Order-16.
Date-30/06/2015.
Complainant Santosh Das at the rate Santosh Kumar Das by filing this complaint submitted that he had been running a small business under the name and style NEW FASHION TAILORING SHOP in a room at 11A, Dum Dum Road, Kolkata – 700030 on rent from the op Landlord since years back and complainant and some other persons became the tenant under the present Landlord since long years back.
Landlord of the premises by a Registered Deed of Partition dated 22.03.1978 became owners and accordingly mutated their names.Subsequently the Developer-cum-Promoter i.e. op no.4 entered into an Agreement on 14th March, 1998 with the Landlords i.e. op nos. 1 to 3 for developing the premises on terms and conditions laid down in the said agreement and as per this Agreement the op Developer has the full authority to negotiate, to deal with the existing tenants.
In the said Agreement specific terms has been laid down that the tenants (present complainant and others) will be given possession to the tenants and the developer and accordingly developer op no.4 negotiated with the complainant and other shop owners that is the tenants and after through discussions mutual and contentious settlement were agreed upon by and between the complainant and other tenants.As per agreed terms and contentious settlement and agreement was executed on 03.07.2002 by the complainant and the ops and as per said agreement it was duly signed by all concerned and as per said agreement, complainant got one shop room of 98 sq. ft. carpet area on the ground floor and as per agreement developer/landlord has to give ownership right to the tenant for the allotted shop of 105 sq. ft. and as per agreement developer shall give possession to the tenant to the new construction within 5 months from the date of shifting from the existing construction.
But there was much delay in giving possession causing much harassment loss to the complainant and as per agreement the Registration cost of the allotted shop should be borne by the developer/tenant and for the purpose of ownership of the allotted shop, the tenant is not liable to pay anything and the developer shall have to provide separate space or room for shifting and alternately the developer shall pay Rs. 10,000/- as monthly compensation in lieu of providing space for business till the tenant is restored possession and the number of the shop room will be no.6 from the North and if the developer do not allot the shop within the period of 5 months from the date of shifting the developer should pay Rs. 5,000/- per month in addition.But op no.4 failed to shift the same and for which complainant suffered loss.
But ultimately the complainant was given possession of the shop room at 11A, Dum Dum Road, Kolkata – 700030 vide the letter dated 22.04.2003 issued by the Developer op no.4 and the possession was to be given as per agreement in the month of November-2002 but in reality the possession was given on 21.08.2003, meaning a delay of more than 4 months.
Further complainant assessment slip of the shop room shows the market value of the shop room to Rs. 10,78,000/- as on 05.12.2013. Complainant has been pursuing for the execution of registration of the said shop room in his favour for years together but to no avail.Though complainant called upon the op developer many times for the execution of Registration of the shop room and all the times of the op developer assured them of the same at an early date but that is net yet to be materialized.The actions and inactions on the part of the op especially the non-Registration of the shop room exposed the complainant and his family to prolong harassment and inexplicable mental agony.In the meantime Keshab Chandra Das father of the complainant died on 04.08.2014 leaving myself complainant as son and his mother (his widow).
Ultimately complainant sent a demand letter on 21.08.2013 to the ops which was duly received by them urging them for execution of the registration of the sale deed but to no effect for which complainant has filed this complaint for redressal, that is for execution and registration of the deed and to pay promised amount with interest till the final payment and other compensation.
On the other hand op nos. 1 to 3 by filing written statement submitted that this complaint is not maintainable as per C.P. Act 1986 that all the allegations as made by the complainant is fully denied and it is false and fabricated.But it is admitted that ops have entered into an Agreement for development on 14.03.1998 and accordingly the construction work of the building has been completed and those ops are nothing but the landlord of the tenants including the complainant and alleged agreement for tenancy right and is an agreement in which no consideration has been passed and is free of cost and within the C.P. Act.Moreover such type of dispute dealt with Civil Court and not under the Consumer Protection Act which is to be tried as per the Tenancy Act and moreover the said document being an unregistered document is void in the eye of law and therefore the instant applications not at all maintainable as same is time barred.
Whereas op no.4 by filing written statement submitted that there is no relationship in between the complainant and op no.4 as consumer and service provider.Op no.4 only constructed building as per the Development Agreement with the landlord.Complainant is tenant under the op nos. 1 to 3 and no consideration was passed in the agreement only for the purpose of the construction they were temporarily shifted and development work was executed.Further op no.4 is not the owner of the building and construction.As per Development Agreement the allocation of the landlord was given to the landlord and their tenants who are possessing.Further it is found that the present op no, 4 has not done any illegal act and moreover complainant has/had no scope to come before the Forum.But that has not been done for which same is not maintainable and another factor is that it is a simple agreement, not for housing construction for which this complaint should be dismissed.
