State Consumer Disputes Redressal Commission
Mr. Tanweer Ahmed Khan vs Merlin Projects Ltd. on 24 February, 2026
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
FIRST APPEAL NO. SC/19/A/199/2023
Mr. Tanweer Ahmed Khan
PRESENT ADDRESS - S/o, Md. Sayeed Khan. 6/14/H/7, Nilmoni Halder Lane, P.S.- New Market,
Kolkata- 700 013.,WEST BENGAL.
Mr. Junaid Ahmed Khan
PRESENT ADDRESS - S/o, Md. Sayeed Khan. 6/14/H/7, Nilmoni Halder Lane, P.S.- New Market,
Kolkata- 700 013.,WEST BENGAL.
.......Appellant(s)
Versus
Merlin Projects Ltd.
PRESENT ADDRESS - 22, Prince Anwar Shah Road, Kolkata- 700 033.,WEST BENGAL.
The General Manager (Sales, Marketing and Customer Service)
PRESENT ADDRESS - Merlin Project Ltd.. 22, Prince Anwar Shah Road, Kolkata- 700
033.,WEST BENGAL.
.......Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE BIBHAS RANJAN DE , PRESIDENT
HON'BLE MRS. MRIDULA ROY , MEMBER
FOR THE APPELLANT:
Mr. Ved Sharma, Md. Babar Ansari (Advocate)
FOR THE RESPONDENT:
Srinjita Ghosh,Saptashi Datta (Advocate)
Srinjita Ghosh,Saptashi Datta (Advocate)
DATED: 24/02/2026
ORDER
Appeal No.SC/19/A/199/2023 TANWEER AHMED KHAN & ANR. COMPLAINANTS/APPLLANTS Versus MERLIN PROJECTS LIMITED & ANR. OPPOSITE PARTIES/RESPONDENTS with Appeal No.SC/19/A/200/2023 SHABBIR AHMED KHAN & ANR. COMPLAINANTS/APPLLANTS Versus MERLIN PROJECTS LIMITED & ANR. OPPOSITE PARTIES/RESPONDENTS HON'BLE MR. JUSTICE BIBHAS RANJAN DE, PRESIDENT
1. As these two matters present and identity of issues, they are entwined for adjudication and shall be disposed of by the following consolidated judgment.
2. Both the appeals are preferred assailing the judgment and Order dated 25.05.2023 passed by the Ld. Consumer Dispute Redressal Commission, Kolkata - I (Norty) (hereinafter referred to as Ld. DCDRC) by the common judgment in connection with Complaint Case Nos. CC/221 of 2021 and CC/222 of 2021.
BRIEF FACTS :
3. Appellants of Appeal No.199 of 2023 booked one flat being No.3E, 3rd Floor, Tower No.1, "MERLIN LEGACY" measuring about 1190 Sq.ft.(built up area) along with an open car parking space described in the Complaint Petition in connection with Complaint Case No.221 of 2021. Complainants/Appellants herein entered into an agreement for sale on 23.12.2020 with the Opposite Party No.1 at a consideration money to the tune of Rs.85,50,000/- (Rupees eighty five lakhs fifty thousand) only. Complaints paid a sum of Rs.20,50,000/- (Rupees twenty lakhs fifty thousand) only against acknowledgement receipt. Complainants/Appellants applied for loans for Rs.68,00,000/- (Rupees sixty eight lakhs only) from State Bank of India, RACPC Branch and the loan for sum of Rs.39,35,506 (Rupees thirty nine lakhs thirty five thousand five hundred and six only) was granted by the State Bank of India, RACPC Branch.
4. Appellants of the Appeal No.200 of 2023, corresponding to the Complaint Case No.222 of 2021 also entered into an agreement for sale on 23,12.2020 with the same Opposite Party No.1 in respect of flat No.3C,3rd Floor, Tower No.1 measuring about 972 Sq.ft. (built up area) along with open car parking space for a consideration money to the tune of Rs.73,02,636/- (Rupees seventy three lakhs two thousand six hundred thirty six only) and out of which Complainants/Appellants paid a sum of Rs.8,75,000/- (Rupees Eight lakhs seventy five thousand only) to the Opposite Parties against acknowledge receipt.
5. Both the flats were ready for sale. Opposite Parties did not receive payments from the complainants in connection with the both the cases in terms of agreement for sale dated 23.12.2020.
6. Complainants/Appellants herein sought for time and for payment of rest consideration amount which was allowed by the Opposite parties.
