Date of filing: 14/07/2021                                                    

Date of Judgment: 09/10/2023

Mr. Sudip Niyogi, Hon’ble President.

                                                                  BRIEF FACTS

The complaint case in short is that on 24/12/2018 he went to the office of the respondent and thereafter on inspection booked a flat in his project namely Saheli Apartment situated at 220/1, Baishnab Ghata Buy Lane, Kolkata – 700 047. The said flat was measuring 1120 sq. ft. more or less on the 2^nd Floor and the consideration was Rs. 49,00,000/-. Then complainant paid Rs. 5,00,000/- to the respondent by RTGS through Punjab and Sind Bank for his flat being No. 1 on the 2^nd floor. Respondent issued money receipt and assured the complainant of delivering possession of the flat very soon. On 31/12/2018 complainant paid another Rs. 5,00,000/- also by RTGS through the said Bank, Bansdroni Branch to the complainant. Respondent did not want to make an agreement for sale for the flat as he assured the complainant that the possession of the flat would be delivered soon. On 18/01/2019 again complainant paid Rs. 8,00,000/- also by RTGS. Thereafter complainant visited the office of the respondent several times in order to fix a date for registration of the sale deed. But he found his indifferent attitude and avoiding tendency. On 15/03/2020 respondent requested complainant to hand over all the money receipts given to him to which he gave only the money receipt for Rs. 8,00,000/-. As he did not give all the money receipt he became furious. Subsequently also complainant visited the office of the respondent on 30/04/2020 in order to fix a date for registration of the sale deed when respondent told him that he would not sale the flat to him. So complainant claiming to be a bonafide purchaser and willing to get the sale deed registered by paying the balance consideration filed this case praying for several relief(s). He also claimed refund of money with interest if the sale deed is not registered in his favour.

OP did not appear to contest the case.

Now the point for consideration is whether the complainant is entitled to relief(s) in this case?

                                                               FINDINGS

Complainant filed his evidence and also documents. On going through the same it is found complainant produced two money receipts dated 24/12/2018 and 31/12/2018 and also produced bank’s statement. All these documents reveal that complainant had paid Rs. 18,00,000/- in total to the OPs, Dey Enterprise. But subsequently no progress was made in the matter of execution and registration or delivery of possession of the flat to the complainant.

The pertinent question in this case that whether the instant complaint is maintainable before this commission and complainant can be termed as consumer under the Consumer Protection Act, 2019.  

Section 2 and sub-section 7 defines the term consumer and the same may be reproduced here for convenience 

(7) “consumer” means any person who-

1. 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
2. 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____________

1. 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;
2. the expression “buys and 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;

So in this case complainant is to prove that he comes in this case as a consumer in accordance with the aforesaid definition. But what we find from the petition of complainant as well the evidence complainant had booked one flat by making advance to the respondent in a project namely Saheli Apartment. He inspected that flat and agreed to buy that and thereafter the talk of registration of the flat held between the parties and though respondent allegedly avoided to register the flat. No agreement for sale was executed. Nowhere in the petition of the complainant nor in the evidence, the element of hiring of service from the respondent in respect of that flat is found. In fact complainant agreed to buy one readymade flat from the respondent. An agreement to buy a ready flat simpliciter without hiring of service from the respondent or developer is not maintainable before a consumer commission. If complainant has any grievance he may seek relief(s) before other appropriate form. So we find the instant complaint is not at all maintainable and the same is liable to be dismissed.

Accordingly it is

                                         ORDERED

That the instant complaint case has been dismissed exparte. No order as to cost.

Dictated and corrected by me

President