HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal is directed against the order dated 09/07/2024 passed by the Learned District Consumer Disputes Redressal Commission, Unit IV, Kolkata ( in short, ‘the District Commission’) in connection with complaint case No. CC/37/2023 whereby the Learned District Commission was pleased to dismiss the complaint case on contest without costs filed by the appellant / complainant.
- The appellant being the complainant filed a complaint case before the Learned District Commission being No. CC/37/2023 praying for the following reliefs :-
“a) The Learned Commission may kindly be pleased to direct the Opposite Parties to refund the amount of Rs.10,00,000/- (Rupees Ten Lakh) only which they received till date.
b) The Learned Commission may kindly be pleased to direct the Opposite Parties to pay 10% interest per annum over the amount of Rs.10,00,000/- (Rupees Ten Lakh) only till refund the principal amount which they received till date.
c) That the Learned Commission may kindly be pleased to direct the Opposite Party to pay a sum of Rs.2,00,000/- to the complainant as compensation and direct the Opposite Parties to pay further sum of Rs.50,000/- to complainant as litigation cost.
d) Any other relief or reliefs that the complainant is entitled to in law and in equity.”
3. Notices were duly issued upon the opposite parties and the opposite parties entered appearance in this case and contesting the case by filing written version.
4. Considering the facts and circumstances of the case and the materials available on record the Learned District Commission dismissed the complaint case on contest on merits against the opposite parties without any costs.
5. Being aggrieved by and dissatisfied with the said order the appellant / complainant has preferred the instant appeal under hearing. The Learned Advocate appearing for the appellant has urged that the Learned District Commission below erred both in law and in fact at the time of passing of the impugned order.
6. He has further urged that the Learned District Commission failed to appreciate that the appellant / complainant is a ‘consumer’ within the meaning of the provision of the said Act.
7. He has further urged that the Learned District Commission passed the impugned order without taking consideration of the issue of the maintainability of the complaint proceeding.
8. He has further urged that the Learned District Commission failed to verify the sanctioned plan in connection with the complaint case.
- The opposite parties / respondents failed to produce any copy of the sanctioned plan in respect of the case flat.
- He has further urged that the impugned order is bad in law and the same is lacking in judicial discussion as also the reason while dealing with the issues, for consideration.
- Learned Advocate appearing for the appellant has prayed for setting aside the impugned order.
- I have heard the Learned Advocate appearing for the appellant and have carefully perused the memo of appeal and the order impugned. The appellant has filed the copy of agreement for sale dated 29/07/2022 which discloses that the complainant / appellant entered into an agreement for sale to purchase a constructed flat which was allotted to the opposite parties / developers as per the development agreement dated 13/09/2018. In Para No. 1 of the petition of complaint the appellant / complainant also stated that by virtue of development agreement dated 13/09/2018 the opposite parties have developed the premises No. 279, P.S. Anandapur within the limits of Kolkata Municipal Corporation.
- It also transpires from the said agreement for sale dated 29/07/2022 that the complainant / appellant paid a sum of Rs.10,00,000/- (Rupees ten lakh only) towards earnest money out of total consideration of Rs.30,00,000/- (Rupees thirty lakh only) to the opposite parties.
- Under these facts and circumstances it appears to me that the agreement was executed for sale of a ready flat. There is no housing construction or development work involved in the matter. There is nothing but an attempt for sale of a ready flat. Therefore, the case is related to the simplicitor sale. This is nothing but an agreement of a ready flat related to simplicitor sale and the complainant / appellant cannot be treated as a ‘consumer’ under section 2(7) of the Consumer Protection Act, 2019 and the opposite party is also not a service provider. The relationship between the complainant and the opposite parties is simply termed as purchaser and seller. The dispute is not a consumer dispute. The complainant has not availed any service as per the provision of section 2(42) of the Consumer Protection Act, 2019.
- 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.”
- 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.”
- In view of the above decisions and looking to the contents of the deed of Agreement for Sale dated 29/07/2022 executed between the parties, it appears that the transactions between the parties is simplicitor sale transaction. Therefore, the appellant is not a consumer u/s 2(7) and the opposite party is not a service provider u/s 2(6) and 2(42) of the Consumer Protection Act, 2019.
- Therefore, the impugned order dated 09/07/2024 passed by the Learned District Commission is legal and valid and is sustainable in the eye of law and the said order is liable to be affirmed. Hence, the appeal filed by the appellant is dismissed and the impugned order dated 09/07/2024 passed by the Learned District Consumer Disputes Redressal Commission, Unit-IV, Kolkata is confirmed. There will be no order as to costs of this appeal.
- The appeal is, thus, disposed of accordingly.
- Office to comply.