7. Thereafter, on 09.09.2021, complainants/appellants received a notice for cancellation of agreement for sale from the opposite parties and they were asked to collect the refund from their office within 10 days from the date of receipt of the notice.
8. According to the Complainants/Appellants, Opposite Parties/Respondents arbitrarily transmitted the cancellation notice in violation of the terms of agreement for sale dated 23.12.2020. Accordingly, both the Complaints were filed alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.
9. Opposite Parties, in connection with both the cases, filed written version denying all material allegations of the Consumer Complaint contending inter alia that the project was completed in all respect as per completion certificate. According to agreement for sale, prior to execution of the agreement for sale, complainants were required to pay 10% of the total sale consideration and balance 90% is required to be paid on demand prior to take possession of the flats. There was also an agreement between the parties in the event of failures on the part of the complainants to make balance 90%, the Opposite Party No.1 shall be at liberty to cancel the agreement for sale.
10. Opposite Party No.1 sent several letters with reminders to the Complainants/Appellants for payment of balance consideration amount. On prayer, further time was allowed for payment of rest consideration amount. But ultimately, complainants failed to pay the balance consideration amount in spite of repeated demands. Therefore, no option was left to the opposite parties but to cancel the agreement for sale dated 23.12.2020 in connection with both the Case Nos.CC/221/2021 and CC/222/2021.
11. It has been further contended by the Opposite Parties/Respondents herein that payment schedule mentioned in the Agreement for Sale was not applicable in respect of complete project according to completion certificate. Therefore, there is no question of deficiency in service or unfair trade practice.
12. Parties to both the cases filed their respective evidence on affidavit as well as documents.
OBSERVATION OF THE JURISDICTIONAL DCDRC
13. Ld. DCDRC, before adjudicating the dispute, framed following issues :
i) Are the Complainants consumers in terms of Consumer Protection Act, 2019?
ii) Have the Complainants any cause of action to file the case?
iii) Are the Opposite Parties liable for deficiency of service?
iv) Are the opposite parties involved in unfair trade practice as alleged?
v) Are the complainants entitled to reliefs as claimed for?
vi) To what other relief or reliefs, if any, the complainants are entitled to?
14. Ld. DCDRC, after considering the entire evidence and documents on record, opined that in a transaction for ready built up flat, no element of the service of housing construction is involved. Therefore, there was no question of hiring or availing any services of the seller for transaction of sale of ready built up flat.
15. With regard to notice of termination, Ld. DCDRC observes as follows :-
"...Without entering into the technical questions relating to notice dated 09.09.2021, suffice to say that even if non service of notice makes the cancellation invalid, then the remedy lies not on a mere declaration of illegality of cancellation of notice but specific performance of the contract/Agreement.
That under section 16(c)(ii) of the Specific Relief Act, the burden is upon the Complainant to proof their readiness and willingness to perform the terms of the contract.
Section 16(c)(ii) states as follows :-
the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction..."
16. In the aforesaid view of the matter, Ld. DCDRC dismissed both the complaint cases being No.CC/221 of 2021 and CC/222 of 2021 with cost.
ARGUMENT
17. Ld. Counsel appearing on behalf of the Appellants has referred to some pages of agreement and tried to make us understand that termination letter was issued in violation of payment schedule mentioned in the agreement and it has been further contended that the opposite parties/respondents have already sold out the flat allotted to the appellants.
18. It has been further contended that the entire agreement contained one sided clauses and it was not binding on the appellants/complainants. In support of his contention, he referred to case of IREO GRACE REALTECH PVT. LTD. Vs. ABHISHEK KHANNA & OTHERS reported in AIR 2021 SUPREME COURT 437.
19. In opposition to that, Ld. Counsel appearing on behalf of the Opposite Parties/Respondents, by referring to the several clauses of the agreement as well as written correspondences between the parties, submitted that there were agreements for sale for two complete flats leaving no scope for deficiency in service. It is submitted that on several occasions, time was allowed to make payment of balance consideration amount but complainants did not do so and as a result, respondents/opposite parties had no other option but to cancel the agreement for sale. In support of his contention, he particularly relied on principle of following cases : -
i) SHIELA CONSTRUCTIONS P. LTD. - VS- NAINITAL LAKE DEVELOPMENT AUTHORITIES & OTHERS, reported in III(1996) CPJ 11 (NC).
ii) YELCHURI SUBRAHMANYAM & 2 OTHERS -VS- BUDDI
SANKARA BABU & 4 OTHERS reported in 2015 SCC ONLINE
NCDRC 476.
