SHYAMAL KUMAR GHOSH, HON’BLE MEMBER
This appeal has been directed against the impugned order dated 01.02.2021 passed by Ld. DCDRC , Kolkata Unit –II ( Central) in CC/211/2020 where the Ld. District Commission concerned while disposing of the said CC case being No. CC./211/2020 alongwith MA being No. 80/2021 disposed of the same on contest with the observation of non maintainability of C.C. Case and being aggrieved by such order the present appeal has been preferred by the appellants/complainants.
Brief fact of the case is that the opposite parties constructed the several flats in a housing complex and the complainants purchased one flat alongwith car parking space for their residential purpose. The opposite parties are ‘product seller’ as per provision of CP Act, 2019 . The complainants paid total consideration amount of Rs. 83,54,180/- for the said flat and also paid Rs. 5,00,000/- for covered car parking space. The OPs already executed and registered the Deed of Conveyance to that effect in favour of the complainants. The flat was also handed over to the complainants on 20.03.2020. After registration and the execution of the said Deed of Conveyance , the said flat has been suffering from many defects. The OPs delivered the said flat to the complainants in absolute inhabitable condition. The complainants further alleged that the said unit/flat has been constructed by using bad quality material and workmanship and to that effect the complainant issued a legal notice dated 28.08.2020 upon the OPs requesting for appointment of an independent Civil Engineer to conduct thorough survey in presence of both parties. But the OPs kept mum causing serious gross negligence and deficiency in service as well as unfair trade practice on the part of the OPs. Hence, the complainants knocked at the door of the District Commission for getting proper relief/reliefs as prayed for against the OPs.
The OPs contested this case by filing written version stating interalia that the complainants already took the possession of the flat being flat No. D-3 type HIG-D and CP09 with satisfactory condition in all respect. The complainants inspected the flat and they were well aware that the flat in question was constructed five year’s back and the said flat was old one. After knowing it fully well, the complainants purchased the same with full satisfaction . It is also stated that during the natural calamity of Amphan overhead water tanks were affected but those have been properly installed and repaired by the OPs in due course. The drainage system, sewerage , etc. have also been properly installed and repaired . By filing one MA application being No. 80/2021, the OPs raised a voice for challenging the maintainability of the complaint petition being No. 211/2020 and stated that it was a case of sale of a readymade flat and it does not come well within the purview of the CP Act, 2019. The OPs further stated that the disputes between the parties in respect of sale of readymade flat which is nothing but a sale simplicitor and does not come within the periphery of CP Act,2019. So, the complainants are not to be treated as ‘Consumers’ as per the said Act of 2019. Hence, the OPs prayed for dismissal of the consumer complaint being No. CC/211 / 2020 with cost.
In course of hearing, Ld. Counsel appearing for the appellants/complainants drew attention to the observation of Ld. District Commission and pointed out that the Ld. District Commission completely ignored and overlooked the materials and documents on record while passing the impugned order dated 01.02.2021.
The ld. counsel for the appellants mainly pressed upon Sec-2(37) of C.P. Act 2019 which provides “Product Seller” and the present complaint clearly comes well within the purview of “service provider” as well as “product seller”. The ld counsel also argued that as per General Terms and Conditions of op/housing board, the complainants would be entitled to lodge complaint against op after service of notice within 5 years if there are any structural defects in workmanship and quality after getting possession of the flat in question. There is a gross negligence and deficiency in service on the part of ops/housing board and the complainants are entitled to get relief/reliefs as prayed for against the ops.
The ld counsel for the respondents argued that being satisfied with the construction work, the complainants made full payment and got possession of the flat in question. The Deed of Conveyance was also executed and registered in favour of the complainants. So the question of deficiency in service on the part of ops / housing board does not arise. Accordingly the ld. counsel for the ops prayed for dismissal of consumer case with cost.
Heard the ld. counsel for both parties. Perused all relevant documents and papers lying with the case record.
After observing materials on record and Final Order/Judgement passed by ld. DCDRC, we try to clarify two pertinent issues involved in the instant appeal:-
1. Issue on the point of law of estoppels:-
It is the concept where two parties enter into an agreement by way of Deed of Conveyance as to certain facts then neither he or his representatives or any person claiming under him can deny the actual facts mentioned and agreed in the Deed. When a person tries to take a legal action that would conflict with his previously given statements, claims or acts, this legal principle would prohibit him from doing so. So the complainant would be stopped from bringing a consumer complaint against the op who acted pursuant to the commands of the complainant.
We have perused the sale deed dated 13/01/2020. The para no-7 in page no-3 of the said Deed clearly reveals that the purchasers/complainants have further agreed in the matter that no complaint regarding design, layout, accommodation, specification, fittings and fixtures etc and facilities provided in the apartment or in the project shall be entertained by the Board after this sale or transaction “except structural problem.”
Secondly, the complainants have taken over physical possession of the Flat no-03, type-D, 3rd floor and CPS no-09 of Purbahna H.P, West Bengal Housing Board dated 20/03/2020 in good and satisfactory condition in all respects, fittings and fixtures provided in the flat, physically verified along with inventory list handed over to them which is revealed from the declaration made by the complainants dated 20/03/2020 (Anx-X1).
At the time of hearing ld. counsel for appellant has pressed upon exceptional clause ie “structural problem”. But in this respect, we hold that the plea of exceptional clause ie structural problem can’t be entertained at this stage as the subject flat along with car parking space have already been taken by the complainants in good and satisfactory condition(in all respects)from the ops/housing Board. So, as per above observations it is clear to us that the present claims made by the complainants are clearly barred by the Principle of estoppels.
2. Issue on the point of cause of action:-
It is admitted that by way of lottery regarding allotments of the flats, the complainants being satisfied with the construction work paid full consideration amount of Rs 88,54,180/- to the ops/housing Board and got possession of the flat. The Deed of Conveyance has already been executed and registered in favour of the complainants which is clearly revealed from the Sale Deed being no-1426/2020 dated 13/01/2020. ( Anx-A)
Now, it is clear to us that as the service providers the ops have already provided proper service to the complainants after receiving the full consideration amount and accordingly the relationship between the consumer and service provider comes to an end. So, there is no cause action against the ops/housing Board in order to get any claim from the end of the ops.
Keeping in view of the above observations, there is no hesitation to hold that the instant appeal has no leg to stand upon and as such said appeal stands dismissed without cost. We do not pass any remarks regarding other observations taken by the ld. DCDRC.