Decision with reasons
On careful consideration of the complaint including the written version and also relying upon the argument advanced by the parties and also Ld. Lawyers for the ops and further on overall assessment of the Agreement dated 14.03.1998, it is found that the said Deed of Agreement was executed by and between the parties of this complaint.
From the said Agreement it is admitted fact that op nos. 1 to 3 are the joint owners of the premises No.11 and now 11A, Dum Dum Road, Kolkata – 700030.But peculiar factor is that complainant has not submitted the entire Agreement but only the page nos. 1 to 16, 17, 18 & 19.So, it is clear that it is incomplete Agreement and with purposefully complainant has removed page nos. 3 to 16.
Even then from the page no.16 it is clear that Developer/Promoter have sole authority to negotiate with the existing tenants and the settlement of the Promoter shall be binding upon themselves and owner shall not be the party of the said negotiation and with the said Agreement and vendors or other owners any right in future to resale land from the tenant in unnoted from the Developer/Promoter and vendors, owners are able to execute the Sale Deed of any one or two flats before final payment if any emergency arises and in the said agreement it is also specifically mentioned that the owners shall have vacate the said premises in the month of November,1998 and shall receive all materials to the shifted rented flats which shall be alleged by the Promoter and was handed over the vacated portion.
But complainant has admitted that he is a tenant under the landlords.Now the question is whether the tenant is a consumer under the landlords or not.It is true principal of law is that if any landlord is the owner in respect of any property and tenant is there and landlord wants to sell it on the basis of agreement to the tenant, in that case, it is nothing but an Agreement to Sale Simplicitor for which only provision of Specific Relief Act shall be applied under the C.P. Act.
Moreover in the present case complainant with the help of some unscrupulous person who has drafted the complaint, did not submit the entire Agreement and invariably this unscrupulous person directed the complainant not to file the entire Agreement.
So, apparently only relying upon the complaint of the complainant, we are convinced that they are sole tenant under the landlords who are op nos. 1 to 3.Now question is whether Developer has his any authority to execute such Agreement or to execute the Sale Deed.In this regard we have gathered that Developer has no registered Power of Attorney as per provision of Registration Act.But from one Power of Attorney dated 28.03.2015 it is found that Brotindra Narayan Roy and Bitindra Narayan Roy authorized Barindra Narayan Roy as their Power of Attorney holder for conducting the cases, but except this, no Power of Attorney is filed wherefrom it would be found that Developer has his legal authority to execute any Agreement on behalf of the owners and or to execute and register Sale Deed.
But anyhow the incomplete Agreement is filed by the complainant wherefrom it is found that the owners also signed in the said Agreement.They are Brotindra Narayan Roy, Bitindra Narayan Roy and Barindra Narayan Roy on 14.03.1998.Further fact is that in Page 16, para- C, it is specifically mentioned that vendors or owners however shall have no right in future to realise rent from any tenant, if inducted by the Developer/Promoter.If we consider those lines, then we are confirmed that Developer/Promoter never inducted any tenant in the allocated portion of the Developer/Promoter.But fact remains after construction of the premises as per Development Agreement in between the land owner and Promoter, Developer allocated the land owners allotment including its tenanted portion and tenants were replaced at the tenanted room as tenant under the landlord.
So, as per Clause-C of Page 16, (incomplete agreement) it is clear right of landowners to realise rent when Developer did not induct them as tenant in the allocated portion of Developer.But complainant has admitted that they are tenant of the landlords.Then landlords are the owner in respect of the room as it is of their allocation and complainant is tenant under them.
For the sake of the argument if it is accepted that landlord intended to sale the same to the complainant.But there is no such averment that landlord shall have to sell the shop to them.But the clause is of such a nature “Vendors/owners are agreeable to execute the Sale Deed any one or two flats before filing payment in case if any emergency arises”.As because the language is a future aspect and it is the choice of the landlord.Then we are convinced to hold that by this Agreement, practically op never intended to sell the shop room to the present complainant.
Moreover as per C.P. Act, it is not come under the purview of Housing Construction, because landlord constructed the building with the help of the Developer as per Development Agreement and landlord got possession as per application including tenanted portion and as per Agreement no agreement to sale in between the complainant and landlords is produced by the complainant.It is clear that after construction of the same, owners’ allocation including tenant’s portion were allocated to the landlord and tenants were replaced to the said house.
