Order No. 4                        

Ld. Advocate for the complainants is present.

The case it taken up for admission hearing.

Perused and considered the complaint application in detail along with photo copies of the documents annexed thereto.

Heard Ld. Advocate for the complainants.

It has been contended by the complainants that the opposite party no.1(a) and 2(a) are the joint owners of Premises no.1A, Heramba Das Lane. Police Station – Amherst Street, Kolkata – 700 009.

The opposite party no.1(b) is one of the Director of opposite party no.1(a) and opposite party no.2(b) of the Director of opposite party no.2(a). The complainants being the actual occupiers of the property mentioned in the 2^nd schedule of the complaint application entered into an agreement for ‘Restoration-cum-Sale’ on 12/12/2020 and in terms of the said agreement the complainants shall hand over their existing occupied room measuring about 110 Sq.ft. carpet area with common user of bath and privy, fully mentioned in the 2^nd schedule as referred above to the opposite parties.

It is further stated that in terms of the agreement, complainants are liable to pay a sum of Rs.1,500/- (Rupees one thousand five hundred) only per Sq.ft. for 80 Sq.ft. which is mentioned in the 3^rd schedule in the complaint application as a part of construction cost and it was agreed with that the complainants shall receive complete physical possession of the shop room measuring about 80 Sq.ft. of the carpet area in the ground floor as mentioned in the 3^rd schedule as referred above.

According to the agreement the opposite parties will complete the construction and handover one shop room on the ground floor measuring about 80 Sq.ft. carpet area within 18 months from the date of said agreement i.e. on or before 11/06/2022. It is the case of the complainants that one Shyamal Das and Sailen Das the maternal uncle of complainant no.1 were the joint tenants in respect of a room on the ground floor of Premises no.1A, Heramba Das Lane. Police Station – Amherst Street, Kolkata – 700 009. The said Shyamal Das executed a registered joint Power of Attorney on 12/06/2010 in favour of the complainant no.1. It is also mentioned that the previous land lords of the Premises Sri Samarandranath Bhadra and Jhuma Bhadra filed a case for eviction being SCC Suit No.385 of 2006 against the joint tenants Shyamal Das and Sailen Das which was decreed ex-parte. Subsequently the above said  joint tenants filed Misc. Case under Order 9 Rule 13 read with Section 151 of C.P.C. and during pendency of the same a compromise petition has been filed by the parties thereto  and the disputes between them was settled amicably consequently the Misc. Case had ended with an order of dismissal. Thereafter on 15/12/2014 another joint tenant Sailen Das executed a Will in favour of the complainant no.1 with regard to the said tenancy. According to the complainant after completion of construction work the opposite parties did not deliver the possession of the shop room to the complainants mentioned in the third schedule of the complaint application which is clearly deficiency in service on the part of the opposite parties. Hence, this case.

It is apparent on the face of the record that the complainants parted with the possession of one old room measuring about 110 Sq.ft. carpet area with common user of bath and privy of Premises No.1A, Heramba Das Lane. Police Station – Amherst Street, Kolkata – 700 009, which is fully described in the second schedule of the complaint application.

The complainants in their complaint application clearly stated that the room mentioned in the 2^nd schedule of the complaint stands in the name of joint tenants namely Shyamal Das and Sailen Das. According to them Shyamal Das has executed a joint power of attorney in respect of the said room in favour of the complainant no.1 and Sailen Das has executed an unregistered Will dated 15/12/2014 bequeathing his joint tenancy in favour of the complainant no.1. On the strength of these two documents the complainants parted with possession of the tenanted room in favour of the opposite parties and entered into an agreement for Restoration-cum-Sale of the said joint tenanted room.

It is settled principle of law that tenancy is not heritable and no interest can be created by any instrument of transfer or Will. The complainants are completely silent as to whether Sailen Das is alive or not.

No cognigence can be taken in respect of the Will which has been annexed by the complainants in this case as the same has no legal value.

On scrutiny of the photo copy of the registered joint Power of Attorney executed by one Shyamal Das in favour of complainant no.1. We find that the joint tenant Shyamal Das  has not given any specific power to the complainant no.1 to part with possession of his joint tenancy in favour of any one or to enter into an agreement for development of the demised premises. The complaint application is totally silent as to whether this Shyamal Das is still alive or not. Moreover, we find the joint tenants Shyamal Das and Sailen Das are not party to any document executed by and between the complainants and the opposite parties, neither they are party to this case. There is no specific document in prove that the complainants paid any consideration amount to the opposite parties.

In view of the above, we find that the complainants had no locus standi to enter into an agreement for Restoration-cum-Sale dated 12/12/2020 with regard to the joint tenancy fully described in the 2^nd schedule of the complaint.

Having considered the elaborate discussion made above, we have no hesitation to hold that the agreement for Restoration-cum-Sale dated 12/12/2020 has no legal validity in respect of the joint tenancy mentioned in the 2^nd schedule of the complaint.  

The complainants have no locus standi to enter into an instrument under he name and style ‘Restoration-cum-Sale’ with regard to the joint tenancy room mentioned above within the opposite parties. So the complainants herein cannot be treated as complaints in terms of the Consumer Protection Act,2019.

Therefore, the complaint application having no merit and  liable to be dismissed.

Hence, it is

                                                            O R D E R E D

that the complaint case be and the same is dismissed as not maintainable in law.

Dictated by me

…....................

    President