IMPORTANT POINT
In a transaction for sale of a ready built up flat, no element of service of housing construction is involved.

V.K. Jain, Presiding Member—The case of the complainant is that her brother-in-law late Madhab Roy was the owner of property No. 18(17), Purbachal in District 24 Parganas of West Bengal, he having constructed a G+2 storied building in terms of the sanction dated 20.9.2004. It is alleged in para 3 of the complaint that while engaged in the construction of the building, the deceased entered into an agreement for sale of the second floor flat to the complainant for a construction of Rs.3,10,000/- receiving a sum of Rs.60,000/- as the advance sale consideration. The aforesaid payment is stated to have been made in cash. This is also the case of the complainant that the aforesaid payment was followed by further payments aggregating to Rs.1,99,650/- on different dates. All the aforesaid payments are stated to have been made in cash. The deceased Madhab Roy having died a consumer complaint was instituted by respondent No.1 Babul Sarkar, brother-in-law of the deceased impleading wife and three others including his own wife Smt. Kalpana Sarkar, as the opposite parties.

2. The complaint was resisted by the petitioner / respondent No.1 Smt. Ratna, who is the wife of Shri Madhab Roy, on several grounds.

3. The District Forum having ruled in favour of the complainant, the petitioner approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed, she is before this Commission by way of this revision petition.

4. The agreement which is relied upon by the complainant and is the foundation of his case, to the extent it is relevant, reads as under:—

“And Whereas the Vendor herein in view to construct a G+2 storied building sanctioned a building plan from Barrackpore Municipality vide Memo No.441/2004-05/BG dated 20.9.2004, and construction at G+2 storied building over the First Schedule mentioned property as per the sanctioned building plan.

And Whereas after constructing the said G+2 storied building the vendor herein sold and transferred the Ground floor of the said building and now the vendor is the owner of the first and second floor of the said G+2 storied building.

And Whereas the purchaser applied for purchasing on ownership flat being Flat No. “I” on the second floor of the said G+2 storied building which is more fully and particularly described in the Schedule II hereunder written.

And Whereas the purchaser with intent to purchase the said flat being satisfied themselves as to the title of the said Schedule II mentioned property belonging to the vendor”.

5. 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.

6. 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 rea