Order-24.
Date-10/05/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OP2 is the landlady of the premises No.1/7y, Jibon Krishna Ghosh Road, P.s. Ultadanga, Kolkata – 700 032 together with Multi-Storied building standing thereon which is described as scheduled A of the complaint.
Whereas OP1 is the developer who entered into a development agreement with the OP2 landlady to develop the said property on certain terms and condition as agreed between them and not only that the OP2 landlady has also given power to the OP1 developer by way of a general power of attorney to promote as well as to do all the acts and things and deeds on behalf of the OP2 for the purpose of development of the said ‘A’ Scheduled property.
Complainant being an old aged and senior citizen agreed to take one flat which shall be more or less 500 sq. ft. in area at the second floor of the proposed building @Rs.1,200/- only per sq. ft. and as a result of which the OP1 developer entered into an agreement with the complainant on 11-06-2013 on certain terms and conditions/
As per the said agreement dated 11-06-2013 it is settled between the complainant and the OP1 developer that the cost of construction of the said flat shall be Rs.6 lakhs and cost of the construction may decrese or increase simultaneously with decrease and increase of the total area of the room accordingly to the fixed rate of sq. ft. as mentioned in the said agreement. It is also agreed by and between the complainant and OP1 developer that the complainant will pay a sum of Rs.1 lakh as earnest money at the time of agreement and the complainant shall pay the remaining amount on instalment during the construction of the schedule mentioned property.
As per the said agreement dated 06-11-2013 complainant paid the amount on different dates that is Rs.1 lakh on 11-06-2013, Rs.1 lakh on 16-08-2013, Rs.1 lakh on 27-11-2013, Rs.1 lakh on 19-08-2014, Rs.1 lakh on 29-04-2014, Rs.1 lakh on 20-10-2014, and Rs.1,06,500/- on 02-12-2014 and accordingly, complainant already paid Rs.7,06,500/- to the OP developer on the above mentioned dates by instalment as per terms and condition of the developer and OP developer duly received and acknowledged the same by endorsing in the Memo of consideration as well as in the back side of agreement dated 11-06-2013 and also by issuing separate acknowledgement and also complainant paid a sum of Rs.20,000/- on 03-02-2015 and in total the complainant paid Rs.9,06,500/- only for the purpose of cost of the construction. Though as per agreement an area of 500 sq. ft shall be provided it is specifically provided in the agreement dated 11-06-2013 that in case of increase or decrease of construction area of room accordingly to the fixed rate of sq. ft. have to be calculated and as per the demand of the complainant the OP1 developer have constructed extra 200 sq. ft. area of flat and so as per the fixed sq. ft rate i.e. @Rs.1,200/- per sq. ft. the complainant paid Rs.2,40,000/- only as extra to the OP1 developer. But after calculation the complainant have found the complainant have paid in total Rs.9,06,500/- only wherein the complainant have to pay Rs.8,40,000/- for the purpose of 700 sq. ft. of actual construction area. So, it is proved that as per rate complainant has already paid extra amount of Rs.66,500/- but complainant found after payment of full consideration price of said flat OP1 developer intentionally neglected to deliver the possession of the said flat. Complainant on several times requested the OP1 to deliver the said flat in habitable condition to the complainant and to execute and register the deed of conveyance and till the date the complainant did not get the possession of the said flat in spite of full payment and OP1 developer did not comply the request of the complainant rather on reply he sent a reply on 28-04-2015 inter alia with false plea but in the said letter OP1 admitted that he has constructed a 700 sq. ft carpet area of flat as per the agreement between the OP1 and the complainant and also admitted that that he received acknowledgement of Rs.6 lakhs from the complainant but in spite of that he intentionally avoided to admit that the complainant have already paid a sum of Rs.9,06,500/- to OP1 and from the letter it is clear that he is trying to sell out the said flat to any third party by returning back Rs.6 lakhs to the complainant and for that reason he has taken plea by sending another letter dated 29-01-2015 that he has inducted another person in the suit flat as tenant and not only that in that said legal notice dated 29-01-2015 OP1 developer stated that complainant had agreed to take tenancy of the suit flat and though in the agreement dated 11-06-2015 it is written the status of the complainant as tenant but the OP1 developer have embodied all the terms and conditions in the said agreement as agreement to sale between the developer and the intending purchaser and taking the opportunity of innocence and old age of the complainant, the OP1 developer have intentionally introduced the complainant as intending tenant in the said agreement which amounts to unfair trade practice on the part of the OP1 developer. So, in the above circumstances, for adopting such unfair trade practice and for deceiving the complainant such a manner complainant has filed this case for redressal and proper relief.
On the other hand, OP1 Md. Shahzada submitted that the present compliant is not maintainable and complainant is not a consumer. But it is admitted that the OP as developer entered into a development agreement on 25-01-2012 with Jaigun Nissa, the OP2 and with 6 others as the owners in respect of the property being 1/7Y, J.K. Ghosh Road, Belgachia, Kolkata – 37 under the terms and condition as stated therein.
