FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The case of the complainant in a nutshell; is that he is earning his livelihood through running a Jewellary Business under the name and style of Lalbabu Jewellers at KMC Premises No. 49/5/H/208, Karl Marx Sarani, PS-South Port, Kolkata-700023. OP-2 is a thika tenant/owner of KMC Premises No. 49/5/H/208, Karl Marx Sarani, PS-South Port, Kolkata-700023. Complainant was a monthly tenant of a shop room under OP-2 against payment of rent of Rs. 200/- per month. During the period of tenancy, OP-2 appointed OP-1 to develop her property. Complainant entered into Memorandum of Undertaking dated 13.09.2018 with the OPs regarding allotment of a shop room measuring about 66 sq. ft. in the proposed building. In terms of MOU, OPs agreed to hand over vacant possession of a tenanted shop room to facilitate the construction of proposed building. OPs have promised to provide the said tenanted shop room along with full interior and exterior decorations with a common bath and privy facilities including water and electric connection within a period of 5/6 months from the date of execution of MOU. OP-1 demolished the existing building and completed the construction of G+4 building thereon. The new tenanted showroom is in habitable condition as the OP-1 did not complete the interior and exterior decoration of subject shop room as per MOU. OPs handed over physical possession of the tenanted shop room to him and from then the complainant started to pay monthly rent regularly to the OP-2. Despite several request, the OPs did not complete the interior and exterior decoration of the subject shop room. The OPs bypassed their liabilities and have been avoiding their legal obligations causing harassment of the complainant. Total cost of full interior and exterior decoration shall be incurred by the OP-1 and complainant to the ratio of 60 % and 40 % respectively. Complainant is always ready and willing to spent his part of expenditure to extend 40 % but the OP-1 avoid his liability without any cogent rhyme and reasons. Having no other alternative, the complainant vide legal notices dated 12.02.2020 and 04.03.2020, requested the OPs to complete the interior and exterior decoration of the subject shop room in terms of the MOU but the OP-1 vide letter dated 25.02.2020 denied his liabilities.
Further case of the complainant is that he appointed M/S Sanjay Enterprise for estimated cost of the interior and exterior decoration of the subject shop room. M/s Sanjay Enterprise submitted an estimate regarding cost of interior and exterior decoration of the subject shop room. Neither the OPs settle the dispute nor complete the interior and exterior decoration of the shop room in habitable condition. OPs with malafide intention and deliberately adopting unfair trade practice and also deprived the complainant from his lawful right in terms of the MOU dated 13.09.2018. Hence, the complainant has filed the instant consumer complaint for seeking reliefs as per prayer.
The complaint is not resisted by the OPs and they did not come forward to file any WV within the specified period from the date of receiving notice of complaint. Thus, the consumer case has proceeded ex parte against the OPs vide proceeding dated 29.11.2021.
Complainant Lalbabu Gupta @ Prasad filed his E/chief in the form of affidavit and he also filed relevant documents i.e trade license issued by KMC, General Power of Attorney dated 14.01.2021, MOU dated 13.09.2018, rent receipts and legal notices dated 19.03.2020 and 09.07.2020.
We have heard argument on merit. Perused the evidence of the complainant coupled with materials on record.
Upon perusal of the consumer complaint coupled with evidence of the complainant and MOU dated 13.09.2018, we find that the complainant is a monthly tenant under the OP-2 at a rental of Rs. 200/- and the carpet area of the shop room is 66 sq. ft. Trade license of shop room is in the name of Sri Lalbabu Jewellers. By virtue of said the Memorandum of Understanding dated 13.09.2018, the complainant handed over his tenanted portion of shop room to the OPs for construction of a multi storied building thereon. Both the OPs agreed to handover the subject shop room in habitable condition with interior and external decoration. The total cost of said decoration shall be incurred at the ratio of 60 % and 40 % respectively by the OP-1 and the complainant . Complainant deposed that the OPs physically handover possession of the subject shop room without interior and exterior decoration. The OP-1 are fully aware that he is liable to incur 60 % of the decoration cost but he failed to do so. There were exchange of legal notices between the parties but no fruitful result is forthcoming.
Admittedly the OPs have failed to controvert the allegations of the complainant by filing WV. Even the OPs did not file their E/chief. It is settled principle of law that the complainant must prove his case on his own leg not the weakness of the OPs.
Section 2 (7) of the CP Act, 2019 provides the definition of consumer which reads as under:-
(7) “Consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the persons who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such service for any commercial purpose.
Complainant is a tenant under the OP-2 and OP-1 is a developer. Physical possession of the subject shop room measuring about 66 sq. ft. (carpet area) in the newly constructed building has already been given to the complainant. Neither the complainant paid any consideration amount to the OP-1 nor hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised.
Clause 7 of the MOU dated 13.09.2018 reads as under:-
7. That the newly constructed accommodation for the 2nd party/Tenant in the proposed new building shall be completed with all interior and exterior decoration branded items as aforesaid described and the total cost for the said decoration shall be incurred by a ratio of 60 % by the 3rd Party/Developer and 40 % by the 2nd Party /tenant. Admittedly, the complainant did not paid any amount to the 3rd party/developer for decoration. Complainant is a tenant under the OP-2/owner. The alleged dispute cannot amenable in this commission. The dispute is purely civil in nature.
In view of the above discussion, we are of the considered opinion that the instant Consumer Complaint has no merit and is dismissed with no order as to cost. Complainant may agitate his grievance before the competent court of law, if so desired.