iii) RATNA ROY -VS- BABUL SARKAR & ANOTHER reported in
2017 SCC ONLINE NCDRC 1944.
DECISION
20. Having meticulously weighed that evidentiary record alongside the erudite submissions of the Ld. Counsel, we arrive at the following incontrovertible conclusions :-
i) On 23.12.2020, a pair of definitive sale agreements pertaining to, two ready-
to-occupy flats within the same premises, were formally solemnized between the Appellants and Respondents.
ii) Upon the auspicious occasion of securing their future abodes, the appellants dutifully tendered a preliminary tribute of coin.
iii) Through formal correspondence, the Respondents issued a firm demand for the outstanding balance; in turn, the appellants submitted a plea for an extension of time to fulfill their financial obligations.
iv) In the end, the elusive balance remained unpaid, prompting the Respondents to strike down the allotment of flats and bid the Appellants to reclaim the amount paid.
21. In course of argument, Ld. Counsel appearing on behalf of the Appellants relied on the case of IREO GRACE REALTECH PVT.LTD. (Supra), where Hon'ble Apex Court held in paragraph 17(g) as under :-
"The Agreement contained one-sided clauses, which were not final and binding on the apartment buyers, and would constitute an unfair trade practice".
22. In IREO GRACE REALTECH PVT.LTD.(Supra), Hon'ble Apex Court dealt with a Consumer Complaint claiming inter alia the direction for refund of the amounts deposited by the apartment buyers in the project, on account of the inordinate delay in completing the construction and obtaining the occupation certificate unlike the case at hand where appellants entered into agreement for sale of a ready-to-occupy flats.
23. Whereas in SHIELA CONSTRUCTIONS P.LTD.(Supra), Hon'ble National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as Hon'ble NCDRC) held in paragraph 8 as follows :
"We have purposely noted the above facts briefly as we are not inclined to go into the merits of the complaints for two reasons. Firstly as would be seen from the above facts the complainants have purchased the said plots in an auction held on 17th September, 1991 conducted by the Nainital Lake Development Authority. The allotment of the plots have been made for the amount of highest bid in the auction held on 17.9.91 on the terms and conditions contained therein. There is no hiring of services for consideration when it is an outright sale of immovable property in an auction. Secondly, this Commission is not inclined to go into the complicated questions of fact arising in this case based on voluminous documentary and oral evidence within the time bound proceedings before this Commission. The Act does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and detailed scrutiny and assessment of such evidence. The FORA constituted under the Act have no doubt the power to examine witnesses and to take evidence but such power should be exercised in such cases where issues are simple as to any shortcoming or inadequacy in the quality, nature and performance of service which the opposite party had contracted to perform for consideration. The Consumer FORA can decline to exercise jurisdiction in other cases and refer the party to its ordinary remedy by way of suit."
24. Again, in YELCHURI SUBRAHMANYAM (Supra), Hon'ble NCDRC also held in Paragraph 8 which runs as follows :-
"There is no evidence that the petitioners are working as builders. They are sellers simplicitor. It must be borne in mind that the sale of plot simplicitor is different from the plot sold by the builders or the promoters. The Appex Court in a latest authority reported in "Ganeshlal S/o. Motilal Sahu v. Shyam" in civil Appeal No.331 of 2007 decided on 26.09.2013, was pleased to hold :-
6. It is submitted that failure to hand over possession of the plot of land simplicitor cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of 'deficiency' as quoted above. We may, however, note that when it comes to "housing construction, the same has been specifically covered under the definition of 'service' by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned and if there is any complaint, the same would not be covered under the said Act."
25. In RATNA Roy (Supra), Hon'ble NCDRC handed down a principle in paragraph 6 as follows :-
"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."
26. In the case at hand, it is not disputed that Appellants/complainants booked two ready flats leaving no question of hiring or availing any services of the seller in any transaction for sale of ready built up flats. Therefore, no element of the service of housing construction is involved.
27. Relying on the principle held in the cases referred to above as well as admitted position of the fact, we are of opinion that this is not a case of deficiency in service or unfair trade practices on the part of the Respondents/Opposite Parties. Ld. DCDRC has passed a well-reasoned Order, addressing the rival contentions of the parties, and we are in agreement with the findings. The Order of the Ld.DCDRC is upheld. Accordingly, the First Appeal No.A/199 of 2023 and A/200 of 2023 are hereby dismissed by this common judgment.
28. Pending applications, if there be any, stand disposed of accordingly.
29. No Order as to cost.
30. Let a copy of this Order be supplied to parties free of cost.
..................J BIBHAS RANJAN DE PRESIDENT ..................
MRIDULA ROY MEMBER