Date of Filing           : 01.06.2022 

Date of Disposal      : 10.06.2022

F I N A L    O R D E R

Order dated 10.06.2022

 Today the instant case is fixed for admission hearing.  Ld. Advocate for the complainants is present.

The case is taken up for admission hearing.

Ld. Advocate for the complainants submitted that the complainants with an intent to purchase a plot of land ,which is situated under  District: Nadia, P.S: Nabadwip, J.L No:-20, Mouza:- Nabadwip ,  L.R. Khatian No:- 4250/1 , LR plot No. 7273,  area of land 7.5 decimal, out of 13 decimal , entered into an agreement for sale  with the O.Ps on 15.11.2021  at  a consideration of Rs.46,00,000/-( Rupees Forty Six Lakh only) and out of which the complainants have paid 3,00,000/-( Rupees Three lakhs only)  as advance amount and the balance amount would be paid at the time of handing over possession and execution of the deed of conveyance.

Ld. Advocate for the complainants further submitted that on 25.11.2021 Ld. Advocate for the O.Ps provided them two registration searching slip in respect of the aforesaid plot of land but, it was not satisfactory to them and further on 31.01.2022 both the parties to the case have entered into with an additional agreement by which both the parties decided to increase the time limit from 31.01.2022 to 28.02.2022.

It is further submitted by the Ld. Advocate for the Complainants that the Complainants have further paid Rs. 5,00,000/ ( Rupees Five Lakh only) to the O.P No:1.

  Ld. Advocate for the complainants further submitted that upon searching of the documents, conducted on the side of the Complainants over the said land they have come to know that the schedule plot of land has been recorded as “ Doba” in the R.O.R of the Nabadwip B.L & L.R.O office record, but the O.P No:1 earlier had stated to them that the character of the land in question is “Viti”.

Ld. Advocate for the Complainants further submitted that there is a building existing over the  schedule plot of land and the Complainants intended to purchase the same and as such they are home buyers and the case is maintainable before this Dist. Commission as they are consumers under the O.Ps as per the definition of Consumer U/S-2(7) of the C.P.Act, 2019.

Ld. Advocate for the Complainants further submitted that the O.Ps did not disclose earlier about the character of the land in question and suppressed the fact and made false covenant pretending that he had a good title over the land in question and when the Complainants asked for refund they denied to pay back the same, which prompted them to serve a lawyer’s notice on 11.04.2022 against the O.Ps, despite of such the O.Ps failed and/ or neglected to pay back the advance amount of Rs.8,00,000/ ( Rupees Eight Lakh only), and as a result of which the Complainants have compelled to file this case against the O.Ps alleging deficiency of service and  chose to come under the shelter of the District Commission for the reliefs as prayed for in the petition of Complaint and redressal.

Heard the Ld. Advocate for the Complainants at length.

Perused the complaint petition and other materials on record.

 It transpires from the complaint petition and other materials on record and having due consideration of the submission of the Ld. Advocate for the complainants that the complainants had entered into an agreement for sale with the O.Ps on 15.11.2021 for purchasing a plot of land as mentioned above at a consideration of Rs. 46,00,000/ ( Rupees Forty Six lakhs Only) and out of which he paid Rs. 3,00,000/ as advance amount and again by the strength of additional agreement made by and between the parties dated 31.01.2022 , the Complainants paid Rs. 5,00,000/( Rupees Five Lakh Only) , totaling Rs.8,00,000( Rupees Eight Lakh Only).

It is the contention of the Ld. Advocate for the Complainants that due to mismatch of the character of the land in question and other discrepancies, which were revealed afterwards from the searching conducted on their behalf, the Complainants chose to not to go any further with the agreements made as noted above and alleged that the O.Ps made suppression and violated the terms and conditions of the agreements and further caused deficiency in service against them as the O.Ps did not refund the advance amount of Rs.8,00,000/( Rupees Eight Lakh Only) despite serving legal notice and therefore they filed this instant case before this District Commission for proper redressal.   

  Further, upon scrutiny of the documents annexed by the Complainants it is found that the property in question is an immovable property and no building is existing over there and in the schedule of the agreement dated 15.11.2021 it is clearly mentioned that  it is a vacant land and therefore no element of hiring of any service is involved.  The land is not also under any development project.

 It is settled principle of law that the consumer Fora. cannot entertain, adjudicate or try any case where the subject matter is an immovable property.

Further, the term ‘service’ has been defined u/s 2(42) of the C.P.Act,2019 which runs as follows: “ 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.”

 It is to be noted that the term ‘housing construction’ has been used in the section.

