HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This complaint under section 47 of the Consumer Protection Act, 2019 has been filed against the opposite parties praying for the following reliefs :-

“a) To admit the complaint petition and be pleased to issue rule calling upon the opposite parties by showing cause as to why the prayer of the complainant shall not be allowed;

b) To pass an order by directing the opposite party No.3/Bank to withdraw the notice dated 21.11.2023 sent via mail because the same is not binding upon the complainant and/or from taking any coercive measures against the complainant in connection with the said loan account till disposal of the complaint case;

c) To pass an interim order restraining the opposite party No.3/Bank from taking any coercive measure against the complainant and/or to force the complainant for payment of EMI till disposal of the instant petition of complaint;

d) To pass an order by directing the opposite party No.3/Bank to realise the entire amount of loan with interest, damages and other charges, if any from the opposite party No.1/developer.

e) To pass an order by directing the opposite party No.3/Bank to discharge the complainant from the liability of payment of the said loan amount with interest, cost and damages, if any in connection with the said home loan and Insurance account, considering that no right, title and interest of the schedule property ever passed in favour of the complainant by virtue of the deed of conveyance dated 25.11.2022.

f) To pass an order by directing the opposite party No.3/Bank to issue “no objection certificate” in favour of the complainant in connection with said Home loan and Insurance account and to inform the concerned authority of CIBIL;

g) To pass an order by directing the opposite party No. 1 concern to refund the entire booking amount and part payment, cost of stamp duty and registration charges of Rs.4,29,934/- only and the incidental charges of Rs.50,000/- only of the said deed of conveyance and the amount of EMI on the account of Home Loan & Insurance as has been paid by the complainant to the opposite party No. 3/Bank together with the interest @18% thereon from the date of receipt of the said amount till the date of its realization;

h) To pass an order of re-conveyance of the deed of conveyance dated 25.11.2022, if required by law;

i) To pass an order by directing the opposite parties to pay the compensation and damage of Rs.10,00,000/- for causing mental pain, agony and prolong harassment to the complainant;

j) To pass an order by directing the opposite party concerned to pay the litigation cost of Rs.50,000/ to the complainant;

k) To pass such other relief or reliefs as the Hon’ble Commission may deem fit and proper.”

2. Heard the Learned Advocate appearing for the parties on the point of admission at length and in full.

3. Having heard the Learned Advocate appearing for the complainant and on perusal of the record, the petition of complaint and other documents it appears to me that to prove the case the complainant has filed photocopy of Deed of Conveyance being No. 160413736 for the year 2022 dated 25.11.2022 which has been marked as Annexure ‘B’ of the petition of complaint. The said Deed of Conveyance dated 25.11.2022 discloses that the opposite party No. 1 was the vendor and the opposite party No. 2 was the Developer / Confirming party of the said Deed of Conveyance. The said Deed of Conveyance also discloses that after completion of the G+3 storied building, the Developer / Confirming party firstly fulfilled all the obligations of the owner as well as the vendor herein as per the terms and conditions of the said development agreement dated 30.08.2017. The said document also discloses that the complainant being satisfied about the title of the premises and also considering the scheme of the transfer of the flat / flats and the car parking space the complainant purchased the said flat situated at the 2^nd floor at the southern side measuring super built up area 1032 sq. ft. and one car parking space measuring 120 sq. ft. more or less in the ground floor of the said G+3 storied building. The said document also discloses that the complainant purchased the ready flat and possession of the said flat was handed over to the complainant by virtue of the said Deed of Gift.

4. Under this facts and circumstances it appears to me that the Deed of Conveyance being No. 160413736 dated 25.11.2022 executed between the complainant and the opposite party Nos. 1 & 2 for sale of a ready flat along with car parking space situated at 81A, R.K. Chatterjee Road, Post Office and Police Station Kasba, Kolkata – 700 042.

5. There is no housing construction or development work involved in the matter.  This is nothing but a Deed of Conveyance for sale of a ready flat. Therefore, the case is related to simplicitor sale. This is nothing but sale of a ready flat related to simplicitor sale and the complainant cannot be termed as a ‘consumer’ under section 2(7) of the Consumer Protection Act, 2019 and the opposite party is not also a service provider. The relationship between the complainant and the opposite party No. 2 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.

6. 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.”

7. 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.”

8. In view of the above decisions and looking to the contents of the Deed of Conveyance dated 25.11.2022 executed between the complainant and the opposite party Nos. 1 & 2, it appears that the transactions between the parties is simplicitor sale transaction. Therefore, the appellant is not a consumer U/s 2(7) and O.P. is not service provider U/s 2(6) and 2(42) of the Consumer Protection Act, 2019.

9. Learned Lawyer appearing for the complainant at the time of hearing has relied on the decisions reported in 2013(1) DNJ 75, 2015(3) LAR 183, 2006(5) ALL MR(SC) 185, 2009(3) CPC 556, 2016(1) CPR 152, 2019(1) OJR 652, 2016(1) CPR 152 & 2015(4) ALL MR 64. However, reliance of these eight judgments in the adjudication of this case, facts being at variance, would be misplaced.

10. Under this facts and circumstances, I am of the view that the complaint case is not maintainable in law and is liable to be dismissed.

11. In the result, the complaint case be and the same is dismissed in limine without being admitted.

12. The complaint case is thus disposed of accordingly.

13. Consequently, the Interlocutory Application being No. I.A./409/2024 stands dismissed.