13-05-2015 - The reasons for delay in disposal of this appeal can be seen from the order sheet.

                             Heard the parties on the prayer for condoning the delay of about two days in filing this appeal.

                             On being satisfied with the grounds, the delay in filing this appeal is condoned.

                     2.       Heard the parties on merit.

3.       Mr. Abhay Kumar Mishra, learned counsel appearing for the O.Ps- appellant submitted that the complainant- respondent is seeking  to execute a compromise decree between the appellants-landlord and the complainant-tenant,  through the Consumer Forum, which is not permissible under the Consumer Protection Act (the Act for short). He relied on certain judgements.

4.       On the other hand, Mr. Azeemuddin learned counsel appearing for the complainant- respondent supported the impugned judgement and submitted as follows. The earlier tenancy came to an end when the appellants took over the possession of the tenanted premises as per the compromise decree. Though, the agreements dated 2.2.2008 and 6.10.2008 were entered into between the parties as per the compromise decree but they were independent agreements. As per the said agreements, though the complainant vacated the tenanted shop and paid the amounts and the rent but the appellants did not hand over the possession of the shop in question, and therefore the consumer complaint was/ is maintainable.   The remedy under the Act is an alternative remedy and is not barred under any law. He relied on certain judgements. He also submitted that on the objection raised by the appellants, the complainant on 17.4.2014 withdrew Title Suit No. 72/2011 filed by him for specific performance of contract, with liberty to file fresh suit in future, if required.

5.       The said facts are not disputed. The appellants dispute the remedy available to the complainant. According to the appellants, the remedy of the complainant lied before the Civil Court by either filing an execution case for execution of the compromise decree or by a suit for specific performance on contract, but the complainant cannot get the compromise decree executed or the agreements performed under the provisions of the Act.

  6.       This case has a chequered history which is narrated in the impugned judgement and therefore it is not reiterated in order to avoid repeatation.

                             However, it may be noted that earlier, the District Forum by order dt. 4.3.2009 had held that the complaint was not maintainable under the Act. The complainant filed appeal- F.A. No. 117 of 2009, which was allowed and  the matter was remitted back in view of the judgement  reported in 2008 (4) CPR-472 (NC). Thereafter the order impugned in this appeal has been passed.

  7.       The relevant facts in short are as follows. Two Eviction Suits, filed by the appellants; the appeals preferred therefrom; and a Money Suit filed by the appellants were compromised under a petition for compromise filed in Title (E) Appeal No. 12/2006, paragraph 4 of which reads as follows;-

                               “4.  That, the appellant agreed to hand over the decreetal tenanted premises to the respondent and the appellant in terms of receiving vacant possession of the decreetal premises agreed to create new tenancy in favour of the respondent by handing over another premises closely attached East to the decreetal tenanted premises with new terms and conditions on receiving refundable interest free security deposit and accordingly a new tenancy agreement has been executed by the respondent in favour of the appellant on …”

8.       Accordingly the compromise decree was drawn in terms of the compromise petition. Thereafter a rent agreement was made on 2.2.2008 between the parties. The main terms were as follows. The complainant agreed to vacate the tenanted premises. Another shop room closely attached east to the previous tenanted premises in occupation of the complainant, was to be let out to him. The appellants permitted and allowed the complainant to occupy and take vacant possession of the shop room described in the schedule as tenant on and from February, 2008 on payment of monthly rent of Rs. 1800/- per month. The tenancy was for five years with effect from 1.2.2008 with an option to extent for further period on mutual consent. The electricity charges, municipal and other taxes were to be paid by the complainant rent was to be enhanced in accordance with prevailing market rate at the end of every three years. The width of the shop premises was to be extended by merging about 2 ft. area, from the adjoining shop, before handing over the possession of the tenanted premises. The appellant received Rs. 1.5 lakhs as refundable interest free security from the complainant and issued a receipt thereof.

9.       The complainant vacated the tenanted shop on 2.2.2008 and started to pay rent as per the agreement. He also paid Rs. 20,000/- on 6.9.2008 for completing all required construction work in the shop to be let out to the complainant and for handing it over positively by 21.9.2008.

10.     Thereafter, another agreement was entered into between the parties on 6.10.2008 for payment of Rs. 30,000/- more by the complainant for construction of shop in question, which the complainant agreed and paid. It was agreed that the shop in question will be handed over positively by 14.10.2008.

                             But the appellants filed another eviction suit being Title Eviction Suit No. 4/2009 on 13.2.2009.

11.     According to the appellants, the said suit was filed as the complainant stopped paying rent of the premises in question, whereas according to the complainant he was not obliged to continue to pay rent without getting actual possession of the premises in question as per the agreements and without creation of the relationship of landlord and tenant.

                             The complainant filed the present complaint case on 3.3.2009. The said eviction suit was admitted on 4.3.2009. It further appears that the complainant also filed a criminal case against the appellants under sections 406/420 I.P.C. raising the same facts which have been raised in the complaint case.

12.     The learned District Forum has interalia held that mere pendency of the said eviction suit will not be a bar for the forum to pass appropriate order. It observed that inspite of the agreements and receipt of the amounts thereunder, and also the monthly rent, the appellants did not hand over possession of the premises as per the agreements, which amounted to utter deficiency in providing the desired services to the complainant as an old tenant. It accordingly directed the appellants to hand over the vacant possession of the premises in question as per the schedule of the complaint petition in terms of rent agreements with a compensation of Rs. 50,000/- for harassment, mental agony and financial losses incurred by the complainant within 30 days from the date of the order, failing which the appellants were also made liable to pay a fine of Rs.200/- per day till compliance of the order.

