FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

            The complainant filed the petition of complaint U/s 12 read with section 13 of the Consumer Protection Act, 1986 as amended up to date. The fact of the case in brief is that the complainant was a tenant in respect of one shop room along with one bath cum privy and one kitchen in the premises No.  59, Indra Biswas Road, PS-Tala, Kolkata-700037 under KMC ward No.  05 under once Smt. Tapti Ghosh the then owner.

It is further stated that said Smt. Tapati Ghosh sold her one third undivided share in respect of the premises No.  59, Indra Biswas Road, PS-Tala, Kolkata-700037  to her daughter in law Hena Ghosh by dint of a registered deed of sale dated 12.07.2014 duly in the office of Sealdah and recorded in book No.  1, CD Volume No.  6, page 1436 executed and registered to 1452, deed No. 02312 in the year 2014. The present complainant then became the tenant under Smt. Hena Ghosh who was transferring owner of the said property.

It is further stated that the said land lord approached the complainant by stating that they intended to develop the property and to that effect they have entered into an agreement for development with a developer company for constructing a multi storied building. The OP asked and requested the complainant to vacant the tenanted portion with an undertaking that he would get a flat free of cost from the owners in the same place.

The complainant agreed and gave his consent to the OP on the assurance for getting a flat  free of cost  in the proposed  newly constructed  building and entered into the agreement to that effect with the OP Smt. Hena Ghosh on  28.11.2014 which was prepared on a non judicial stamp paper valued of Rs.  10/-. As per agreement for sale, the OP agreed to provide the complainant one flat measuring about 210 sq. ft. built up area comprised one bath cum privy, one kitchen and one bed room and it was also agreed therein that the possession of the flat would be handed over within  24  months after obtaining the sanctioned plan. The building plan was sanctioned on 01.06.2017.

            It is alleged by the complainant that even after completion of the proposed  building, the OP did not handover the possession of the flat in question to the complainant  even on repeated request from the end of the complainant which caused harassment mental pain and agony and huge financial loss to the complainant. It is further allegation of the complainant that such conduct of the OP should be considered as deficiency in service and negligence.

            Hence, the case is filed by the complainant with a prayer to give direction to the OP either to handover the flat to the complainant by executing the deed of registration in respect of the said flat in question or to pay a sum of Rs.  15,00,000/- (Rs. Fifteen lacs) only  to the complainant towards the price of the said flat. The complainant also prayed for compensation of Rs.  1,00,000/- only for harassment mental pain and agony along with litigation cost of Rs. 15,000/- only.

            The OP has contested the case by filing a WV denying all the material allegations levelled against her in the petition of the complaint. It is the case of the OP that the complainant has filed the petition of complaint with malafide intention without having any cause of action. It is also the OP’s case that this forum is not the appropriate forum for the complainant to get the relief as prayed for.

It is further case of the OP that the complainant was a purported tenant under the original owner Mrs. Tapati Ghosh. Subsequently, said Tapati Ghosh sold her undemarketed share in favour of the OP Hena Ghosh by a deed of conveyance dated July, 2014 so at present the complainant became the tenant under the OP Hena Ghosh since, July  2014 and without  paying any recent .  The Complainant has been enjoying premises in question illegally. It is further stated by the OP in the WV that the OP had no where mentioned nor given any assurance by any means to the complainant for accommodating him in the proposed developed building rather the complainant has fabricated the facts and made false allegations against the OP for the purpose of this case.

The OP has denied the agreement dated  11.02.2014 and stated that the said agreement had never signed and executed by the OP because the OP has no knowledge about the existence of the said agreement dated  28.11.2014 and the agreement in question is not verified one.

It is also the case of the OP that the petition of complaint as filed by the complainant is barred by limitation and the complainant did not file any prayer for condonation of delay. So, the case is liable to be dismissed rather it is the allegation of the OP that being a senior citizen she had to suffer mental agony after receipt of the notice and harassed by the complainant.  Thus, the petition of complaint is liable to be dismissed with cost.

