PER: HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter refer to as ‘the Act’) is at the instance of a couple against the Housing Development Company (Opposite Party No.1) and its Chief Executive Officer (Opposite Party No.2) on the allegation of deficiency of services, primarily on the part of Opposite Party No.1 in a consumer dispute of housing construction.
In a nutshell, complainants’ case is that pursuant to the advertisement made by the OP No.1 company, the complainants have filed an application to purchase of a residential flat in Bengal Peerless Development Housing Project to be promoted by the Opposite Party No. 1 namely ‘Avidipta Housing Complex’ lying and situated at premises No. 401, Eastern Metropolitan Bye-Pass, P.S.- Purba Jadavpur, Kolkata- 700099, District South 24 Parganas within the local limits of Ward No. 109 of Kolkata Municipal Corporation. On 7.9.2011 the OP No. 1 issued the allotment letter in favour of the complainants allotting a residential flat being a No. 1 G- 1301 and one covered car parking space being No. 1 GC/06 in the said Housing Complex at a total consideration of Rs. 88,00,000/-. The complainants have stated that as per terms of the agreement the OP No. 1 Company agreed to deliver the flat in question within 48 months from the date of issuance of provisional allotment letter and to deliver the same in complete condition within 7.9.2015. The complainants have stated that the opposite parties have failed to keep their promise in delivering the subject flat within the stipulated period and in this regard all the requests and persuasions including the legal notices went in vain. Hence, the complainants have approach this commission with prayer for following reliefs viz.- (a) the opposite parties be directed to complete the incomplete jobs in respect of the subject flat; (b) to direct the opposite parties to deliver the possession of the residential flat in question; (c) to direct the Opposite Parties to execute and register the Deed of Convenience in favour of the complainants immediately; (d) to pay compensation of Rs.10,000,00/- for harassment and mental agony; (e) litigation cost of Rs.50,000/- etc.
The opposite parties by filling a written version have stated that in terms of the agreement they were supposed to complete the project within 7.9.2015 but due to Force majeure condition they could not complete the project and as such could not handover the possession of the flat to the complainants within the stipulated period of time. However, they have handed over the possession of the flat in question and car parking space to the complainants on 23.8.2016. The Opposite Parties have stated that as there was no deficiency of services on the part of them, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Though both the parties were represented through their Ld. Advocates yet they have not filed any brief notes of argument in support of their respective cases.
The pleadings of the parties and the evidence on record make it abundantly clear that in the year 2011OP No.1 M/s. Bengal Peerless Housing Development Company Ltd. has made an advertisement inviting application from the public after purchasing brochure along with a general terms and conditions for sell and allotment of LIG,MIG, and HIG flats through public lottery in the Housing Complex to be constructed by OP No.1 Company in the plot of land lying and situated at premises No. 401, Eastern Metropolitan Bye-pass P.S.- Purba Jadavpur, Kolkata- 700099, District South 24 Parganas within the local limits of Ward No. 109 of Kolkata Municipal Corporation. Pursuant to the said advertisement, on 26.2.2011 the complainants applied for a G- type of HIG flat with a covered car parking space. On the basis of the application and being successful in public lottery a flat being number IG- 1301 and a covered car parking space being number IGC/06 i.e. HIG- G type of flat in the said premises was allotted in favour of the complainants by issuing a provisional allotment letter dated 7.9.2011 by OP No.1. It is not in dispute that as per terms and conditions, the OP No.1 Company was under obligation to complete the project on 7.9.2015. However, it reveals that on 23.08.2016 the OP No. 1 company handed over the possession of the flat in question and car parking space in favour of the complainants after about 11 months from the committed date of delivery of possession.
The opposite parties took a plea that due to Force Majeure circumstances, the construction could not be completed, particularly non-availability of power connection from the CESC limited, litigation and other reasons which were beyond the control of them.
The materials on record indicate that the opposite party No. 1 was supposed to complete the project on 7.9.2015. On 31.7.2015 the OP No. 1 company paid the entire amount to the CESC Ltd for electric connection in the complex. However, the CESC Ltd could supply the power connection in the said project in the month of July, 2016. Therefore, it is quite apparent that due to non-availability of power connection the possession could not be delivered. In this regard, Clause vi(f) of the agreement appears to be relevant which runs as follows:
“(f) subject to Force Majeure condition (as explained in clause xvii hereinafter) if the completion of the Housing project is delayed beyond the Schedule time and if on this account the allottee/s wishes to withdraw his/her application in that event the amount deposited by him/her will be refunded with simple interest at the then prevailing rate application to saving Bank account in a Nationalized Bank, without any other claim for damages or compensation whatsoever”.
In terms of the said Clause the complainants did not withdraw their application and further did not claim any refund of the amount with simple interest at the then prevailing rate applicable to savings Bank account in a Nationalised Bank and as such when there was non-availability of electrical connection due to some technical reasons of CESC Ltd and further the complainants did not file any application for withdrawal of money, no liability should be attributed to the OP No.1 company due to such Force Majeure circumstances.
Mr. Prasenjit Basu, Ld. Advocate with Mr. Parikshit Basu, Ld. Advocate has submitted that the complainants have affirmed two affidavits before the Ld. Judicial Magistrate, 1st Class at Alipore wherein they have stated that after receipt of consideration money they sold the flat in question in favour of a third party named Ms. Nilima Niyogi. Therefore the complainants ceased to be ‘Consumer’ within the meaning of Section 2(1)(d) of the Act.
What we find from the record is that on 29.12.2017 the complainants have affirmed two affidavits before the Ld. Judicial Magistrate, First class at Alipore. In those affidavits, the complainants have mentioned that they intend to sell and transfer the said flat and car parking space against valuable consideration in favour of one Ms. Nilima Niyogi upon receipt of the agreed consideration amount in the said affidavit. The complainants have stated that they took possession of the flat and car parking space along with Possession Letter dated 23.8.2016 with full satisfaction. It has also been stated by the complainants that after the transfer they shall have no claim in respect of flat in question and car parking space.
Therefore, the question comes for consideration whether after such transfer of valuable consideration the complainants could be treated as ‘Consumer’ as defined in section 2(1) (d) of the Act. For the purpose of appreciation of the situation, let us see the definition of section 2(1) (d) of the Act. which reads as under:
“Consumer means any person who:-
- buys any good 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 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
- hires or avails of any services of 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 services 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 services for any commercial purposes;
Explanation- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”;
In a decision reported in i (2005) CPJ 27 (M/s. Harsolia Motors v/s M/s. National Insurance Company Limited) relying upon the decision of the Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works v/s PSG Industrial Institute) the Hon’ble National Consumer Commission has observed that in case of resale, the complainant will be executed from the purview of the Act.
Therefore, on evaluation of materials on record and having heard the Ld. Advocates appearing for the respective parties it appears to us that once the complainants agreed to resale the subject flat and car parking space to a third party, certainly, they ceased to be ‘Consumer’ within the meaning of section 2(1) (d) of the Act.
Consequently, the complaint is dismissed on contest. However, there will be no order as to cost.
