Order No. 06   Date : 01.02.2021

            To day is fixed for hearing Miscellaneous Application dated 28.01.2021 filed by the OPs.

            Ld. Advocates for the parties are present. Complainants file W/O against the impugned application of the OPs. Copy served. Let the W/O be kept with the record.

            Heard the Ld. Advocate for the OPs who submits that the West Bengal Housing Board constructed the building and on completion of its construction offered to sale the constructed flat to the public at large. He further submits that    the complainants including other intending purchasers applied for allotment of flats, lottery was concluded and successful candidate were allotted flats in terms of their applications. According to him, the complainants became are the successful candidates of the flat in question and being satisfied with the construction work made full payment and got possession of the flat. Deed of Conveyance was executed and registered in favour of the complainants. He further allege that the complainants and other intending purchasers on inspection of the building purchased flats. As such, the question of deficiency in service on the part of the OPs does not arise at all. The dispute alleged by the complainants is not amenable under the consumer protection act, 2019. Accordingly, the Ld. Advocate for the OPs pray for dismissal of the complaint on the ground of non maintainability.

            On the contrary, the Ld. Advocate for the complainants submits that U/s 2 (g) of CP Act, 2019 provides ‘deficiency’ means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by the or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation of any service. He further submits that sections 34 / 35 / 2 (37) of CP Act, 2019 provides liability action and product seller. According to him, the present consumer complaint clearly comes within the purview of Section 2 (37) of the Amended CP Act, 2019 and the general terms & conditions of OPs, if there is any structural defects in the workmanship and the quality is brought to the notice of WBHB within 05 years, the same will be entertained.

            We have heard the Ld. Advocates for the parties and also perused the consumer complaint, Written Version; impugned application coupled with it’s W/O thereto. Fact remains that the OPs have constructed the building and on its completion offered to sale of the constructed flats to the public at large. It is also admitted fact that the complainants and the other intending purchasers made  applications for allotment of flats and the complainants were the successful candidates. The subject flat was allotted to the complainants who inspected the building, its related documents and on being satisfied purchased the disputed flat against full payment. Sale Deed was executed and registered and possession was delivered to the complainants. There was no agreement for sale between the parties. In a decision reported in 2016 CPR 156 (NC) the Hon’ble NCDRC has been pleased to observe that in case of sale of a constructed flat the complainant does not fall within the definition of consumer under the Consumer Protection Act because there is element of hiring or availing of service and the OPs have not committed any deficiency in service.

            In view of the discussion above, we are of the view that the dispute in question is not at all a consumer dispute and the consumer complaint is not maintainable in its present form and in law. Accordingly, the prayer of the OPs is allowed on contest but without any litigation cost.

            Thus, MA being No. 80 of 2021 is disposed of.

            Consequently, Miscellaneous Application dated 13.10.2020 filed by the complainants is not tenable in view of above observation. Thus, MA being No. 253 of 2020 is also disposed of.

            As a result, the consumer complaint is not maintainable in its present form and in law and dismissed on the ground of non-maintainability.

            The complainants may agitate their grievance before the competent Court of Law, if so desired.