It is abundantly clear that in order to maintain a consumer complainant before the District Commission or the State Commission or the National Commission, the complainant must be a consumer as defined u/s 2(5) of the C.P.Act,2019 and the dispute must be a consumer dispute and the allegation of the complainant should be either for defect of goods or for deficiency in service against the O.Ps. 

 In view of this Commission the complainants are not consumers as per the definition of consumer as provided u/s 2(7)(ii) of the C.P.Act,2019 because the complainants did not hire or availed of any service for a consideration  which has been paid.

Here, the complainants are not consumers under the O.Ps, as the element of service is lacking over here. The relationship in between the complainants and O.Ps is not purchaser- service provider and the dispute is not a consumer dispute at all.

  In this connection, a case is required to be discussed which is very relevant over here titled as Ratna Roy Vs Babul Sarkar & Ors, reported in 2017(4) C.P.R-690 wherein Hon’ble National Commission has been pleased to hold the view that the Consumer Forum has no jurisdiction to try and entertain any case relating to ready to built up flats. 

 In para -5 of the said ruling Hon’ble National Commission was pleased to observe that “It is evident from the aforesaid statements contained in the agreement relied upon by the complainant himself that the said agreement was executed after the house had already been constructed. It is clearly stated in the agreement that after constructing the house the vendor had sold the ground floor flat and had remained the owner of the first and second floor flats. It further shows only thereafter the complainant applied to the vendor for purchasing the flat No:1 on the second floor of the building. The said flat was described in schedule-II to the agreement. Though, the case set out in the complaint is that a sum of Rs. 60,000/ was received from the complainant during construction of the building, the aforesaid averment cannot be accepted in view of the agreement relied upon by none other than the complainant himself. If the agreement is a genuine document, it is evident that the deceased had entered into an agreement to sell the second floor flat to the complainant and the said flat had already been constructed before the agreement was executed.”

Further, in Para-6 of the said judgment the Hon’ble National Commission was pleased to observed that “if a person enters into an agreement to purchase a ready built up flat, such a transaction would not be covered under the Consumer Protection Act since the purchaser cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. There is no question of hiring or availing any services of the seller in a transaction for sale of ready built up flat. The term service has been defined in the Consumer Protection Act to include housing. Therefore, if there is hiring or availing of services for the purpose

of housing construction, only then, the buyer would be a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act. In a transaction for sale of a ready built up flat, no element of the service of housing construction is involved. Therefore, neither a consumer complaint would be maintainable in respect of such a transaction nor the Consumer Forum would have jurisdiction to entertain such a complaint

     It was held  by the Hon’ble Supreme Court in Nitin Construction Pvt. Ltd Vs Union of India & Ors[ Reported in II(2002) C.P.J-4( S.C)] that when the transaction is a sale simpliciter, that does not come within the purview of the Consumer Protection Act,1986. And that is the settled principle of law.

In an unreported judgment, Hon’ble Justices of the Supreme Court Sri. Hemant Gupta and Sri. A.S. Bopanna on 11.09.2021 observed that Consumer Complaints on the ground of deficiency in service related to transfer of title of the immovable property is not maintainable. The expression service includes housing construction and not allotment of a site or a plot.

 Further, in Smt. Simran Vaswani & Anr Vs Vimal Kumar Sigh, Hon’ble State Commission, Chhattisgarh, in Appeal No: F.A/462/2017 dated 09.09.2017 was pleased to hold the view that purchaser of an immovable property is not a consumer.

In view of the above discussions and having due regard to the solemn orders and observations of the Hon’ble National Commission and Hon’ble Supreme Court and Hon’ble State Commission, this Commission is of the considered opinion that the present complainants are  not  consumers under the O.Ps and the dispute is not a consumer dispute at all and there exists no relationship between the complainants and the O.Ps as consumer- service provider relationship as the complainants did not hire or availed of any kind of service from the O.Ps and as the property in question is an immovable in nature and from the deed of agreements it is also crystal clear that the transactions were for outright sale of an immovable property  and therefore this District Commission has no power to admit, entertain, try or adjudicate the case and therefore the instant case is not maintainable and liable to be rejected.

The complainants may ventilate their grievances against the O.Ps in any other Forum of Law/ Authority, if it is not otherwise barred.

       Accordingly, the case is dismissed without being admitted.

Hence,

 It is ordered that consumer Complaint C.C- 59 of 2022 is dismissed without being admitted. 

 Liberty is given to the complainants to file the complaint in any other forum of law/ Court of justice, if not otherwise barred.