Dt. of filing- 07/02/2018

Dt. of Judgement- 27/03/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This consumer complaint is filed by Smt. Rekha Dutta and Bhaskar Dutta under Section 12 of the Consumer Protection Act against  Opposite Party namely Shyamali Mazumder alleging deficiency in services  on her part.

             Complainant’s case in short is that they agreed to purchase a flat on the 2^nd floor (West Side) measuring about 509 sq.ft.  situated at Premises No. 276A, Upendra Nath Banerjee Road,  Ward No. 131 under Kolkata Municipal Corporation, Kolkata – 700 060 at a total consideration  price of Rs. 15,50,000/-. In terms of the said agreement between the complainants and the OP dated 04.05.2015, the complainants paid Rs.4,00,000/-  in cash and Rs. 3,00,000/- on transfer to the SB Account of OP on 04.05.2015. It was agreed  that the  balance  would be paid  by way of instalment of Rs. 5,000/-  p.m. in  10 years  and balance  of Rs. 2,50,000/- would be clear by two instalments  by the end of  2016. The complainants have always been ready and willing to pay the balance amount to the OP but the OP did not execute the Deed of Sale in favour of the complainants despite several requests. So, the present complaint has been filed for directing the  OP to execute and register  the Deed of Conveyance in respect of the  flat described in the schedule, to refund the part payment of Rs. 7,00,000/- paid by the complainants and to pay Rs. 50,000/-  towards the litigation  cost.

          The complainants have annexed with the complaint petition, copy of the agreement dated 04.05.2015 and money receipts.

         Opposite Party has contested the case by filing a W.V. denying the material allegations made against her contending  inter alia that on request of the  complainant, she has refunded  Rs. 15,000/- by depositing  the same  in the bank account. The complainants have to pay the balance consideration price of Rs. 8,65,000/- but the complainants were never ready and willing to pay the balance amount to the OP. Thus, the OP has prayed for dismissal of the complaint petition.

          During the course of the evidence, both the respective parties  filed  their evidence  followed by filing  questionnaire and reply thereto. Parties have also filed written notes of argument. At the time of argument,Ld. Advocate  appearing  for the OP has emphasised  mainly on the fact that the  subject property is a  readymade flat  and thus it does not  fall within the provisions of   Consumer Protection Act. So, the following points required determination  :

1. Whether there has been any deficiency in services on the part of the OP?
2. Whether the complainants are entitled to the reliefs as prayed for?

Decision with reasons

Point Nos. 1 & 2 :  Both these points are  taken up  together for discussion in order to avoid repetition. In this case, as appears from written version filed by the OP, it has not been disputed that there was an agreement dated 04.05.2015 executed between the parties to sell the subject flat. It is also not in dispute that an amount of Rs. 7,00,000/-  has been paid by the complainants to the OP. However, OP has claimed that out of 7,00,000/-  she has returned Rs. 15,000/- to the complainants on their request. But the question requires to be determined  is whether the complainants  had hired any  service  of housing construction as provided  under Section 2(1)(d)(o). Housing Construction has been incorporated  within the  definition  of “service”  with effect from 18.06.1993. From the agreement dated 04.05.2015, it is apparent that the  flat was a ready flat . OP is the owner of the said  building and she sold a portion  in the 2^nd floor  of the  building to the complainants. Unless a service is hired   (in this case  service of housing construction )  there cannot be  any  deficiency  which is  the very  element  to file a case under the provisions of Consumer Protection Act. Sale of ready flat is ,neither goods nor services but a transaction of immovable  property, hence outside the purview of the ‘Consumer’. In a ready flat or when a building is already constructed, the element  of ‘service’ is absent. So the buyer would  not be a ‘Consumer’ and the transaction would not  be covered under the  Consumer Protection Act. In such  view of the matter, the argument advanced by the Ld. Advocate  for the OP that the  complainants are not a ’Consumer ’  under the provision of Consumer protection Act,  cannot be discarded. So, complainants being  not a ‘Consumer’, present complaint is not maintainable and thus liable to be dismissed. Both these points are answered accordingly.

Hence,

                            Ordered

          CC/58/2018 is dismissed on contest.