13.     Thus, the only question involved in this appeal is whether the grievances of the complainant can be remedied under the Act or not ?

14.     In our opinion, the answer would be in affirmative for the following reason.

15.     It is true that the said agreements were entered into pursuant to the compromise decree made by the Civil Court but it is also true that separate/ independent agreements were made under which the tenanted premises was vacated and new premises was to be given to  the complainant, on the terms and conditions agreed between the parties.

16.     It is not in dispute that the complainant handed over the possession of the tenanted premises 2.2.2008, but the possession of the premises in question has not been handed over to him till today, though the complainant paid the security, rent and other amounts as per the agreements.

           On the objection taken by the appellants, the complainant has withdrew the suit filed by him against the appellants for specific performance of contract.

17.     In our view the remedy of the complainant under the Act is not barred under any law.

                             It was held in the judgement reported in III (2013) CPJ 58 (Kar) Neeraj Bhope Vs Alpine Housing Development that;

                              “This Commission and various State Commissions, Hon’ble National Commission and Apex Court in various decisions held that even though an agreement contained the Arbitration clause, the right of the consumer in filing the complaint before the District Forum or Commission, choice is left to the consumer either to refer the matter to the Sole Arbitrator or to file a complaint before the District Forum or Commission.”

 18.     It is a settled position, that the remedy under the Act is an alternative remedy to a consumer. In the present case, after the complainant handed over the possession of the tenanted premises as per the agreements entered into pursuant to a compromise decree, the earlier tenancy came to an end. Then independent agreements were made for a fresh tenancy on fresh terms and conditions for another shop premises.

19.     In the case relied by Mr. Azeemuddin – 2008 (4) CPR 472 (NC) M/s Sinew Developers Ltd. Vs Madhav Raja Ram Outurkar, the complainant was in occupation of shop as tenant. The Developers acquired the property from the landlord. Agreement was entered into under which the complainant agreed to handover the tenanted shop to the developers in lieu of another shop in the building to be constructed. As the possession of the new shop was not given within the stipulated period, the complainant filed the complaint. The State Commission interalia held that surrender of the tenanted shop was consideration and failure to provide other shop was deficiency in service and pendency of suit instituted after filing of the complaint could not come into way of the complainant in securing possession of the shop through consumer forum. Such findings were upheld by the Hon’ble National Commission.

20.     In our opinion the complainant is a consumer so far as the said agreements are concerned. He handed over the possession of the tenanted premises and paid the amounts as per the agreements, but the appellants did not hand over the shop as per the agreements, which was clearly deficiency on the part of the appellants. Now a days, the landlords/ land owners themselves develop their property or get it done through a developer/ builder. In the later case, the developer/ builder steps into the shoes of the landlord. Therefore, if the landlord/ land owner/ builder/ developer, enters into any agreement for giving a premises to a person, certainly that person will become a consumer of such services, and he can raise his grievances before the Consumer fora.

21.     Further, in our opinion, the pendency of Title Eviction Suit No. 4/2009 filed by the appellants should not be a ground for dismissing the complaint and send the complainant to knock the doors of the Civil Court. Apparently, the said suit was filed by the appellants without handing over the shop in question to the complainant and thus without creating the relationship of landlord and tenant. 

22.     The judgements relied by Mr. Mishra on behalf of the appellants are of no help. In the case reported in (2001) 9 SCC 604 Laxmiben Laxmichand Sah Vs Sakerben Kanji Chandan , there was no term in the lease for clearing, repairing and maintenance of the building by the landlord and therefore it was held that the tenant was not a consumer. Similarly in the cases reported in (2009) 1 CPR 257 ( A.P) Consumers’ Interests Protection and Research Association (CIPRA) vs Ramesh Chabra; and  (1998) 1 CPR 501 (W.B.) Dilip Vs Biswanath Basak, the complaint about leakage of water or restoration of water supply were not treated as consumer complaints.

                             The Hon’ble Supreme Court has held that the judgements are to be read in the fact situation obtaining in the case and not as statutes.

23.     After hearing the parties at length and carefully going through the materials and the judgements placed before us, we find no merit in this appeal.

24.     In the result, the appellants are directed to hand over the vacant possession of the premises as per the agreements dated 2.2.2008 and 6.10.2008 within 60 days of this order. The tenancy as per the agreements will commence from the date of handing over such possession. The rent already paid by the complainant will be adjusted in future rent. The appellants will also pay Rs. 50,000/- to the complainant as compensation for harassment, mental agony and financial loss, within the same time. If the appellants fail to comply with any part of this order, they will be liable to pay fine of Rs. 200/- per day from the date of the impugned order i.e. 11.1.2012 till the compliance of the order.

                             This appeal stands dismissed with the observations, findings and the directions aforesaid.  

                                       This matter was heard by the bench consisting of the President and the Member- Mrs. Sumedha Tripathi. After the judgement was dictated with her consent, she informed that she may not be available for about 2-3 weeks due to her treatment.  Therefore this judgment is being pronounced and signed by the President, keeping in view the judgement of Hon’ble Kerala High Court dated 25.02.2013, passed in W.P.(C) No. 30939 of 2010 (N)- P.K. Jose-vs- M. Aby & Ors.

                  Issue free copy of this order to all concerned for information and needful.

                        Ranchi,

                        Dated:-13-05-2015