Date of Filing : 22 March, 2021.

Date of Judgement : 06 June, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when the complainant, Sri Narendranath Das, filed a complaint under Section 35 of the Consumer Protection Act, 2019, hereinafter called the said Act, against (1) M/s. Shantiniketan Housing & Construction Co., (2) Sri Bibhas Maity and (3) Sri Sankar Banik, hereinafter called the Opposite Parties or O.Ps., alleging deficiency in service occurred from the part of the O, Ps.

            In brief, the complaint petition states that Complainant was a tenant of the owner Sri Ananda Banerjee for his shop room of area 96 sq. ft. situated at 3A, Baishnabghata Bye Lane, Kolkata – 700 047. By an agreement dated 04/05/1996 the owner sold out the premises lying and situated at 3A, Baishnabghata Bye Lane and the O. P. – 1 company, i. e.  M/s. Shantiniketan Housing & Construction C0., purchased this premises through its partners stated as O. P. – 2 & 3 hereinabove. O. Ps. then decided to construct a building at the premises and requested the tenant/complainant to vacate his shop room so that they can allot a shop room of same area after constructing the building.  They made an agreement on 02/04/1997 with the complainant stating that the complainant would be provided a shop room of area 96 sq. ft. as he was using in his previous shop room for a consideration of Rs.10,000/-.  Complainant paid Rs.5,000/- on 09/07/1997 during construction of the ground floor as per agreement and it was decided that the balance amount of Rs.5,000/- would be paid by the tenant/purchaser/complainant when the possession was given.  After construction of the building the  complainant got possession of his shop room of area 96 sq. ft. on 16/08/1997, where he is running his business.  But, the complainant alleged that the O. Ps. failed to execute and register the Deed of Conveyance in respect of his shop room in his favour.  He sent a legal notice through his Ld. Advocate to both the partners of the O. P. – 1 company on 18/02/2021 demanding execution and registration of the Deed in his favour after receiving the balance consideration.  But both the partners refused to accept the notice. Finding no other way to resolve his long awaited work of registration he ultimately filed his complaint petition before this Commission praying (i) to direct the O. Ps. to execute and register the Deed of Conveyance in his favour after receiving the balance consideration of Rs.5,000/-,  (ii) to direct the O. Ps. to pay compensation of Rs.50,000/- for mental pain and agony he has suffered, (iii) a litigation cost of Rs.20,000/- and such other reliefs under the law.

            Complainant submitted copies of (i) Supplementary Agreement dated 02/04/1997, (ii) Receipt dated 09/07/1997 showing payment of Rs.5,000/- to the O. P. – 1 company,  (iii  Possession letter dated 16/08/1997 issued by the O. P. – 1 company and (iv) the legal notice dated 18/02/2021 issued to the partners of the O. P. – 1 company.

            This Commission served notices, after admission, to all the O. Ps. to appear and contest the case.  But all notices returned back with postal remarks ‘Addressee left without instructions’ which are considered as good service.  All the O. Ps. never attended this Commission to contest the case and the case proceeded ex parte. Later Complainant filed his Affidavit-In-Chief and ultimately ex parte argument was heard.  Subsequently, complainant filed Brief Notes of Argument.  We are now in the juncture to deliver the Final Order in this case.  We have to decide whether the O. Ps. are deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for.

DECISION WITH REASONS

            According to the statement of the complaint, complainant was a tenant to the then owner of the premises, Sri Ananda Banerjee, for a shop room at the premises at 3A, Baishnabghata Bye Lane, Kolkata – 700 047, in which complainant was running his business. O. Ps. purchased the premises from the land owner through an agreement dated 04/05/1996 and then they decided to construct a building thereon.  The O. Ps. made an agreement with the tenant of the shop room, i.e. the complainant, on 02/04/1997 with an assurance that the complainant would get a shop room in the newly constructed building of the same area as was the previous one within two and a half months from vacating the shop room for a consideration of Rs.10,000/-.  Complainant paid Rs.5,000/- to the O. Ps. on 09/07/1997 as per the agreement when he vacated his shop room. It was written in this agreement that complainant had to pay the balance amount of Rs.5,000/- during handing over possession of the shop room.  On 16/08/1997 O. Ps. handed over possession of the shop room to the complainant through a letter dated 16/08/1997.

            Let us first scrutinize the annexed document filed with the complaint petition.  We find that a ‘Supplementary Agreement’ was made on 02/04/1997 which was signed by the representative of the O. P. company and the complainant and this agreement was neither registered nor notarised. In this supplementary agreement the O. Ps. are described as the ‘First Party/One Part’ and the tenant/purchaser as the ‘Second Party/Other Part’. Sri Sankar Banik, the O. P. – 3, has also signed in each page of this Supplementary Agreement consisting of 4 pages.  In this agreement it is stated that O. Ps. purchased the premises at 3A, Baishnabghata Bye Lane from the land owner, Sri Ananda Banerjee, who also signed in this agreement as a witness, through an ‘Agreement’ the details of which has not been given in this Supplementary Agreement. The O. Ps. thus became the owner of the premises as well as the developer of the building to be constructed at the premises at 3A, Baishnabghata Bye Lane, Kolkata – 700 047.  Complainant has not given any clarification why this Supplementary Agreement was made and whether there were any other agreement between the complainant/tenant and the O. Ps. or not.

            Complainant alleged that the O. Ps. failed to execute and register the Deed of Conveyance in respect of his shop room till the date of filing this case despite his several efforts, though possession has been given on 16/08/18997 and that’s why he has filed the instant complaint.  But when we go through the possession letter issued by the O. P. – 1 company, signed by both of the partners, i. e. O. P. – 2 & 3 as stated herein above, on 16/08/1997 we see that in the second paragraph it is written as:

            “We undertake that we shall transfer by executing the deed of sale in favour of said Narendra Nath Das as and when the said Narendra Nath Das prepared the deed with requisite stamps for registration at the Sub Registry office at Alipur.”

            This paragraph clearly states us that it was the duty of the tenant/complainant that he should have to arrange for the execution and registration of the Deed of Sale/Conveyance by preparing the Deed which he failed to do so as we have not found any evidence/document which speaks the opposite.  From the date of possession, i. e. from 16/08/1997 to 18/02/2021, i. e. for a long period of twenty three and a half years, complainant remained inactive in execution and registration of the necessary Deed  and this indicates that his allegation that the O. Ps. failed to execute and register the Deed is partly true, complainant was also liable to take initiative in getting his shop room registered in his name immediately after getting possession. A question now arises in our mind: whether this Commission should proceed with the instant complaint or not where the complainant himself is deficient in his duty? Then came in our view the landmark decision reported in (1994) 1 SC 243, Lucknow Development Authority Vs. M. K. Gupta, [AIR 1994 SC 787] where the Hon’ble Supreme Court Observed as under: 

            “To begin with the preamble of the Act, which can afford useful assistance to ascertain       legislative intention, it was enacted, ‘to provide for the protection of the interests of       consumers’. Use of the word ‘Protection’ furnishes key to the minds of the makers of the Act.”

            Thus, keeping aside the lapse of a long period we have to go ahead with the case depending on its merits. Moreover, until and unless execution of the deed of conveyance is complete, cause of action still persists.  Here, the O. Ps. are the owners of the premises as well as the developer of the building and they have the primary duty to execute and register the deed in favour of the purchaser. As this Deed is not registered in favour of the complainant, so the O. Ps. are deficient in rendering proper service to the purchaser/complainant.  Here we have in our mind that the complainant was a tenant and he is getting a shop room in the new building by giving up his tenancy right and paying Rs.10,000/- also as a consideration to the O. Ps.  Though the complainant was bound to pay the balance amount of Rs.5,000/- to the O. Ps. during receiving possession of his shop room as stated in the Supplementary Agreement, the O. Ps. stated in the first paragraph of the possession letter dated 16/08/1997 that:

            “ …… and balance of Rs.5,000/- will be paid by you at the time of Registration …….”

            So, the complainant will have to pay Rs.5,000/- during registration of the Deed.

            Complainant stated in his complaint petition that the O. P. – 2 & 3 refused to receive the legal notice he had issued through his Ld. Advocate.  But no document has been filed in support of such refusal.  Moreover, when this Commission sent notices to all the O. Ps. these notices returned back with postal remarks “Item Returned Addressee Left without instruction”.  In the Supplementary Agreement as well as in the money receipt the address of the O. P. – 1 company is written as A/70, Baghajatin, Calcutta – 700 092, whereas in the Possession Letter dated 16/08/1997 two addresses are given there, in addition to this address there is another address as: A/250, Sree Colony, Calcutta – 700 092.  Complainant failed to include the other address of the O. P. – 1 company in his complaint.  If the O. Ps. did participate in this case it would have been better for us to properly adjudicate the matter.

            Considering the aforesaid discussions, we are of the view that the O. Ps.  are deficient in rendering desired and proper service to the complainant as they have not executed the Deed of Sale/Conveyance in respect of the shop room in favour of the complainant and thus the complainant is entitled to get relief.  On the other hand the complainant is also liable for some deficiency from his part as he had not taken any effective initiative to get his shop room registered. Consequently, no compensation is being awarded.  Complainant is entitled to get litigation cost as he is compelled to knock at the door of this Commission to get the required registration.  

Hence,

            it is

             ORDERED

          That the Complaint Case No. CC/169/2021 is allowed ex parte against all the Opposite Parties.

            The Opposite Parties are directed to execute and register the Deed of Conveyance in respect of the shop room in favour of the Complainant as per the Supplementary Agreement dated 02/04/1997 within 60 days from the date of this order.  Cost of registration will be borne by the Complainant.

            All the O. Ps. are also jointly directed to pay Rs.8,000/- to the complainant within this aforesaid period failing which 10% p. a. simple interest will be imposed on this amount till realisation.