HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint under Section 35 of the Consumer Protection Act, 2019 is at the instance of the complainants, namely, Sri Raja Sarkar and Smt. Anindita Sarkar against the opposite party Nos. 1 & 2 on the allegation of deficiency in services on the part of the opposite parties in a consumer dispute of housing construction.
2. The complainants filed  the instant petition of complaint against the opposite parties praying for the following reliefs:-

“a) a direction thereby directing the opposite party Nos. 1 and 2 to return the earnest/advance amount of Rs.14,20,000/- to the complainant which  was received by the opposite party Nos. 1 and 2 with 12% interest per annum from the date of payment till realization;

b) a direction thereby directing the opposite party Nos. 1 and 2 to return the amount of Rs.51,12,000/- to the complainant which was received by the opposite party Nos. 1 and 2 from the opposite party No. 3 with 12% interest  per annum from the date of disbursement till realization and also pay  an amount of Rs.1,06,748/- a cost for carrying out renovation and interior works on the said flat along with interest @ 12% per annum from the date of claim till the date of actual realization;

c) a direction thereby directing the opposite party Nos. 1 and 2 to pay an amount of Rs.2,00,000/- to the complainant as  compensation;

d) a direction thereby directing the opposite party No. 3 to cooperate with the complainants in case of foreclosure of the loan amount;

e) cost of litigation and Advocate’s fee;

f) such further and other reliefs as the Ld. Court may  deem fit and proper.”

3.  Heard the learned Advocates appearing for the parties on the point of admission  at length and in full.

4. Perused the record including the petition of complaint and documents.

5. Having heard the learned Advocate  appearing for  the complainants and on perusal of the record it appears to me that the complainants have filed a copy of Agreement for Sale dated 02.09.2023. The copy of the said Deed of Agreement for Sale discloses that the opposite party Nos. 1 & 2 and the complainants entered into an Agreement for Sale of a flat being No. 3A measuring about 1226 sq. ft. super built up area  more or less on the 3^rd floor (eastern side) along with one back  to  back car parking space (western side) measuring 120 sq. ft. more or less in the ground floor of the G+III storied building together with proportionate share in undivided land and right to use common areas, parts and installations and  properties appurtenant thereto at Municipal Premises No. 242, East Rajapur within the Ward No. 109 of Kolkata Municipal Corporation. The said document also discloses that the complainants intend to purchase the said flat at a consideration of Rs.71,00,000/- (Rupees seventy one lakh only) will execute and register the Deed of Sale in favour of the  complainants.

6. From  bare perusal of the said Deed of Agreement for Sale dated 02.09.2023 it also appears to me that by entering into the Agreement for Sale dated 02.09.2023 the complainants intend to purchase a ready flat. There is no housing construction or  development work involved in the matter. This is nothing but an attempt for sale of a ready flat. Therefore, it appears to me that  the transaction is a simplicitor sale transaction.

7. In Ganeshlal Vs. Shyam reported in (2014) 14 SCC 773, Honble Supreme Court has observed that:-

          “where a sale of plot of land simplicitor is concerned, and if there is any complaint, the same would not be covered under the Consumer Protection Act.”

8. In Brig. Davinder Singh Grewal and Anr. – Vs- R.S. Real Estate and Anr. reported in Volume III (2017) CPJ 304 (NC) Hon’ble National Commission has observed thus:

                  “In the instant case, it is manifestly clear that the agreement  entered between the parties related to purchase of agricultural land, for which payment was made by the complainants to the OP sellers and a registered agreement as well as sale deed were also executed. The OPs were supposed  to provide a pucca passage to the said land and to deliver the  possession after 42 months of the agreement. It is clear that the said activity does not fall under any item in the definition of ‘service’ as per Section 2(0) of the  Act.”

9. In view of the above decisions and looking to the contents  of the copy of the Agreement  for Sale dated 02.09.2023  executed between the complainants and the opposite party Nos. 1 & 2, it  appears that the transaction between the parties is simplicitor sale transaction. Therefore, the complainants are not a ‘consumer’ under Section 2(7) and the opposite party Nos. 1 & 2 are not a service provider under Section 2(6) and 2(42) of the Consumer Protection  Act, 2019. Therefore, the instant complaint case is  not maintainable in the eye of law and is liable to be dismissed.

10. In the result, the complaint case be and the same is  dismissed without being admitted.

11. The complaint case is, thus, disposed of, accordingly.