Order No         :  11                                                                 Order date:  19/07/2023

            Today is fixed for order on the M A application filed by the OPs/petitioners for dismissal of the complaint case no. CC/222/2021.  On 17/07/2023 Ld. Advocates for both the complainant and the OPs were present and submitted their explanation regarding this M A application at length.

            In this application petitioners/OPs stated that the Sale/Purchase of the subject flat was nothing but a “simpliciter sale” as the petitioners/OPs was going to sale a readymade/existing flat admeasuring about 700 sq ft at the 2^nd floor for a consideration of Rs.28,00,000/-  “as is where is” basis.  So, according to them the original complaint petition is liable to be dismissed.

            On careful scrutiny of the case records it is found that the complainant of the original CC Case had entered into an agreement for sale on 02/02/2021 with the OPs who were the owners of the premises where a five-storied building was being constructed by the Owners and were willing to sale out a flat situated at 2^nd floor of the building admeasuring 700 sq ft Carpet area and exclusively stated as “excluding Super built up area” for a consideration of Rs.28,00,000/- and the complainant/ purchaser paid Rs.3,00,000/- before executing this agreement.  It was decided that the purchaser/ complainant would pay Rs.3,00,000/- within February, 2021 and Rs.7,00,000/- within April, 2021.  It was agreed that the flat would be handed over to the purchaser within the coming 8 months.  We found, as stated in the complainant petition as well as the letter sent by the purchaser to the OPs through his advocate on 02/09/2021 that the measurement of the flat was found as having 620 sq ft carpet area instead of 700 sq ft for which the purchaser/complainant refused to take possession of the flat and requested the OPs to refund the amount of Rs.7,00,000/- paid by him to the OPs.  In reply Ld. Advocate for the OPs sent letter to the purchaser/complainant on 07/09/2021 stating that it was clear from the agreement for sale that the area of the flat was declared as 700 sq ft super built up area and not the carpet area and the purchaser/complainant ought to have get possession of the subject flat of 700 sq ft super built up area.

            Ld. Advocate appearing for the petitioners/OPs annexed a judgement of the Hon’ble NCDRC, West Bengal, being F. A. No. A/745/2017 which is not relevant to the present case as this judgement was passed on a sale simpliciter in “as is where is basis” sale. The present case is in nowhere relates with such sale and hence not considered this judgement.

Moreover, Ld. Advocate for the petitioners/OPs emphasized that the complainant is not a Consumer as defined under the Act as the sale proceedings is a sale simpliciter.  But this submission cannot be upheld as the sale agreement and the reply by the OPs through their Advocate dated 07/09/2021 clearly states that the purchaser is a Consumer under the  Act.

            The above discussion points out that there is a service of ‘housing construction’ involved in the process of selling/purchasing of the subject flat and this is not a ‘simpliciter sale’ of a readymade flat ‘as is where is basis’.  The agreement for sale dated 02/02/2021 itself states that the OPs, being the owners of the premises are ‘developing’ the premises by ‘constructing a five-storied’ building.  This implies that the purchaser/complainant has hired the service of ‘housing construction’ from the OPs.  Hence the application for dismissal of the original CC Case being not maintainable is liable to be rejected.

Dictated & corrected by me.

President