Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 67/2019

This  case has been filed by the complainant against the OPs directing the OPs jointly and severally to pay the amount of Rs. 250/- per day on and from 28.02.2018 to 10.03.2019 amounting to Rs. 89,000/- and also for passing direction upon the OPs to hand over the shop room as per agreement dtd. 28.02.2018 and to pay compensation  of Rs. 3,00,000/- and litigation cost.

Fact of this case

Case of the complainant

This case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant  is a tenant  under the OP Nos. 2  & 3 in respect of the suit property and OP Nos. 2 & 3  entered into an agreement  dtd. 28.02.2018 wherein  the OP No. 1 (Developer) is the confirming party.  It is also the case of the complainant for the complainant surrendered the shop room  which he was possessing at the original suit  property under the OPs and the complainant has also alleged that the OPs  did not comply the agreement dtd. 28.02.2018 and also have failed to deliver possession of the shop room in question .  It has also been pointed out by the complainant side  that the said shop room  is still incomplete and it is habitable  and if for running business of the complainant which is the only source of earning of the complainant.  It has further been alleged by the complainant that the OPs have not paid the amount of Rs. 250/- per day on and from the period 28.02.2018 to 10.03.2019 and / or from the date of shifting till the date delivery of possession.  It is alleged that the complainant is a consumer  under the OPs and the disputes involved  in this case is coming under the purview of the consumer disputes which has been  highlighted  in Section 2 (1) (d)of the Consumer Protection Act,  1986.  It is further alleged  that the complainant in spite of making request to the OPs to hand over the ground floor  shop room measuring about 8’ 8”(length) X 5’ 7”(width) on making payment of monthly rent of Rs. 396.  It has also been mentioned by the complainant  that the shop room which has been surrendered by the complainant was well-decorated  inside with an iron shutter gate on it.  It is submitted that the complainant accepted the offer of the OPs  with a proposal to hand over same size area of the shop room and in the same place with additional terms & conditions  against the  consideration of surrender  of the existing tenant shop room  and accordingly the agreement  dtd. 28.02.2018 was executed .  It has further been pointed out that the OPs have only paid Rs. 5,000/- in two installments  and the balance amount is still in unpaid condition.  It is further alleged that after expiry of the agreed period for hand over  possession of the shop room the complainant approached to the OPs  with a request for hand over the shop room to OPs demanded  for further few months to complete construction work and to hand over shop  room to the complainant.  It is asserted  that the shop room has offered verbally by the OPs  in the month of January, 2019 are not possible to use as shop room due to the obstruction of concrete made column which is front portion entrance of the shop room  and as such the complainant refused to accept the shop room  unless the obstruction of the concrete made column  in the front portion is removed.  It is further alleged that the OPs had committed unfair trade practice and deficiency of service and so the complainant is entitled to get the relief  and / or claim which is prayed in the complaint petition.  

Defense Case

The OPs after receiving the notice entered appearance  and filed their W/V and denied each and every allegations of the complainant which has been adopted  in the complaint petition.

This specific case of the OPs which is revealed from the W/V in a nutshell is that the complainant is not a consumer under the OPs  and so the disputes involved  in the above noted complaint case are not filing within the purview of consumer disputes under the Consumer Protection Act, 1986.  It is submitted that as per terms & conditions  of agreement  dtd. 28.02.2018 the OPs already have delivered  possession of the vacant shop room to the complainant  and the OPs also have paid Rs. 5,000/- in two installments.  It is further pointed out that the OPs all along acted  as per terms & conditions  of the agreement dtd. 28.02.2018.  It is alleged that the complainant has failed to make out any case of deficiency of service or unfair trade practice  on the part of the OPs.  For all these reasons  the OPs have prayed before this District Commission for dismissing this complaint case with heavy cost.

Points of consideration

On  the basis of the pleadings of parties , this District Commission for the interest of proper and complete adjudication  of this complaint  case and also for arriving at just and proper decision in this case  is going to adopt the following points of consideration :-

(i)        Is this case maintainable in its present form and in the eye of law?

(ii)       Whether the complainant has cause of action for filing this case against the OPs or not?

(iii)     Is the complainant a  consumer under the OPs or not?

(iv)      Has this District Commission jurisdiction to try this case ?

