Order no. 5              Date:26.06.2024

Ld. President has returned from DCDRC, Kolkata, Unit-IV, Sealdah after completion of her work.

Ld. Advocate for the complainant is present.

It is now 2.00 P.M.

The case is taken up for admission hearing.

Perused the complaint application along with the photo copy of the deed of conveyance dated 21.12.2021 filed by the complainant.

Heard Ld. Advocate for the complainant.

It is alleged that the complainant has purchased one garage situated on the ground floor Block-A, measuring super built up area 120 Square Feet, more or less at premises No.53B, Sova Bazar Street and 12 Rasik Lal Lane, P.S. Shyampukur, Kolkata-700005 by virtue of deed of conveyance dated 21.12.2021. The opposite party nos.1 to 3 are engaged in selling the flats and garages for making profits as the developers and they are the service provider as per section 2(37)(ii) of the Consumer Protection Act, 2019. According to the complainant the opposite party nos. 5 and 6 are the land owners of the above mentioned premises.

The complainant categorically states that the opposite party nos.1 to 3 being developers entered into a development agreement dated 09.05.2008 with the opposite party nos. 4 and 5 to construct a building at the said premises consisting of several flats, garages and spaces in accordance to the sanction plan of Kolkata Municipal Corporation and on the terms and conditions mentioned in the development agreement dated 09.05.2008. The opposite party nos.1 to 3 obtained sanction plan from Kolkata Municipal Corporation vide plan No.2013010063 dated 18.09.2013. Thereafter, the complainant purchased one garage on the ground floor of premises No.53B, Sova Bazar Street and 12 Rasik Lal Lane, P.S. Shyampukur, Kolkata-700005 measuring about 120 Square Feet for a consideration of Rs.7,00,000/- (Rupees seven lakh) only by virtue of registered deed of conveyance dated 21.12.2021.

It has been categorically alleged by the complainant that the opposite parties in spite of execution of registered deed of conveyance dated 21.12.2021, have failed to provide any garage space at the said building to the complainant. According to the complainant, such act of the opposite parties is deficiency in service for which the complainant is suffering immense mental agony. Until and unless transfer of the garage space in question in pursuance of the deed of conveyance dated 21.12.2021 in favour of the complainant, the complainant will suffer and irreparable loss and injury. In such context, the complainant prayed for a direction upon the opposite parties to handover the garage space on the ground floor Block-A measuring super built up area of 120 Square Feet at premises No.53B, Sova Bazar Street and 12 Rasik Lal Lane, P.S. Shyampukur, Kolkata-700005 as per the schedule and plan mentioned in the deed of conveyance dated 21.12.2021 in favour of the complainant in alternative to refund a sum of Rs.7,00,000/- (Rupees seven lakh) only with interest @ 18% inter alia on other reliefs.

On perusal of the photo copy of deed of conveyance dated 21.12.2021 and the averment made in the complaint application, it is crystal clear that the complainant has purchase a constructed garage space for a consideration of Rs.7,00,000/- (Rupees seven lakh) only by virtue of registered deed of conveyance dated 21.12.2021. Therefore, by no stretch of imagination it can be presumed that the complainant has availed any service from the opposite parties on payment of consideration as defined in section 2(42) of the Consumer Protection Act, 2019.

Section 2(42) of the Consumer Protection Act, 2019 is as follows :

“(42) “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;”

As the complaint application as well as the photo copy of registered deed of conveyance clearly reveals that the complainant has purchased a constructed garage space, therefore no question of availing service of ‘housing construction’ as defined in the Act.

Moreover, the registered deed of conveyance dated 21.12.2021 clearly suggests that possession of the garage was delivered simultaneously with the execution of the Deed of Conveyance in favour of the complainant.

In view of the Section 91 of the Evidence Act, the complainant is debarred from making any contrary statement in this regard.

Having considered the discussion made above, we are of the opinion that the complainant is not a consumer in terms of Section 2(7) of the Consumer Protection Act, 2019.

Therefore, this Commission has no jurisdiction to try this case under the Consumer Protection Act, 2019.

Fees paid correct.

Hence, it is

                                                            O R D E R E D

that the complaint case be and the same is dismissed as not maintainable in law.