As per terms of the said agreement dated 25-01-2012 developer entitled to induct any new tenant on developer’s allocation on payment of construction cost by the intending tenant only after handing over the tenanted portion to the existing tenant after construction and accordingly, the answering OP after completion of the construction duly handed over the tenanted portion to the complainant as he was an existing tenant in the subject premises and the developer was not given any right or authority to sell out any part or portion of the newly constructed building other than the developer’s allocation. On 11-06-2011 complainant entered into agreement with the answering OP for taking more portion of area 500 sq. ft. at the second floor of the proposed building thereon as tenancy on payment of construction charges of Rs.6 lakh and relied on the said agreement dated 11-06-2013 accepted it. After execution of the said agreement complainant requested to enhance the proposed tenancy portion for further 200 sq. ft. and also agreed to pay the construction charges for the same and as per the terms of the representation made by the complainant the OP duly constructed the further tenancy portion i.e. 700 sq. ft. and asked the complainant vide letter dated 29-01-2015 to take the possession on payment of balance construction charges. However, in violation of the representation the complainant paid only Rs.6 lakhs and failed and neglected to make balance payment in respect of 200 sq. ft. and as such the proposed tenanted portion was not handed over to the complainant and in spite of giving any heed to the several requests of the OP1 complainant issued a legal notice dated 27-03-2015 which was duly replied by the OP vide its letter dated 28-04-2015.
Fact remains developer has no right to sell out any portion of the proposed building as per agreement, so, the complainant’s allegation is false and fabricated and as per terms of the development agreement execution and registration of the deed of conveyance in favour of the complainant does not arise. So, the present complaint is not for any agreement for sale and the allegation of the complainant is false and fabricated for which the complaint should be dismissed.
It is also admitted that the said flat has been let out to OP3 tenant as because complainant did not take the possession on full payment.
On the other hand, OP3 by filing written statement submitted that complainant’s case is false and vexatious and the OP3 has no knowledge in respect of the agreement in between the complainant and the OP1. Further OP3 has submitted that OP entered into an agreement for tenancy of the said flat in the said premises with OP1 on 12-02-2012 and as per agreement dated 12-02-2012 OP3 paid entire amount and paying rent and got possession of the said property and OP3 is residing there without any disturbance. Moreover no dispute has ever been arisen regarding payment with the answering OP. So, under any circumstances, complainant cannot claim any right and his complaint is not maintainable.
Decision with Reasons
On proper consideration of the complaint and the written version and also considering the vital document on the basis of which complainant claimed his right and relief before this Forum is nothing but an agreement dated 11-06-2013 and on proper consideration of the said agreement it is found that as per terms and condition of the policy it is specifically mentioned that .the first party shall arrange for a tenancy agreement with the concerned landlady in favour of the second party and shall also arrange for proper rent receipt and cost of construction of the scheduled property should be Rs.6 lakhs to be paid to the first party by the second party. and peculiar factor is that that agreement is made in between Shahzada and Serajuddin but that agreement is not executed by the landlady or landlords so, under any circumstances, the landlady or landlord are not bound by the said agreement.
Fact remains in the OPs’ column Zaigun Nesa, Akhtar Hossain and Mehetab Alam are made parties who are OP2 to 4 respectively.
Peculiar factor is that OP3 appeared and by filing written statement submitted that he has been enjoying the disputed flat as the tenant on the basis of an agreement executed on 12-02-2012 in between Shahzada and Akhtar Hossain but this fact has not been disclosed by the complainant. Moreover, from the agreement between owner and the tenant Akhtar Hossain dated 26-02-2015 it is clear that Zaigun Nesa has inducted Akhtar Hossain in respect of disputed flat as tenant. Rent has been fixed and everything is fixed. So, tenancy of Akhtar is/was confirmed by the Landlady Zaigun Nesa but as per agreement as produced by the complainant tenancy has not been granted by the landlady in favour of the complainant, which is proved.
Moreover, complainant has tried to convince that when the complainant paid Rs.6 lakhs to construct the scheduled flat as tenant and said Rs.6 lakhs has been paid in view of cost of construction then complainant hired the service of the OP1 and complainant is a consumer. So, it should be looked into whether complainant was inducted as a tenant by Zaigun Nesa or not. If tenancy is not confirmed then question of construction on the tenanted portion by the OP developer does not arise because of the fact no registered powernama is produced by the complainant to prove that the OP1 developer was entrusted by the landlords or landladies to induct tenant and without induction of tenancy tenanted portion cannot be constructed or repaired etc.
Considering the complainant’s own documents and versions it is clear that complainant was not inducted as a tenant so, construction of tenanted portion by the developer is completely illegal and without any jurisdiction. Moreover, development agreement in between landlord or landlady and the OP1 is not produced.
