DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C. C.  No. 292/2021

           Date of Filing:                         Date of Admission:                               Date of Disposal:                

          27.12.2021                                   03.01.2022                                        30.12.2022

P R E S E N                   :-       Smt. Monisha Shaw …………………. Member.

                                       :-        Sri Abhijit Basu……………………….Member

JUDGMENT / FINAL ORDER

            The complainant filed a case U/S. 35 of C.P. Act 2019 O.P appeared and filed a petition upon maintainability ground.

            The application and objection for non-maintainability petition taken up for hearing.

            Heard both the parties.

            In brief the case is one agreement for sale was made between the parties and one Sukamal Kundu during his life time dated 29.01.2010 in respect of complete flat on ground floor of the premises No.464/474, M.B. Road, P.S. and P.O. Nimta, Kolkata-700049, Dist-North 24 Parganas. The petitioner paid full consideration amount of Rs.5,50,000/- by cash and cheques on several dates. The O.Ps did not register the sale deed and did not submit the original document which was mortgage at Bank by the O.Ps Sukumar Kundu handed over the peaceful possession of the flat to the complainant.

            Ld. Advocate for opposite parties submit that the limitation period is over for filing the case and the case is filed beyond the limitation period. The case is not under the having construction. The case is complete constructed flat in ground floor. The O.Ps not engaged any person for sale of constructed house or flat. Seller and / or owner directly sale the immoveable property to the complainant. Ld. Advocate also submits that they are residing at first floor and the case property is ground floor. The agreement for sale was made between vendor and purchaser for sale a complete flat, which is not come under the purview of Consumer Protection Act. The Ld. Advocate for complainant submits that there is no deficiency of service, it is a contract in between seller and purchaser with complete flat in ground floor with common amenities. It will not come under the C.P. Act.

            The Ld. Advocate for complainant submits that it is a flat along with common amenities is and / or facilities is and common roof right, as per agreement of sale it is clear that it is a flat which opposite parties agreed to sell and made the agreement for sale, which is annexed with the complaint. In page No.3 of the agreement mentioned it clearly. The Ld. Advocate for complainant submits that as all points and / or all clauses of agreement for sale is not completed hence limitation shall run as continuous cause of action and also submitted on observation of Hon’ble N.C.D.R.C being Revision petition 4437/2014. The observation is as ‘Since the conveyance Deed has not been executed or registered in favour of complainant, it is continuous cause of action- complaint is within time .’ Hence the case is maintainable.

            Following issues are framed for the purpose of decision

1.Whether the case is maintainable or not?

Contd/-2

C. C.  No. 292/2021

:: 2 ::

Decision with Reasons

            Considering the facts and circumstances of the case as well as nature and character of the case all the points are interlinked with each other as such all the points are taken up together.

            This is a simple case for agreement for sale and / or conditional agreement for sale between the house owner and the purchaser i.e. personal agreement between the private parties. Complainant approached the O.Ps and they agreed to sell the ground floor of the house. The complainant is not denied that it is G+1 building and it is complete flat / part of the complete house at the time of argument. There was no stipulation for development of property by raising construction or for rendering any service under terms of agreement. It was an agreement for sale of a part of complete house of civil dispute. It is a case of sale simpliciter, complainant is not a consumer. In other word if the proposal for opposite parties for sale a really flat  or complete a portion of house and opposite party offered to sell the ready

or complete flat without there being an element of service or promise by opposite party, in that event as no service was offered/ rendered by opposite party, pursuant to agreement between parties complainant cannot be treated as a consumer as envisaged under the Consumer Protection Act, 2019. Hence the opposite parties had merely entered into an agreement for sale of immovable property i.e. complete part of the house without there being any obligation caused by them to render any short of service, hence complainant cannot be treated as consumer.

            As per section 2 (37) (ii) (a) of the Consumer Protection Act it provides that (ii) ‘Service Provider but does not include-

1. a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of house or flat’. In the instant case opposite parties are not engaged any person for sale the immovable property and did not agreed for provide service. Hence the opposite parties are not Consumer under Consumer Protection Act, 2019.

Consequently, we found that the complainant is not a consumer as per Consumer Protection Act, 2019.

            Hence,

                         It is Ordered

            that the non-maintainability petition is allowed and the complaint is dismissed without costs.

Let plain copy of this order be given to the parties free of cost.

Dictated & Corrected by

           Member                                                   Member