Ld. Advocate of the Petitioners/O.Ps. is present. Ld. Advocate of the O.P./Complainant is present.

Instant Misc. Application is taken up for further hearing.

Heard the Ld. Advocates appearing for the respective parties in full.

The Ld. Advocate appearing for the Petitioners/O.Ps. pointedly submits that initially one application on behalf of the Petitioners/O.Ps. was filed challenging the maintainability of the case on the point of limitation and the said application has been registered as Misc. Application no.208/2022 and upon hearing the parties vide order dated 13.10.2022 this Commission has rejected the said Misc. Application being no.208/2022. He also argued that present Misc. Application has been filed on the ground of non-maintainability and is mainly hinges upon purely that even if the allegation of Complainant is accepted that does not make out any case under the periphery of the C.P. Act, 2019, because even by attaching any stretch of imagination nowhere Complainant has been detected as consumer and he further vouched that present case is not maintainable before this Commission inasmuch as u/S 2(7) of the C.P. Act, 2019 Complainant is not at all a consumer.

Per contra, the Ld. Advocate appearing for the O.P./Complainant vehemently opposed the submissions advanced by the Ld. Advocate appearing for the Petitioners/O.Ps. and contended that the present Misc. Application is not at all maintainable because of the rule of law of res judicata and in support of his argument he also mentioned that earlier Misc. Application no.208/2022 had been rejected initiated by the Petitioners/O.Ps. on the ground of maintainability. He further highlighted the Real Estate Development Act, 2016. He also tried his best to convince this Commission to the effect that the agreement made in between the parties relating to a flat in question and obviously such agreement comes within the ambit of C.P. Act, 2019. He also tried to highlight the word ‘apartment’ and basing upon that he tried to draw attention of this Commission that in the building in question only in respect of only a flat an agreement was executed and such agreement was made in between the parties for sale and as such in all fairness the case of complainant is very much maintainable under the C.P. Act, 2019.

Regard being had upon the submissions of Ld. Advocates appearing for the respective parties and touching upon the materials on record it will not be out of place to mentioned that Section 2(42) of the C.P. Act, 2019 speaks regarding service and “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;” So, it is palpably and nakedly goes to show that service does not include the rendering of any service free of charge or under a contract of personal service.

On reading and re-reading the contents of the agreement in question made in between the parties and also keeping in view the contents of petition of complaint this Commission is of the clear view that those indicate about service “as personal service” and as such in no circumstances present O.P/Complainant can be stamped as consumer under Section 2(7) of the C.P. Act, 2019. Now, another point is that in spite of rejection of Misc. Application no.208/2022 by this Commission on the point of maintainability how far the present Misc. Application no.157/2023 is maintainable. To answer to this question first of all it may be noted that the said Misc. Application no.208/2022 was rejected where petitioners/O.Ps. challenged the case being barred by limitation i.e. on the point of limitation; but scenario of this present instant Misc. Application wherein petitioners/O.Ps. have emphatically highlighted that complainant is not at all consumer in view of the C.P. Act, 2019. Obviously this Commission finds force and spirit in the submissions advanced by the Ld. Advocate appearing for the Petitioners/O.Ps. and this Commission is further of the view that rule of res judicata in the present circumstances will not come into play relating to the Misc. Application which  is under our consideration.

Accordingly, considering the attending facts and circumstances of the case and keeping in view the entire materials on record this Commission is of the opinion that the instant Misc. Application should be allowed. Accordingly this Commission is doing that.

Thus, the Complaint Case being no. 419/2022 is not maintainable.

Of course, O.P/Complainant is at liberty to take redressal of his case (grievance) before any competent Court of Law.

With this observation the instant Misc. Application being no. MA/157/2023 is disposed of.

Dictated and corrected by

[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT