JUDGEMENT Complainant by filing this complaint has submitted that with an intention to purchase a room in the premises No.20A, Netaji Subhas Road, Ward No.45 under KMC, P.S.-Hare Street, Kolkata-700001after negotiation and agreement for assignment of lease with the op was executed between the complainant and the op no.1 as the assignor and op no.3 & 4 as the Confirming party and after negotiation a valuable consideration had been fixed at Rs.9,26,300/- and as per terms of the agreement of the op are under obligation to provide the complainant a room being No.2D, measuring 370.52 sq. ft. super built up area of the premises No. 20A, Netaji Subhas Road, Ward No.45 under Kolkata Municipal Corporation (KMC). Complainant paid total consideration of Rs.9,26,300/- to the op no.1 and after receiving the said amount and on persuasion of the complainant, op no.1 handed over the possession of the said room on 30.04.2006 without completion of work as per terms and conditions of the agreement and without registering the deed of conveyance/deed of assignment in favour of the complainant which constitutes a case of negligence and deficiency in service and thereafter complainant sent a letter on 11.05.2012 asking the ops to complete the unfinished job and also to execute the Deed of Assignment of lease in favour of the complainant but till date the ops made no Endeavour to complete the said job as asked for and that such default on the part of the ops caused sufferings, harassment and mental agony and as a consumer against such overact of the ops and negligent and deficient manner of service of the op and accordingly this complaint is filed for redressal. On the other hand op by filing this written statement has submitted that the present complaint is not maintainable and there is no question of deficiency in service and submitted that as per agreement possession has already been delivered in the year 2006 and so the case is barred by limitation and it is not maintainable because there was no question of deficiency and negligence on the part of the op and accordingly they have prayed for dismissal of this case as same is Agreement of Sublease. Decision with reasons On proper consideration of the entire material including the agreement of the sub-lease made on 27.11.2004 on the basis of which complainant has appeared before this Forum, it is found that the said agreement is not for sale and fact remains an agreement for lease is to be distinguished from of lease because lease is actually a conveyance of a estate land whereas a contract is made merely an agreement that such a conveyance is shall be registered one as per provision of 105 TP Act and a sub lease agreement is nothing but an agreement in favour of the tenant and an agreement by lessor is nothing but a promise to grant tenancy for a certain period. As per judgement of the Hon’ble Supreme Court reported in 1994 (2) SCC 797 the present agreement of sub is not creating a present demise and in respect of an agreement no registration is required. In this case after considering the agreement of sub lease we have gathered that subsequently in the year 2006 i.e. on 30.04.2006 possession has been handed over and since then complainant has been paying lease rent to the op after taking possession and he has been paying Rs.3,710/- as lease rent of the premises till now on receipt of payment. So apparently the tenancy has been created in favour of the complainant by the op on the basis of agreement of sub lease after granting of rent receipts. So, it is a relationship in between the complainant and op is nothing but the land lord and tenant and moreover as per provision of the Act Section 105 of the T.P. Act if possession is given under an agreement of lease purporting to a sub-lease, But if rent is paid by the sub-lesee, sub-lessee is not a tenant under the original land holder. But in the present case it is clear that it is an agreement to sub lease and if it is not registered within time then after delivery of possession of the said room in favour of the complainant as per agreement to lease on receipt of payment of lease holder property in favour of the complainant, complainant has become a tenant under the op when the lease is for more than one year, it shall be registered and when in this case complainant got possession and has been paying lease rent in that case complainant has become a tenant. So the relationship of the complainant and op has become landlord and tenant. Moreover in the lease deed it is specifically mentioned that the said room is sub-leased to the complainant for the residuary period of the original lease deed dated 07.07.1995 granted in favour of the lessee with an option for 99 years subject to the terms and conditions containing in the said registered deed of lease dated 07.07.1995 and so the present lease deed is not an instrument of proper form by which the condition of contract are leading and finally ascertained and the present deed by the present agreement to lease and after payment of lease rent to the op by the complainant exclusive possession is vested to the complainant and the possession has already been handed over. Moreover as per agreement of sub lease it is found that there is no transfer of interest in respect of the land but transfer of interest in respect of the room for a certain period. Moreover payment of rent for the room by the complainant to the op till now initially proves that he is a sub-lessee and rent is being paid as tenant to the lessor and when under the present document complainant got exclusive possession of the room and he has been paying rent per month and he is considered to be a tenant. Considering the present situation we are convinced to hold that complainant has failed to show any sort of negligence and deficiency on the part of the op and moreover on the basis of the present agreement of sub lease practically the complainant did not take any step since 2006 till filing of this case in the year 2012 and took no initiative for registration of the deed of lease and practically the complainant ought to have prayed for that to the ops the original lessor for registration of the said lease deed. But he did not do that and in this respect we have gathered that the agreement to lease is of such a nature that cannot be properly adjudicated by the Consumer Forum for directing the lessor to execute. But the entire matter is can only be adjudicated by Civil Court and fact remains deficiency or negligence on the part of the op has not been proved rather the deficiency on the part of the complainant is well proved that he is silent for more than 6 years about registration and in view of the provision of 14(1) of the C.P. Act it is settled that this Forum constituted under the act and can grant only those relief which are enumerated in section 14(1) but under any circumstances this Forum cannot direct the lessor to execute the lease deed because lease deed is not in respect of any saleable right because it is an agreement of sub-lease not a lease and such a matter can only be decided after considering the nature of lease and sub-lease etc and the relationship in between the complainant and the op but at present it is clear that complainant has been possessing the room on the basis of the agreement of sub-lease and till now he has been paying lease rent. Then his right is no doubt one type of tenant under the op and for which we are convinced to hold that such a matter cannot be entertained by this Forum and complainant’s only option is to pray for such lease before Civil Court for determination whether by sublease he has become a tenant or owner because complainant himself has produced receipt of lease rent as sub-lessee and op is actually lessor under the original landlord and as per Section 105 of T.P. Act the price is called as premium and money and other thing is called as rent. So, all those matters cannot be treated as any contract in the eye of law but as per provision of Section 105 and 107 of the T.P. Act we are convinced that when the agreement of sub-lease was not registered within one year from the date of execution and when the complainant has paid rent of the sub-lease room then complainant has become a tenant under the op and till now he has been paying lease rent. So, complainant status is not more than tenant under the op at the present stage for which the Consumer Forum has no right to decide this matter and at the same time this Forum cannot direct any lessor to execute the sub lease deed. If agreement of sub lease is not registered after lapse of one year then the status of the said such sub-lease shall be treated as tenant as per law and in the present case from the agreement of lease deed it is found that the complainant is a sub lease holder tenant under the op, then complainant can get relief from Civil Court and in the eye of law he is not a consumer and complainant status is a sub-lease holder tenant under the op who is actual lessee of the property as per original registered sub lease deed . dated 07/07/1995. Thus the complaint fails. Hence, it is ORDERED That the complaint be and the same is dismissed on contest without any cost against the ops.
| | [HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER | | 
