract and when the complainants did not assert or prove such element, he is not entitled to get such relief.

A notice clearly means ‘make a person aware.’ The complainants did not deny that they prayed for extension of time since 26.12.2021 and the opposite parties went on extending time for full payment of rest consideration amount of the flats till the end of August 2021. So, sufficient notice had been given to the complainants to make full payment of rest consideration amount of both flats. Moreover, in case of a sale of ready Flats/Apartments the seller is not supposed to wait for the payment of consideration of sale amount for an indefinite period. The payment plan in the agreement in anyway cannot affect the buyers and cannot be termed as one sided. The demand of rest amount of sale consideration of the flats by the opposite parties since 26.12.2020 are not unjustified.

Having regard to the elaborate discussion made above, we are of the view that the dispute between the parties is absolutely civil in nature and an attempt has been made by the complainants in both complaint cases to give a flavour of Consumer Dispute within the perview of the Consumer Protection Act, 2019 amounts to abuse of process of law.  Considering the nature of the Agreements for Sale dated 23.12.2020 of ready built up flats, by no stretch of imagination, the complainants can be termed and considered as Consumers under section 2 (7) of the Consumer Protection Act, 2019.

In view of the above all the issues are decided against the complainants. Consequently both the cases fails.

Fees paid correct.

Hence, it is

O R D E R E D

that the complaint Case No.222/2021 and Complaint Case No.221/2021 are dismissed on contest with cost.

Dictated and corrected by me

President