Order-29.
Date-17/02/2016.
In this complaint Complainant Debjani Tagore at the rate of Smritikana Tagore by filing this complaint has submitted thatcomplainantis running a business under the name and style of M/s. RashbehariUdyog and ops Satya Narayan Poddar (since deceased) Satya Narayan Agarwal carried a business on construction under the name and style M/s. RashbehariUdyog and said Satya Narayan Poddar died leaving behind his wife Gita Rani Poddar (op no.1), three sons namely Rajendra Kumar Poddar (op no.2), Pradip Kumar Poddar (op no.3), Ashok Kumar Poddar (op no.4) and one daughter ManjySurekaKha (op no.5) as his legal heirs and successors left property, debts, liability and responsibility on the death of Satya Narayan Poddar.
Truth is that Satya Narayan Agarwal op no.6 and said Satya Narayan Poddar (since deceased) was executed an Agreement in between the complainant and it was agreed that immediately after completion of the said proposed construction work, he will execute a Deed of Sale in favour of complainant who is the sole proprietor of M/s. Auto Enterprise in respect of one vacant space measuring 900 sq. ft. on the ground floor, on the back portion of Premises No.33, Rash Behari Avenue, Kolkata – 700026 in favour of the complainant.
But the said building is completed in accordance with a sanction building plan of the said G+5 storied building consisting of several flats, garages and other spaces at Premises No.33Rash Behari Avenue, Kolkata – 700026 in favour of the complainant. Complainant has been observing and inspecting his said space regularly and handed over the said space of 900 sq. ft. more or less on the ground floor to complainant as per terms and conditions of the said agreement dated 21.02.2002 and complainant has been running his business under the said name and style of M/s. Auto Enterprise.
Complainant also requested the op to execute the proper deed of conveyance in favour of complainant but ops have neglected and avoided to execute the same to fulfill their ill motive.
In the above aforesaid fact and circumstances, complainant was compelled to serve series of Notice dated 23.04.2010 to ops through his Ld. Advocate calling upon each and every one of them to execute and register the said Deed of Conveyance in favour of complainant but inspite of such notice by the Ld. Advocate of complainant, ops did not take any step to execute any Deed of Conveyance in favour of complainant, though complainant already fulfilled all the terms and conditions as per agreement dated 21.02.2002. But ops are denying their liabilities and for which complainant has been suffering mental pain and agony and also suffering from financial loss when in the meantime cost of registration has been increased at high rate for which complainant shall have to pay huge money at the time of registration.
In the above circumstances, complainant prayed for redressal.
On the other hand op no.2 by filing written statement submitted that the cause of action arose on 26.05.2014 and the suit is situated in the territorial jurisdiction of this Forum and suit property is admittedly within Kalighat Police Station which is not within the territorial jurisdiction of this Forum and as such it is necessary that the instant case is not maintainable before this Forum and for which op no.2 has prayed for dismissal of this case.
Op no.2 has further submitted that the complainant was a tenant and at the time of construction of the building, complainant was shifted and thereafter replaced to its previous tenanted portion on the ground floor of the same premises.
It is specifically mentioned that no Sale Agreement was executed in between the parties and no sale transaction was made in between the complainant and the landlords and said transaction is in between the both parties as an Agreement and also no rent was paid by the complainant to the said landlords since 31.07.1986. So, there was no question for execution of a deed of sale in favour of complainant and in fact complainant is running the business as desired landlord op and never complainant asked the landlord ops for execution and registration of the Sale Deed.
Further it is submitted that complainant is running a business in front portion of the premises no. 33, RashBehari Avenue, Kolkata-26 and at best complainant’s wish shifted back to the back portion of the said premises and may be considered it before this he shall have to back front portion of the said premises and in fact there is no contract in between the landlord and complainant for which this complaint is not tenable against the landlord/ the owner of the said premises.
Op no.6 by filing written statement submitted that complainant has filed this case falsely, complainant did not pay any consideration to the op and complainant under no stretch of imagination can be stated to be consumer within the amended provisions of C.P. Act and there is no cause of action for filing this complaint.
Fact remains that by an Indenture of Sale dated 31.07.1986, the owners namely Tagores as Vendors, sold, transferred and conveyed the entire premises No. 33, Rashbehari Avenue, Kolkata – 26 to the op no.2 and Satya Narayan Poddar since deceased at the time of purchase of the said property, the Tagores informed the op no.6 and said Satya Narayan Poddar that they entered into an agreement dated 23.05.1986 with their tenant M/s. Auto Enterprises represented by it’s the then proprietor BarindraNath Tagore, who was a family member of the Tagores under which they agreed to allot a space measuring about 900 sq. ft. running from east to west free of cost and after constructionof the new building at the said premises and after purchasing the said property, op no.6 and Satya Narayan Poddar on behalf of the said firm, applied before the Municipal authorities for sanction of a new building after demolishing the existing structure thereon and the Municipal authorities on 29.07.1987 sanctioned a G+5 storied building on the said property.
