FACTS The fact of this complaint, in short, is that the complainant on 11/04/2019 in order to buy the scheduled flat being No. F, on the 2nd floor, Apsara Apartment, Block- B at 55/A, S. K. Deb Road, P.O- Shreebhumi, P.S- Lake Town, Kolkata- 700048 from the developer’s allocation at a consideration of Rs.24,00,000/- made an agreement with Opposite Party No. 6. Thereafter, on taking home loan amounting to Rs.20,00,000/- from Opposite Party No. 7, the deed of conveyance was made on 9th November, 2019. Opposite Party No. 7 prior to sanction of the loan, verified all documents and also physically verified the said flat and after satisfaction, disbursed the loan amount in favour of the complainant. The developer- Opposite Party No. 6 also issued a certificate to the bank stating that the flat was free from all incumbrances before the loan amount was sanctioned. After execution of the deed of conveyance, complainant approached the Opposite Party No. 6 for physical possession of the scheduled flat. However, Opposite Party No. 6, in stead of giving possession of the said flat, had given him temporary possession of the 4th floor of the said building assuring him that he would quickly hand over the possession of the scheduled flat. But the developer did not hand over the possession of his flat thereby depriving him of the enjoyment of his flat. Complainant also sent legal notice through his learned Advocate on 07/02/2021 for handing over the physical possession of the flat. But the developer- Opposite Party No. 6 responded to the said notice claiming that the flat on 4th floor was sold to him and not on the 2nd floor and he relied on the electric bill which was taken by the developer in the name of the complainant in respect of the flat situated on 4th floor. So, complainant filed this case praying for several reliefs, namely, a direction upon Opposite Party No. 6 to hand over the possession of the schedule flat to him to furnish all documents relating to the said flat, compensation and cost of litigation etc. Original Opposite Party Nos. 1 to 5 are said to be the land owners. Subsequently, after the death of Opposite Party No. 1, his legal heirs were substituted as Opposite Party Nos. 1 (a) to 1 (d). However, they did not contest the case by filing any written version while Opposite Party Nos. 2, 4 and 5 filed one written version denying all the allegations of the complainant. The name of original Opposite Party No. 3- Smt. Asharani Das was expunged as she died. Opposite Party No. 6 (a) is the firm and Opposite Party No. 6 (b) is the proprietor of the said firm. In his written statement, Opposite Party No. 6 (b) claiming the complaint not being maintainable, asserted that he on receiving the amount of consideration put his signature on the deed of conveyance made by the advocate of the complainant and did not go through the every line in the said deed and put his signature as pointed out by the advocate of the complainant. Thereafter, on receipt of the notice of this case, it came to his notice about the mistake in mentioning the number of the flat and floor of the complainant at different places in the said deed of conveyance. According to him, he put his signature in the deed of conveyance written by the advocate of the complainant where it was mentioned that the flat to be sold to the complainant was on 4th floor, Apsara Apartment, Block- B and complainant took the peaceful possession of the said flat and obtained new electric meter in his name. So, Opposite Party No. 6 prayed for dismissal of the instant complaint. Opposite Party No. 7, in a separate written version also prayed for dismissal of the instant case being not maintainable. In their written version, it is claimed that home loan of Rs.20,00,000/- was sanctioned and on the basis of the documents submitted by the complainant to the bank, the said amount of loan was disbursed in favour of the complainant regarding purchase of the scheduled flat. The deed of conveyance in respect of the said flat is mortgaged to the bank as collateral security in respect of the said home loan. As the complainant did not pay the amount due in respect of his home loan, one notice u/s 13 (2) of SARFASEE Act, 2002 was issued by the bank which was duly received by the complainant. It is alleged that they made out a false and concocted story regarding non-delivery of the physical possession of the 2nd floor flat with the sole intent of not paying the dues outstanding in respect of his home loan. Now, the points for consideration are- - Is the complainant a Consumer and the instant complaint maintainable?
- Is the complainant entitled to the relief (s) as prayed for in this case?