Another factor is that after considering the document that is the KMC Tax bill it is found that Zaigun Nesa is not only the owner but also Zainul Abedin, Jahida Khatoon, Ainul Haque, Abeda Khatoon, Shahida Khatoon and Sarwar Ali are the owners in respect of the premises having premises No.1/7A/9, Jiban Krishna Ghosh Road, Kolkata – 700 037, Assessee No.0030700995. It is also proved that said Serajuddin is tenant in respect of one tenanted room already under Zainul Abedin, Jahida Khatoon, Ainul Haque, Abeda Khatoon, Shahida Khatoon and Sarwar Ali and there are other tenants namely Balu, Ali Molla, Habib, Kayum and that is evident from the certified copy of inspection book in respect of the premises no.1/7Y, Jiban Krishna Ghosh Road, Ward No.3, Assessee No.11-0030700995 and that is of dated 16-01-2013. So, it is clear that developer OP1 has or had no registered power of attorney executed by the landowners of the case premises for induction of tenancy.
Admitted position is that in the old building of the premises complainant was a tenant and after reconstruction of the building by the OP as per development agreement in between OPs1 and 2 complainant got his tenanted portion already and to be tenant in respect of the some other area he entered into an agreement with the developer and no doubt paid Rs.9,06,500/- but as per agreement without induction of tenancy by the landowners complainant cannot claim any tenancy right and cannot claim any benefit for registration of deed to that effect because landlord never granted any right to the developer for selling any portion for newly construction flat and OP has admitted that he has no power to sell any flat only he was instructed by the landlady to construct building and landlord or landlady shall induct tenant and arrange for proper rennet receipt and that building shall be completed by the developer and it shall be handed over to the complainant. so, it is clear that complainant intended to be inducted as a tenant in respect of a new flat but that has not been materialized because in the mean time landlord inducted another person that OP3 as tenant and delivered possession in favour of OP3. So, under any circumstances, complainant cannot claim that it is a property comes under the purview of the definition of housing construction. At the same time it is proved in respect of the case flat new tenancy has been granted by the landlord OP2 in favour of the OP3 and OP3 has been possessing, so under any circumstances, this agreement cannot be treated as an agreement to sale of flat but it is an agreement for being inducted as a tenant by the landlord but landlord or landlady has not inducted complainant as tenant when tenancy of the complainant in respect of the case flat is not proved then complainant cannot get any relief.
At the same time it is proved that Zaigun Nesa is not only owner of the premises but some other persons are owners and they did not give any registered power of attorney in favour of the OP1 for induction of the tenancy or construction of the tenanted portion. So, in the eye of law the alleged power of attorney is not registered or it is not executed by the landowners then this agreement in between the complainant and the OP1 is bought only binding upon them but not binding upon other OPs or other landlords when this is the fact then it can safely be said that complainant has failed to prove his tenancy right in respect of the case flat and he was never inducted as tenant in respect of the said flat but when OP1 admittedly received the entire amount of Rs.9,06,500/- from the complainant by adopting unfair trade practice then OP1 is legally bound to pay the entire amount with 12 percent interest over the same as per terms and condition but it is fact there is term for no execution of any sale deed or execution of any deed of conveyance in favour of the complainant but anyhow OP1 by misleading the complainant received Rs.9,06,500/- and by that act OP1 as developer has deceived the complainant and for which complainant is entitled to get back that total amount Rs.9,06,500/- from OP1 only and OP1 is legally bound to repay the sum along with 12 percent interest over the sum with effect from 03-12-2014 and till its full payment to the complainant on the ground OP1 received that amount for construction of the said flat but the landlord inducted the OP3 as tenant and OP3 is in possession and under such circumstances, complainant is not consumer under the OP2 to enjoy but he is consumer under OP1 and OP1 is legally bound to repay the said amount along with such interest and for harassing complainant in such a manner by adopting unfair trade practice by the OP1, OP1 is bound to pay Rs.1 lakh as compensation or harassing the complainant and for causing mental pain and agony to a senior citizen and also for deceiving the complainant in such a manner and further complainant is entitled to get litigation cost.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against OP1 with a cost of Rs.10,000/- and same is dismissed against OP3 on contest without any cost and dismissed ex parte against other OPs without any cost.
OP1 is hereby directed to repay the entire paid up amount of Rs.9,06,500/- to the complainant along with 12 percent interest over the same with effect from 03-12-2014 and till its full payment to the complainant.
OP is further directed to pay compensation of Rs.1 lakh to the complainant for causing mental pain and agony to the complainant and also for harassing the complainant, the senior citizen complainant and also for deceiving the complainant in such a manner and for adopting such unfair trade practice by executing such agreement.
OP1 further for adopting unfair trade practice and for deceiving the complainant in such a manner and to protect the customers interest from such a cheat developer OP1 a sum of Rs.50,000/- is imposed as penal damages which shall be paid by the OP1 to this Forum.
OP1 is directed to comply the order and to pay the entire amount within one month from the date of this order failing which for non-compliance of the Forum’s order and also for harassing the complainant for any further period OP1 shall be prosecuted u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