There were existing tenants as also unauthorized occupants in portions of the existing building and in the circumstances, it was proposed that the first phase of the building would be completed and in terms of the settlement arrived with then existing occupiers, they would be shifted to the relocated newly constructed building and thereafter the construction in Phase II would commence.
Construction of the new building commenced in the Phase-I and the same was completed in or about 1992. 10 numbers of residential flats were constructed under Phase-I in the said property and op no.6 and Satya Narayan Poddar for and on behalf of the said firm and as owners sold, transferred and conveyed all the residential flats to the respective purchasers and respective Indenture of Sale was executed and registered with the concerned Registered of Assurance.
At the time of raising construction, the complainant is in relation with said BarindraNath Tagore started creating obstruction and filed purported proceedings demanding salvage value of the materials, fitting and fixtures of the old building. As per earlier Agreement dated 23.05.1986, complainant entered into a supplementary agreement with op no.6 and said Satya Narayan Poddar on 21.02.2002 and under the said Agreement the party of the Second Part agreed to handover a portion measuring about 900 sq. ft. lying and situate at the back portion running from east to west of Premises No.33, Rash BehariAveune, Kolkata which the party of the First Part was in occupation after completion of the entire building and by the time the construction was to be carried on, the party of the First Part was given a temporary arrangement at the front portion of the building which she was required to handover upon delivery of the agreed portion.
Subsequently disputes and differences arose between the partners of the said firm and the occupiers of the old building in the said property and inspite of best efforts the said firm could not resolve the disputes amicably or otherwise and in the circumstances there was a delay of eight years in completing the construction.
Under compulsion of circumstances, the said firm was constrained to appoint one Vishnu Kumar Bhagat, as a contractor for the purpose of completing the construction of the building in Phase II on the understanding that he would take all steps to negotiate with the occupiers and bear all costs, charges and expenses required for completion of such construction under Phase II in the said property. An agreement was entered into between the existing partners of the said firm and the contractor, wherein the partners of the said firm agreed to appoint him to complete the construction of the Phase II building in the said property on the terms and conditions contained therein.
After completion of the construction, Satya Narayan Poddar and op no.6 on various occasions called upon the complainant to vacate the temporary accommodation at the front portion and to get possession of the agreed portion at back side. But complainant instead of coming forward to handover the temporary accommodation given to her as unlawfully occupied one of the common passage in the said premises to run her business.
Fact remains that Satya Narayan Poddar died inteste on 25.12.2003 leaving behind the op nos. 1 to 5 as his surviving legal heirs and representatives and the partnership firm had been reconstituted from time to time and last of such reconstitution was made after the death of Satya Narayan Poddar by a Deed of Reconstitution dated 14.02.2004.
On the other hand after the death of Satya Narayan Poddar, disputes and differences arose between the legal representatives of Satya Narayan Poddar, op no.4 was never in good terms with Satya Narayan Poddar and any steps taken by Satya Narayan Poddar in respect of the said property would inevitably be objected to by the op no.4 and the op no.6 made several attempts and left no stone unturned and op no.4 was adamant and disputes in between the family members of Satya Narayan Poddar remained unresolved.
For the aforesaid it would be evident that the answering ops are willing to get the registration done in favour of complainant to the allocated portion. It is specifically mentioned that complainant tactfully has got front portion of building measuring about 600 sq. ft. extending from north to sought and has also encroached upon one of the common passages measuring amount 520 sq. ft. and by filing this complaint, complainant is trying to create an impression that she has been allocated the space which she is presently occupying which is incorrect and false and by misleading this Forum, complainant is seeking for execution of a deed in respect of the space which has not been allocated to her.
Further it is submitted that the subject property in respect of which the complainant has sought for direction for execution of a Deed of Conveyance which is situated at 33, Rash Behari Avenue, P.S.-Kalighat, Kolkata – 26 which is outside the jurisdiction of this Forum and no part of cause of action has arisen within the jurisdiction of this Forum and in fact complainant has purportedly and intentionally filed this case for grabbing more money for which this complaint should be dismissed.