 (v)      Whether the complainant is entitled to get direction upon the OPs to hand over the shop room as per terms & conditions  dtd. 28.02.2018 and to pay compensation  and litigation cost or not?

(vi)      To what other relief / reliefs is the complainant entitled to get in this case?

Evidence on record

In order to prove the case the complainant has filed evidence on affidavit  and against the said evidence on affidavit the OPs have  filed  interrogatories and against the said interrogatories the complainant side has given reply.  To disprove the case of the complainant,  the OPs have filed evidence on affidavit. Against the  said evidence on affidavit,  the complainant has filed questionnaire  and Ops also have given reply against the said questionnaire.

Argument  highlighted  by both parties

The complainant and the OPs have filed their Brief Notes on Argument . In addition to such filing of Brief Notes on Argument the complainant and OPs also have highlighted their verbal  submission / argument where the complainant  and OPs have given emphasis  on the oral and documentary evidence.

Decision with reason

The first 4 (four) points of consideration are clubbed together and taken up for discussion jointly at first as because the questions and / or issues involved in these points of consideration are interlinked and / or interconnected with one another.

For the purpose of arriving at just and proper decision in respect of the above noted four points of consideration, there is urgent necessity of making scrutiny of the material of this case record as well as there is urgent necessity of scanning the evidence on record.

After going through the material of this case record it is revealed that the complainant  was / is a tenant under the OP Nos. 2 & 3 and the complainant entered into agreement dtd. 28.02.2018 where OP No. 1 is a confirming party.  It is also revealed from the case record that the complainant signed on the agreement  dtd. 28.02.2018 after realizing the terms & conditions  of the said document and also have agreed to abide by the terms & conditions of the said agreement  and so the terms & conditions of the agreement dtd. 28.02.2018 is binding upon the complainant when the complainant was a tenant under the OPs and as per agreement dtd. 28.02.2018 the complainant would continue as a tenant under the OPs at a enhance rate the complainant cannot be designated as a consumer under the OPs.  Hardly the complainant can be treated as a tenant under the OPs.  Thus, it is crystal clear that there is no relationship of consumer and service provider in between the complainant  and OPs.  Moreover, the complainant has not paid any consideration money to the OPs for the purpose of getting the shop room in the new project which has been constructed by OP No. 1.  When there is no consideration money  and when there is no relationship of consumer  and service provider in between the complainant and OPs, this complaint case cannot be treated as maintainable under the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986.  Thus, it is crystal clear that the complainant  is not consumer  and so this complaint case is not maintainable in its present from and in the eye of law.

It is also revealed from the case record that as per terms & conditions of the agreement dtd. 28.02.2018 the OPs have delivered possession of the shop room  and the OPs also have paid Rs. 5000/-  in two installments and all these facts are available from the application which is filed by the complainant u/s 144 Cr.P.C. in M.P. Case No. 943/2018 and the said case has been filed by the complainant  against the OPs.

According to the case of the complainant side the OPs have failed to deliver possession  of the shop room  in question and the said shop room is still incomplete.  But fact remains  that in order to substantiate  this plea the complainant  has neither filed any cogent documentary evidence before this District Commission .  In this regard the evidence which is given by the complainant has also not been corroborated  by any other witness by submitting evidence on affidavit  on behalf of the complainant.  It is also important to note that the complainant in course of trial has neither prayed any Local Inspection Commission   nor has filed any Expert Commission to show that the said shop room is remaining incomplete and the said shop room is obstructed by a column which has been raised by the OPs at the time of construction of the said plea.  In the absence of cogent evidence this vital plea of the complainant cannot be accepted.

On close examination of the evidence on record this District Commission finds that the complainant has failed to make out any case of deficiency of service or unfair trade practice against the OPs.

A cumulative consideration of the above noted discussion  goes to show that this case is not maintainable  in its present form and in the eye of law, the complainant is not a consumer  under the OPs and the complainant has no cause of action for filing this case and the complainant has failed to prove his case in respect of the points of consideration Nos. 4 & 5.  As a result of which this District Commission has no other alternative but to dismiss this case on contest.

In the result, it is accordingly,

ORDERED

This Complaint Case being No. 67/2019 be and the same is dismissed on contest.  No order is passed as to cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible from the Office of District Consumer Disputes Redressal Commission.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President