JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Order impugned dated 1st march 2019 passed by the Learned State Consumer Disputes Redressal Commission, West Bengal in First Appeal No. A/745/2017 (arising out of order dated 28.04.2017 passed by the Learned the District Forum at Howrah in CC/356/2016) has been assailed by way of filing present application under article 227 of the constitution of the India.

2. Petitioner herein contended that petitioner filed a complain case before the District Forum contending that the opposite parties are the owner of land more or less 3 Katha 15 square feet comprised holding no. 37/1 and 37, I.R. Belilious Lane, Howrah, wherein they have constructed and developed one G+3 building over the said property and offered to sell one shop room measuring about 150 square feet area together with undivided proportionate share of land, including all sorts of common facilities on the ground floor and the petitioner herein for earning his daily livelihood, desired to purchase the same and accordingly one agreement for sale was prepared on 04.04.2012, which was notarized on 04.05.2012. The total consideration price for the same was settled at Rs. 12 lakh and petitioner paid earnest money of Rs. 2 lakh and obtained receipt on 21.04.2012. On 07.06.2012 the petitioner further paid Rs. 5 lakh by two separate cheques and the opposite party no. 1 herein issued two separate receipts. On 23.07.2012 the petitioner further paid Rs. 67,000/- by cheque being no. 255664 dated 24.07.2012 after obtaining money receipt on 23.07.2012. Thereafter petitioner paid Rs. 1 lakh 33 thousand by cash.

3. Petitioner further contended that the petitioner repeatedly requested the opposite parties to receive the rest amount to execute the deed of sale but they have deliberately failed to discharge their duty and for which the petitioner sent a legal notice through his Learned advocate on 08.11.2016 but as opposite parties did nothing the petitioner herein was compelled to file the complain case before Learned District Consumer Dispute Redressal forum at Howrah being case no. 356 of 2016, which was decided by the said Forum on 28.04.2017, allowing the said case ex-parte with costs against the opposite parties, with a direction to execute and register the sale deed within one month and also to pay Rs. 50,000/- out of which Rs. 40,000/- is to be deposited at the Consumer Legal Aid A/c and the rest is to be paid to the petitioner herein towards compensation.

4. Feeling arrived by the said order the opposite parties herein filed aforesaid appeal before the State Consumer Disputes Redressal Commission, West Bengal, being appeal no. 745 of 2017, which came up for hearing on 01.03.2019. Learned State Commission observed that the case of the petitioner does not come within the purview of Consumer Protection Act, 1986 and set aside the order of the learned District Forum but liberty was given to the petitioner to approach before appropriate court in accordance with law for getting the said deed executed.

5. Mr. Partha Pratim Roy learned counsel appearing on behalf of the petitioner submits that the matter may be decided as per provision of the Building Act along with the provisions under Consumer Protection Act. He further submits that the opposite parties have received Rs. 9 lakh out of Rs. 12 lakh. Mr. Roy further contended that in the agreement the opposite parties have clearly mentioned to provide “service” to the petitioner and as per written agreement the petitioner has invested huge money towards the service and as such the dispute comes within the definition of “consumer dispute.” In fact State Commission has erred in law and facts in deciding the issue in favour of the opposite partie