Complainant by filing this complaint states that he entered into an agreement for sale dated 09.12.2011 with the ops and one Md. Saheb (Samim) for purchasing one room measuring 60 sq. ft. on the 2^nd floor of the premises No. 166/11/16, Keshan Chandra Sen Street, Kolkata – 700009, with an intention of storing business materials, essential for earing his livelihood.  Incidentally one of the developer Viz Md. Saheb (Samim) had expired and in his place op no.1 has been introduced as a developer.

          As per terms of the agreement for sale, the complainant is ready to pay the entire consideration price  at the rate Rs. 1,200/- per sq. ft. which totally amounts to Rs. 72,000/- and the complainant has already paid an earnest money of Rs. 45,000/- out of the total consideration price.  But in spite of several assurances, the ops failed and neglected to deliver the possession to the complainant.

          The complainant sent a letter dated 28^th April, 2014 through registered post with A/D asking for delivery of possession of the said area as per agreement, but in spite of receipt of the said letter the ops failed to deliver khas possession.

          Thereafter the complainant sent a legal notice to the ops on 23.06.2014 requesting them to deliver khas possession of the said property in terms of agreement for sale.  The complainant felt great mental agony and for which he is entitled to get compensation of Rs. 15,000/-.

          The complainant prays for an order directing ops to deliver the khas possession of the schedule mentioned property to the complainant.  An order directing the op to make registration of the scheduled property.  The complainant prays for compensation of Rs. 15,000/- and any other relief to which the complainant is entitled to.

          In this case, notices of the complaint was served upon the op nos. 2 & 3 on 27.09.2014, but intimation was served upon op no.1.  The ops were told to appear on 29.10.2014, but they did not turn up.  They did not file any written version.  Ops were found absent on repeated calls and the case was fixed for exparte hearing.  Even on the date of hearing, i.e. on 25.11.2014 the ops were found absent.  E-chief was filed by the complainant as because, the ops were found reluctant to take step, so the case was heard finally on 25.11.2014 and accordingly we proceeded for preparation of judgement.

Decision with reasons

          On proper study of the complaint and evidence-in-chief it is evident that the complainant entered into an agreement with the developers and landowner that he would get a shop room measuring 10 x 5 ½ ft. shop room as tenant in place of his existing shop room of same area on the ground floor i.e. in the newly constructed 1^st floor in lieu of that to 1^st floor of the newly constructed building as because he is the tenant under the landlord (Op No. 3).

          Fact remains the agreement was executed on 09.12.2011 and there are three parties – first party is Md. Saheb( Samim) and Mohan Das (Promoters op nos. 1 & 2), second party is Gangaram Das (Tenant, this complainant) and third party is Rajendra Kumar Dhar (Raju) i.e. Landlord who is the owner of the premises No. 166/H/16, Keshab Chandra Sen Street, Kolkata – 700009.

          As per agreement it reveals that tenant (complainant) will pay constructed tenanted portion of the 1^st floor in lieu of ground floor shall have to pay Rs. 1200/- per Sq. ft.

          It is also mentioned in the said agreement that 3^rd party (owner) appointed 1^st party the promoter to make construction in the said premises.

          Peculiar factor is that though landlord is noted as 3^rd party of the agreement but he has not signed giving consent to the terms and conditions of the agreement.

          Similarly on proper assessment of the entire agreement it is found that it is not an agreement to sale which is evident from the fact in the agreement there is clause to the effect that 1^st party will arrange for issuance for rent bill of the tenanted portion of the 1^st floor room from the 3^rd party (owner).  So admitted position is that complainant is the tenant under op no.3, landlord.  But peculiar factor is that there is no consent of the landlord 9Op No.3) in the said agreement and at the same time there is no power of attorney of the promoter-cum-developer op nos. 1 & 2 executed by op no.3 in favour of the op nos. 1 & 2 for acting on behalf of op no.3 to enter into an agreement in between complainant and op nos. 1 & 2 on behalf of op no.3 and at the same time no development agreement amongst the ops is produced to show that developer was empowered to act on behalf of op no.3 to enter into an agreement with complainant.Considering all those legal aspect and particularly principle of laws in Section 10, 11, 13 of the Indian Contract Act are complied by the promoter/developer or the tenant complainant and as per provision of section 13 of the Indian Contract Act apparently the present agreement in the eye of law is found invalid because it is settled principle of law tenant’s right is subject to owner’s approval on receipt of rent but that is also not proved by the complainant or op nos. 1 & 2.  So apparently the present agreement cannot be implemented before any court of law.

          Another factor is that in the development agreement there must be such clause that tenanted portion shall be the part of the owner’s (Landlord’s) allocation but no such document is proved in the landlord allocation tenanted portion is included.

          At the same time there is no such whisper that tenanted portion is allocated to the owner’s allocation when that is the fact then legally this agreement is not at all valid in the eye of law and as per provision of section – 10 it is not a valid agreement amongst the parties when the agreement landlord signature is not there as 3^rd party in the agreement.

          Moreover in view of the provision of chapter-VI of the performance of contract and particularly the provision 56 of the Indian Contract Act the present agreement is impossible in nature to bind the landowner op no.3 by any means and legal proposition is that regarding tenanted portion of the land lord promoter has no extraordinary jurisdiction to enter into such agreement with the tenant brushing aside the land lord. But in respect of renovation or replacement of the tenant in the newly constructed building of the land lord.  So, in all respect the entire agreement on the strength of which complainant has brought this complaint for redressal is found not valid and is not binding upon the landlord the op no.3 and when that is the clear position then this agreement cannot be implemented by any court of law treating it as a valid agreement.

          Truth is that ops have not appeared to contest but for that reason the complaint should be allowed exparte and particularly in this case validity of the agreement dated 09.12.2011 is a vital question and that is answered in negative form by such aforesaid reasons and another factor is that no consideration was passed and the claim of the complainant of payment of any such amount as advance is also proved a false story because no such payment receipt is proved in this case.  However on the backside of the payment receipt Xerox from of receipt of Rs. 45,000/- is noted but same is not received on behalf of the land lord and land lord is not received the entire amount so in such circumstances the agreement dated 09.12.2011 has no binding effect upon the op no.3 and at the same time legal authority of the op nos. 1& 2 is also not proved.

          In the light of the above observation we are convinced to hold that the present agreement cannot be treated agreement for any housing construction as per definition of C.P. Act.

          In the result, the complaint fails.

          Hence, it is

ORDERED

         That the complaint is and same is dismissed exparte against all the ops without any cost. But anyhow complainant may prefer to file such civil suit in this regard if it is not otherwise barred.