Today is fixed for passing final order in respect of the application regarding the maintainability of the complaint as filed by the OP on 10-03-2014 and against that complainant has filed objection challenging the legality of such application filed by the OP and that was filed by the complainant on 07-04-2014.  Thereafter the matter was heard and today final order is being passed after considering the entire materials on record.  After considering the complaint including the agreement to sale dated 28-02-2006 it is found that a memorandum of agreement is executed in between the complainant and the OP and as per agreement it is found that complainant is still a tenant under the OP and there was a memorandum of agreement in between the complainant and OP i.e. the tenant and landlord that landlord shall have to sell out the said shoproom including the some other portion added with the shoproom to the complainant and it is admitted position that Rs.3 lakhs had already been paid and complainant already in possession of the said shoproom and as per agreement vendor agreed to complete the purchase within one month from the date of memorandum of agreement dated 28-02-2006 and purchaser also agreed to complete the purchase within one month from that date and as per agreement the complainant by purchase shall have no claim or right any kind whatsoever in respect of the said building and other places and portion except the shoproom area which shall remain the property of the vendor and as per said agreement complainant is not entitled to transfer the shoproom in any manner whatsoever without written consent of the vendor.

  So, considering the spirit of the agreement to sale it is found that it is a memorandum of agreement in between the landlord and the tenant in respect of sale of tenanted shoproom by the landlord (OP) to the tenant i.e. complainant. 

  Admitted position is that it was executed on 28-02-2006 and as per agreement it was specifically agreed by the complainant that complainant shall have to complete the purchase within one month from the date of execution of the memorandum of agreement dated 28-02-2006 and at the same time vendor already agreed to purchase within one month from the date of execution of the memorandum of agreement.  So, apparently from the spirit  of the agreement it is clear that it was out and out a sale with certain condition and it was made on 28-02-2006 and as per agreement it was the duty of the complainant purchaser tenant to complainant the deed of sale within one month from 28-02-2006 but that has not been done by the complainant and from the complaint it is found that complaint was filed on 03-01-2014 but memorandum of agreement was executed on 28-02-2006 but actual cause of action arose to file such a complaint on 28-03-2006 but the complaint ought to have been filed on 28-03-2008 within two years from the date of arising of cause of action.  So, apparently this complaint is not maintainable as same is completely time barred as per provision of Section 24A of the C.P. Act.  Another factor is that this memorandum of agreement on the basis of which complainant has prayed for redressal as per C.P. Act is nothing but a memorandum of agreement in between the landlord and the tenant for selling the tenanted shoproom by the landlord to the tenant(complainant) and it is a sale simplicitor there is no question of construction of future liabilities or any kind of service.  So, the present construction does not come under the purview of housing construction as embodied in the C.P. Act and at the same time it is also proved that by this agreement complainant cannot claim as consumer of the landlord and as because it is a sale simplicitor landlord cannot be service provider in respect of the sale simplicitor of shoproom in which complainant is still a tenant and complainant’s tenancy right shall go by after execution of the sale deed not before that on the basis of memorandum of agreement complainant cannot claim any right as owner so, in the light of the above observation and considering the materials including the objection as filed by the OP it is clear that complainant is not a consumer under the OP as their relationship in between complainant and OP is tenant and landlord only by the memorandum of agreement that complainant shall prepare for execution of the said memorandum of agreement dated 28-02-2006 but that has not been done by the complainant because already consideration has been passed and that had already been received prior to present memorandum of agreement dated 28-02-2006.

  In view of the above findings we are convinced to hold that the present complainant is not entitled to get any relief as he is not a consumer and the present memorandum of agreement or alleged sale is a sale simplicitor and present premises does not come under the purview of the building construction and for which present complaint is not maintainable and at the same time the cause of action actually arose on 28-03-2006 and the present complaint ought to have been filed on 28-03-2008 but in lieu of that the present complaint was filed on 03-01-2004 that is completely barred by limitation as per provision of Section 24 of the C.P. Act.  In that premises the complaint is not maintainable in the eye of law.

Hence,

Ordered

That the objection filed by the OP on 10-03-2014 challenging the maintainability of the complainant is hereby allowed on contest. 

  That the present complaint is barred by limitation and the present complaint is not maintainable because complainant is not a consumer under the OP as their relationship till now is tenant and landlord and memorandum of agreement dated 28-02-2006 is nothing but an agreement to sale simplicitor.