In this case what we find, complainant, Opposite Party No. 6 (a) & 6 (b) and 7 exchanged questionnaires and replies. They have filed their evidence and also brief notes of argument. We have gone through the evidence and the other materials on record. Point No. (i): Complainant is found to have filed the instant complaint against the Opposite Parties claiming several reliefs as mentioned in his petition of complaint. Thereafter, on receipt of notice Opposite Party No. 6 (b) who is the proprietor of Opposite Party No. 6 (a) and Opposite Party No. 7 appeared and filed their written version. In the both the written version, they claimed the instant case not being maintainable. Likewise, Opposite Party No. 2, 4 and 5 in their written version have made similar claim. The essential requisite to file a complaint under the Consumer Protection Act, 2019, complainant needs to establish that he is a consumer within the definition of the term as given in Section 7 of the Act which is reproduced below; (7) "consumer" means any person who— (i) buys any goods 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 other than the person who buys 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 (ii) hires or avails of any service 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 beneficiary of such service 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 service for any commercial purpose. Explanation.—For the purposes of this clause,— (a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment; (b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing; Here, what we find that the complainant has claimed to have made one agreement for sale of the scheduled flat with the Opposite Party No. 6 (b) and thereafter, on obtaining loan from Opposite Party No. 7, the deed of sale was executed and registered. Complainant could not produce the deed of agreement for sale or a copy thereof. At the same time, he could not produce the original deed of conveyance in his favour as according to him, all the documents are lying in the custody of the bank i.e. Opposite Party No. 7 who provided him loan in purchasing the flat. However, complainant has produced one photo-copy of the original deed of conveyance and Opposite Parties are found to have not denied the said document. We find complainant, in his petition of complaint, has stated that by virtue of a development agreement and one registered Power of Attorney on 20/11/2003 Opposite Party No. 6 completed the multi-storied building where the scheduled flat is situated. In paragraph No. 4 of the petition of complaint he has stated that the Opposite Party No. 6 while seized and possessed of the developer’s allocation which includes one self-contained residential mosaic finished flat being No. F, on the 2nd floor of the building named Apsara Apartment, Block- B measuring super built-up area of 700 sq. ft. at 55/1/1, S. K Deb Road, P.O- Shreebhoomi, P.S- Lake Town, District- South 24 Parganas, Kolkata- 700048 entered into an agreement for sale of the above mentioned flat at a consideration of Rs.24,00,000/-. Complainant has also stated that he applied for home loan for Rs.20,0000/- from Opposite Party No. 7 and prior to that Opposite Party No. 7 physically verified the said flat and the documents relating to that and after being satisfied the amount of loan was sanctioned and thereafter, the deed of conveyance was executed on 09/11/2019 by the Opposite Parties. It is further claimed that the said developer- Opposite Party No. 6 (b) had also issued a certificate to Opposite Party No. 7 stating that the flat was free from all encumbrances before sanction of the loan amount. The complainant is found to have reiterated the same statements in his evidence filed on affidavit. Again, we find that in his replies to the questionnaires filed on behalf of Opposite Party No. 6 (a) & 6 (b), complainant has claimed to have visited the said scheduled flat before his purchase and also discussed with the developer. According to him, in the year of 1990, he visited the said flat. He has further stated in his replies that he has no knowledge when the construction of the said building and the flat was completed. He has claimed that before his purchase of the flat, the developer of the flat i.e. Opposite Party No. 6 (b) was in possession of the said flat as he owned the same as developer’s allocation. The copy of the deed of conveyance (Annexure B) produced by the complainant also has made it clear that the developer having seized and possessed of the developer’s allocation in respect of the self-contained residential mosaic finished flat being No. F, on the 2nd floor of the building, Apsara Apartment, Block-B 1/55/A S. K Deb Road, P.O- Shreebhumi, P.S- Lake Town, Kolkata- 700048 and upon having the absolute lawful right, bona fide interest and marketable title in respect of the said flat, he agreed to sell the said flat when the purchaser i.e. the complainant offered him a lumpsum amount of Rs.24,00,000/- for the said flat. So, all the things as stated above only make it quite clear that the scheduled flat which the complainant has claimed to have purchased is a complete and finished flat and it was in possession of the developer who subsequently, sold the same to the complainant. So, keeping in mind the term “Consumer” as defined in the Consumer Protection Act, the complainant cannot be said to have bought any goods for consideration or hired or availed of any service for consideration. In this connection, we may refer to the decision of the National Consumer Disputes Redressal Commission passed in Revision Petition No. 2322 of 2017 which is found to be quite relevant in the present case. Hon’ble National Commission in the said case was pleased to hold that if a person enters into an agreement to purchase a ready built-up flat such a transaction would not be covered under the Consumer Protection Act, since the purchaser cannot be said to be a consumer within the meaning of the Consumer Protection Act. There is no question of hiring or availing any services of the seller in a transaction for sale of ready built-up flat. Therefore, we are of the view that the instant complaint is not at all maintainable as the complainant is not found to be a Consumer. In this context, be it noted here that we feel it absolutely unnecessary to discuss other aspects in connection with this case which were submitted by the parties in connection with the respective cases. Hence, the instant complaint is liable to be dismissed. Accordingly, it is ORDERED That the instant complaint be and the same is dismissed on contest against Opposite Parties Nos. 2, 4 & 5, 6 (a) & 6 (b) and 7 and ex parte against Opposite Party Nos. 1 (a), 1 (b), 1 (c) & 1 (d). No order as to costs. Dictated and corrected by me. President |