Decision with reasons
After careful study of the complaint and written versions and also the materials on record and further the argument, it is clear that complainant was a tenant in respect of the premises under the old landlords and subsequently ops purchased the entire property and thereafter ops intended to construct G+5 building as per sanctioned plan. But as because complainant was a tenant in the said premises for her shifting and an Agreement was executed in between the complainant Debjani Tagore the owner of M/s. Auto Enterprise with GitendraNath Tagore & Others and M/s. Auto Enterprises and this agreement shall be treated as Supplementary Agreement against agreement dated 23.05.1986. But complainant with some ill motive has not filed that agreement. Whatever it may be from the said agreement, it is clear that after completion of the construction of the entire building at the back portion of 33, Rash Behari Avenue, Kolkata, possession of the property shall be delivered possession with all facilities like water supply, bath room etc. simultaneously by executing registration of the Deed in the name of the First Party at their own cost. But the complainant shall vacate the front portion space and to deliver it to the op and this is the Supplementary Agreement dated 21.02.2002.
But after considering the agreement, it is found that there is no other terms and conditions and there is no such consideration, complainant never hired any service from the ops. It is an agreement in between the tenant and the owner the present ops who purchased the same and admitted position is that by Indenture of Sale dated 31.07.1986, the owners, namely the Tagores, as Vendors, sold, transferred and conveyed the entirety of the premises that is case premises to Satya Narayan Agarwal and Satya Narayan Poddar (since deceased). So on and from 31.07.1986 S.N. Poddar and S.N. Agarwal are absolute owner of the premises and not even complainant became a tenant on the basis of their purchase made by Indenture of Conveyance made on 21.07.1986.
It is clear that Gita Poddar, RajendraPoddar, Ashok Kumar Poddar, Pradip Kumar Poddar, Manju Sureka and Satya Narayan Agarwal became the owner of the premises and each sold away to Gita Poddar. So, on and from 21.07.1986 complainant is a tenant under the ops and for which the agreement was executed in between them.
Considering the above materials on record, we are convinced to hold till now that complainant is a tenant under the ops and fact remains that as per agreement, no question of consideration was passed. But as per agreement, it is found that the Sale Deed shall be executed by the op in favour of the complainant in respect of the area as mentioned in the said agreement.
But considering the materials it is found that complainant has been possessing front portion as tenant under op and he has not been paying any rent since 1986. So, op is entitled to get rent from tenant and op has his right to claim such rent but in fact no rent was paid as yet and said agreementis not implemented.
So, in the eye of law this agreement is not an agreement in between the consumer and the seller. But it is a conditional agreement in between the tenant (complainant) and the landlord (ops) and as per agreement, complainant cannot claim any right as consumer under the op because already she is tenant and she is defaulter tenant since 1986 and tenant has no legal authority to occupy the area within the area which is allotted by the landlord as tenant for long period non payment of rent.
Further it is found from the entire document that this complainant illegally by applying muscle force has been occupying a portion which is not a part of tenancy but she must have to shift to the agreed portion as tenant and op is willing to shift her but complainant must vacate this present possession to op and op shall allot the tenanted portion on the back portion.
But truth is that complainant is occupying some portion of the area but complainant is a defaulter tenant since 1986 and she must be removed and at the same time this agreement is already barred by limitation because an agreement was executed on 21.02.2002 and complainant has not been taking the possession from the ops by possessing another portion of the ops room on the ground floor illegally, unauthorizedly and for which she should be removed by proper Court of Law etc. and it is the duty of the complainant to vacate that portion as per law to establish her legal right as a tenant. But tenant has become a muscleman and harassing the landlord and such a tenant cannot be entertained by any Court of Law and such a tenant cannot get any relief from the Court of Law.
In fact those chapters are decided by this Forum in view of the fact that complainant is not a consumer under the op and such an agreement is not against any consideration and for which this complaint is not only a hoax but also by adopting some unfair path this complaint is filed before this Forum but as per Law the tenant cannot be a consumer under the Landlord (ops).
In the present case the tenant is a defaulter since 1986 and truth is that complainant with some ill motive and being inspired by some unscrupulous persons filed this complainant and harassed the ops and also wasted the time of this Forum for which it is found that the entire complaint is false, fabricated and at the same time purposefully this false case is filed knowing fully well that she is a tenant under landlord but not a consumer.
In the result, this complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest with penal cost against the ops.
Complainant is hereby directed to deposit the penal cost of Rs. 10,000/- to this Forum within one month from the date of this order failing which 9 percent interest per annum shall be assessed over the sametill full satisfaction or payment of the said amount to this Forum and that shall be calculated and if it is found that complainant is reluctant to comply this order, in that case complainant shall be prosecuted u/s. 25 read with Section 27 of C.P. Act, 1986 for which further penalty and fine shall be imposed upon complainant.