Then it is clear that the tenant cannot claim any right as a consumer under the landlord or under the Developer and under the Developer, complainant is not a tenant.Developer never received any money or consideration for any sale from the complainant and this Agreement was executed at a point of time when landlord including their tenants were to be shifted for the purpose of demolishing the old structure.No doubt after construction of the structure, the owners’ allocation along with tenanted portion were allocated to the tenant’s landlord and their tenant has been replaced in their respective shop room as tenant under the landlord.
So, it is clear that Agreement is not at all an Agreement to Sale of flat or sale of shop room and it is the wish of the landlord whether they shall have to sell it or not.But it is specifically mentioned that in case of any emergency arises, landlord may execute the Sale Deed in respect of any one or two flats before final payment.This clause simply proves that this Agreement was not an Agreement for Sale of flat, shop room by the owner or the Promoter.
Fact remains that this complaint is mis-conceived one, the tenant cannot be a consumer under landlord, and even Agreement to Sale is there.But in the present case, there is no such clause that landlords or Promoter intended to sell it, because no consideration was passed, only there is relationship in between the landlord and complainant as landlord and tenant and complainant shall have to face consequences if he does not pay any rent.But no doubt this complainant is not a consumer under the ops either under op’s landlord or under Promoter.
Another factor is that there is no power of op developer i.e. Registered Power of Attorney to execute the Deed or anything on behalf of the landlords.Because as per provision of Section 31 to 34 of Indian Registration Act, in case of a person other than owners or landlord any document is executed on behalf of the owner and landlord by any other persons, the owner and landlord shall have to execute the Registered Power of Attorney in favour of the said authorized person and if it is not registered, no deed can be executed by the 3rd party or no Sale Deed can be executed by the 3rd party, (Promoter/Developer) and that is the position of the law and in the present case op no.4 has no registered Power of Attorney granted by the op nos. 1 to 3 and in fact op no.4 is not landlord or owner of the premises.So, op no.4 has no legal right to execute any Sale Deed or to execute any Agreement to sale on behalf of the landlords.
Further fact is that in this way many tenants are trying to get decree against the landlord and from some other Forum they managed to get a decree.But from this Forum they are not getting and it is another fact that group of tenants, tried to get a decree by mis-leading the Forum.
In the light of the above observation, we are convinced to hold that this complaint is not maintainable in the eye of law because the entire Agreement is incomplete in nature, does not prove that there was any contract or Agreement to Sale in between the parties on the basis of the alleged Agreement to Sale.On the contrary it is proved if owner wants to sell it, then complainant shall have to offer their bid and on payment complainant may get it.But this Forum cannot direct the landlord to execute the Sale Deed.
Another fact is that this Agreement was executed on 14.03.1998, admittedly possession was delivered by the Promoter on 22.04.2013 and in the meantime tenants were placed by the Promoter by giving letter.So, against Promoter or Developer, complainant cannot get any relief because the Developer paid rent when tenant and landlords were shifted to some other rented rooms.Complainant has failed to show that at any point of time complainant paid rent during his stay in some other rented room.But everything is paid by the Promoter.So, the entire complaint is baseless, false and fabricated.
Another factor is that possession was delivered on 22.04.2003 vide letter dated 22.04.2003 and thereafter complainant ought to have come before any Court of law for implementation of the alleged Agreement as per Specific Relief Act, not under C.P. Act.Because tenant cannot claim his tenanted portion under the purview of Housing Construction.But as per National Commission’s observation in a developed construction, tenants only right is to be placed as a tenant under the landlord and that is the position and when already the complainant had been put to possession on 22.04.2003, so the present complaint is completely barred by limitation for filing it after more than 10 to 12 years.
Practically in the Civil Court if complainant files any case under Specific Relief Act u/s 20/22, in that case the suit shall be dismissed as time barred and for which by sending one single letter by the complainant on 21.08.2013 he has tried to convince that complainant again and again hammered for the execution of Sale Deed.But this letter is nothing but a paper created by the said unscrupulous fellow for showing their cause of action.Probably about cause of action consumer tout is not aware.Whatever it may be in the eye of law, this complaint is time barred, not maintainable, complainant is not a consumer under the op, and this Agreement is not an agreement for sale of flat, shop room as per definition of Housing Construction.
Last but not least we want to mention that complainant has admitted that the shop room is a business place that means for commercial purpose.Then for using of any commercial purpose, if any shop room is required that shop room cannot be treated as for dwelling house and when it is for commercial purpose, then the present complaint is also not maintainable.
Moreover complainant is not a consumer under the landlord op nos. 1, 2, 3 and also op no.4 and in fact there is no contract in between the complainant and the Developer for selling any flat or shop room for which this complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest without any cost against the ops.
