The present case emanates over a complaint filed by one Sri Sakti Pada Maiti against Sri Swapan Mondal and Smt. Jhuma Bhattacharjee, praying for a direction upon the OPs to execute the Deed of Sale in his favour together with some allied reliefs as stated in the petition of complaint.

Fact, in brief, are that Complainant was occupying one room at Premises No. 68E/600, Raja Subodh Chandra Mallick Road, P.S. Jadavpur, Kolkata – 700 092 as licensee under the OP No. 2.  It is further stated that OP No. 1, the developer, entered into an agreement with the Complainant on 02-01-2012, whereupon he agreed to give/deliver a flat measuring 400 sq. ft. free of cost within one month of getting C.C. from the K.M.C.  Further, the OP No. 1 also gave his due consent to register and mutate the proposed flat in favour of the Complainant.  In terms of said agreement, the Complainant vacated the said premises and shifted to a rented house, the rental of which was initially borne by the OP No. 1.  It is alleged that since 08-02-2013, the OP No. 1 failed/neglected to pay any rent.  Further allegation of the Complainant is that although the construction of schedule flat has already been completed, but the OPs have not kept their word of delivering the promised flat in favour of the Complainant.  Hence, this case.

OP No. 1 contested the case by filing WV, whereby he denied all the allegations of the complaint.  It is stated that the Complainant vacated the room on 02-01-2013 after taking a sum of Rs. 50,000/- from him.  This OP denied that he paid the rent of the rented house of the Complainant, as stated in the petition of complaint.  It is also claimed by this OP that the so called agreement is not at all enforceable as the same is void.  This OP, thus, prayed for dismissal of this case.

OP No. 2 also filed WV in support of her defense, whereby she denied the material allegations of the complaint.  It is the case of this OP that the OP no. 1 has got no right to transfer any portion of the property in question as because he is not the owner of the property and he has got no right, title and interest over the property in question.  It is further stated that she was not a party to the purported agreement in question contending further that OP No. 1 has got no right to execute any agreement for sale in respect of the property in question.  If any agreement has at all been made by the OP No. 1 in favour of the Complainant, that has been done fraudulently and for the purpose of harassing the OP No. 2.  This OP too prayed for dismissal of this case.

Points for consideration

1.Whether the Complainant is a consumer?

2.Whether there is any deficiency in service on the part of the OPs, as alleged?

3.Whether the Complainant is entitled to the reliefs prayed for by him?

Decision with reasons

Point No. 1

For better illustration, the definition of “Consumer” as  stipulated in Sec. 2(1)(d) of the Consumer Protection Act, 1986, is appended below.

 "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 then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any 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 services 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 services other
then 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;

Explanation.-For the purpose of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment”.

Reading between the lines of aforesaid stipulations lead us to infer that “free services” have been kept outside the purview of the 1986 Act.  In this case, it is stated by the Complainant in his petition of complaint that in terms of the agreement executed in between the OP no. 1 and him, the former agreed to deliver a 400 sq. ft. flat in favour of the latter ‘free of cost’.  Thus, the very essence of “financial consideration” is missing in the present case.  That being so, we are of opinion that, the Complainant does not qualify as a “Consumer” within the meaning of Sec. 2(1)(d) of the Act.

This point, thus, goes against the Complainant.

Point Nos. 2&3:

Both these points are taken up together for the sake of brevity of discussion.

In the light of our findings that the Complainant is not a ‘consumer’ within the meaning of Sec. 2(1)(d) of the Consumer Protection Act, 1986, we refrain from delving into these issues.

These points are, thus, disposed of accordingly.

Hence,

O R D E R E D

that RBT/CC/186/2016 be and the same is dismissed on contest against the OPs.  No order as to costs.