In view of above facts and circumstances, the points of consideration are as follows:-

1. Is the case maintainable in its present form and law?

2. Is the case barred by limitation?

3. Is the complainant a consumer?

4. Is there any deficiency in service on the part of the OP?

5. Is the complainant entitled to get relief as prayed for?

6. To what other relief or reliefs is the complainant entitled to get?

Decision with Reasons

All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.

On a close scrutiny of the materials on record also considering the position of law it appears that this court has ample jurisdiction both pecuniary and territorial to entertain this matter and case has been filed by the complainant within the period of limitation so the case is maintainable in eye of law.

Let us see whether the complainant is a consumer or not within the ambit of CP Act on careful perusal of the petition of complaint it appears that admittedly the complainant was a tenant under the erstwhile landlord Late Padma Rani Ghosh of premises in question and subsequently, the said landlord died intested on  24.01.1993 leaving behind her three children namely Mrs.  Hena Ghosh, Mrs. Jharna Ghosh and Mr. Saila Ghosh to become undivided equal share holders cum owners of the Premises No. 59, indra Biswas Road, PS-Tala, Kolkata-700037 under KMC ward No. 5 with 1/3 share each ultimately, Mrs. Tapati Ghosh one of the share holders executed a deed of conveyance dated 12.07.2014 in favour of Smt. Hena Ghosh in the year  2014,  by dint of that deed Smt. Hena Ghosh, the present OP became 2/3 share holder of the premises in question including tenancy in question  of the complainant.

It is also admitted fact by the complainant that the OP Smt. Hena Ghosh and others are jointly intended to develop the proposed plot of land. The complainant to grant his no objection for the proposed construction thereafter the complainant agreed to their proposal and enter into an agreement with the OP members on 29.11.2014  in respect of tenancy wherein the OP agreed to deliver and/or peaceful and vacant position of build up area measuring about  210 sq. ft. comprised with one bath cum privy, kitchen and one bed room and first floor of the building to be constructed at premises No. 59, Indra Biswas Road, PS-Tala, KMC ward No.  5, Kolkata-700037 within 24 months from the date of starting construction on getting sanctioned plan.

It is alleged by the complainant that till date of filing of the case the OP did not handover the flat in question which is amounting to deficiency in service on her part and which is the cause of action to file the case.  

So, from the admission as well as fact stated by the complainant in his petition of complaint it is palpably clear that the complainant is not a consumer within the meaning of 2 (d) of CP Act, 1986.

The complainant claimed himself as tenant in the premises in question under the predecessor -in-interest of the OP Smt. Hena Ghosh and subsequently, under the OP Smt. Hena Ghosh but no such document has come from the end of the complainant. Moreover, the OP flatly denied existence of the agreement dated  28.11.2014 and also denied her signature thereon. In that case the complainant did not take any proper step to prove that the signature of Smt. Hena Ghosh in the agreement dated 28.11.2014 is the actual signature of the OP which is denied by the Smt. Hena Ghosh.

During the course of argument of this case Ld. Advocate for the OP submitted before  this commission that if the complainant claimed himself as tenant in respect  of  premises in question  than remedy if any is lying in the proper forum but not before this consumer forum/commission. It is not the complainant’s  case that he paid consideration money in respect of flat in question or he partly paid or partly promised to pay it. The complainant also failed to prove his tenancy in question by submitting even scrap of paper.  Under such circumstances, this commission is of view that the complainant is miserably failure to prove his status in respect of the flat in question or premises in question as mentioned in the petition of complaint and also failed to prove that he is a consumer and the OP is a service provider by any means.

 When it is established from the discussion made above that the complainant has no locus-standi to file this case in respect of the flat in question as well as the premises in question against the OP member than the question of deficiency in service on the part of the OP does not arise at all.

Under such facts and circumstances of the case and also on the basis of discussion made above, this forum/commission has no hesitation to hold the view that the complainant is no way a consumer within the ambit of CP Act, 1986 as provided U/s 2 (d). Thus, he is not entitled to get any relief in this case as prayed for.

In sum, the complainant fails to prove his case beyond all the reasonable doubt and he is not entitled to get relief as prayed for.

The case is properly stamped.

All the points are thus considered and decided accordingly.

Hence,

Ordered

That the case be and the same is dismissed on contest without any cost against the OP.

Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.