This complaint case is filed by one Sri Loknath Parida and three others against M/s Surya Prakash Trading Pvt. Ltd. and three others, praying for a direction upon the OPs to execute and register the Deed of Conveyance, deliver possession of the shop room in question and also to pay a compensation of Rs. 1,00,000/- and costs of the present proceedings.
Briefly narrated, case of the Complainants’, is that, they executed an Memorandum of Agreement with the OPs on 22-04-2015, whereof the OPs agreed to deliver a shop room having 120 sq. ft. area on the front side of the ground floor of the newly constructed building situated at Premises No. 12A, Bijoy Bose Road, P.S. Kalighat, Kolkata – 700 025. It is also stipulated in the said agreement that the OPs should complete the construction work of the newly constructed shop room according to building sanctioned plan within 24 months from the date of execution of the agreement or sanction and shall handover possession of the said shop room to the Complainants within 6 months from the date of execution of the agreement and/or obtaining sanction from the KMC. It is the allegation of the Complainants’ that in spite of completion of construction work after expiry of the period of the said agreement, OPs have failed and neglected to perform as per terms of the said agreement. So, Complainants’ served legal notice through their Ld. Advocate, but to no avail. Complainants are always ready and willing to bear all expenses for execution and registration of the Deed of Conveyance and to take delivery of possession of the suit shop room. Holding the OPs responsible for the mental stress and agony, Complainants’ filed the instant case.
Case of the OP No. 1, on the other hand, as stated in the WV, is that, after entering into a Development Agreement with the landowners, while steps were being taken to obtain sanctioned building plan from the authority concerned, Complainants, accompanied with some influential persons of the locality/party men, on or about 22-06-2012, raided the site office of the company and represented that they were the tenants in respect of Premises No. 12A, Bijoy Bose Road, P.S. Kalighat, Kolkata – 700 025 and forcefully demanded 120 sq. ft. commercial space out of grace for carrying on business for commercial interest in the proposed building to be constructed; otherwise, they would not allow the OP no. 1 to undertake construction of the proposed building at the said premises and produced an incomplete typed agreement running into 7 pages, several portions of which were blank. It is also stated that the Rs. 10/- non-judicial stamp paper was not issued in favour of any of the Complainants and signatures of both the Directors of OP No. 1 company was obtained under duress. It is further alleged that, after perusing the photocopies of alleged agreement annexed to the petition of complaint, this OP found that page nos. 2 to 6 of the original agreement were replaced with newly inserted pages which does not contain signature of any of the Directors of the OP No. 1 developer. Further, the measurement and particulars of the premises given in page 6 of the alleged copy of forged agreement was also wrong. It is asserted that OP No. 1 is not bound to give effect to the forged agreement. Accordingly, this OP prayed for dismissal of this complaint case.
OP No. 4 also contested the case by filing WV. It is stated by this OP that area and particulars of the premises as mentioned in para 1 of the complaint petition is not correct. Echoing OP No. 1, it is stated by this OP also that actual measurement of the premises in question is 3 Cottahs 10 Chittacks and not 3 Cottahs 3 Chittacks 5 sq. ft. as mentioned in the petition of complaint. It is further stated that she was not a party to the purported Agreement for Sale and as such, she has got nothing to do with the same in any manner whatsoever. The story of 140 sq. ft. tenancy etc., as alleged in para 5 of the petition of complaint, are mala fide and incorrect and hence denied. Elaborating further it is stated that one Bhomra Behra was the original tenant and Dibakar Parida was his son-in-law and taking undue advantage of the family disputes in between the heirs of said Bhomra Behra, since deceased, and Dibakar Patrida, since deceased, the Complainants practiced fraud, misrepresentation and coercion to establish themselves as tenants and have now made false statements before this Forum. Recently one Digambar Behra also filed writ application before the Hon’ble High Court impleading one of the Complainants, namely, Complainant No. 2 in this respect. This OP, thus, prayed for dismissal of the case.
Points for consideration
On the basis of above mentioned averments, following points are made to arrive at a judicious decision pertaining to the disputes at stake.
- Whether the present complaint case is maintainable?
- Whether there is any deficiency in service on the part of the OPs, as alleged?
- Whether the Complainants are entitled to the reliefs sought for by them?
Decision with reasons
Point No. 1:
In order to determine this issue, let us first consider whether the Complainants’ can be treated as “Consumers” within the definition as enumerated under the Consumer Protection Act, 1986.
Sec. 2(10(d) of the Consumer Protection Act, 1986 stipulates that, “consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];
The aforesaid definition makes it absolutely clear that “consumer” means any person, who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.
It is mentioned in the photocopy of purported Agreement for Sale that the owners and developer shall handover/deliver a shop room having 120 sq. ft. area on the ground floor of the flat on ownership basis free of costs. Thus, we find that the very essence of “consideration” is missing in the said Agreement for Sale. Against such backdrop, we are afraid, the Complainants’ cannot be treated as “consumers” and consequent thereof, the present case is not maintainable in its present form and prayer.
This point, thus, goes against the Complainants.
Point Nos. 2&3:
Both these points are taken up together for the sake of brevity of discussion.
An allegation has been made from the side of the contesting OPs that, with an ulterior motive, the Complainants changed page nos. 2 to 6 of the Agreement for Sale. It is further pointed out by these OPs that the stamp paper does not belong to Complainants. Significantly, no such concerted effort is made from the side of the Complainants to allay such apprehension by producing original copy of the Agreement for Sale before this Forum.
Be that as it may, on going through the purported photocopy of Agreement for Sale on record, we come across following discrepancies.
First, page nos. 2 to 6 does not bear the signature of either of the Directors of OP No. 1 developer or any of the landowners notwithstanding it bears the signatures of the Complainants.
Second, same fact has been casted at the bottom line of page no. 3 vis-a-vis first line of page no. 4.
Third, on page nos. 4 and 5 of the purported copy of Agreement for Sale there is no mention of the monthly rent of the 140 sq. ft. shop room.
Fourth, on page no. 4 of the purported copy of Agreement for Sale, after sl. no. “D”, next serial is mentioned as “G”.
Fifth, Sl. no. “G” has been mentioned on both page nos. 4 and 5 of the purported copy of Agreement for Sale.
In all, the photocopy of the purported copy of Agreement for Sale does not appear to be a trustworthy document to us and as such, based on such a dubious piece of document, we are not inclined to pass any order.
Further, there appears to be a tenancy disputes in between the owners of the plot of land and the Complainants. Unfortunately, this is not the proper Forum to adjudicate such dispute.
In the light of our foregoing discussion, we are of opinion that the Complainants are not entitled to any relief.
Both these points are, thus, decided against the Complainants.
Hence,
O R D E R E D
that CC/39/2015 be and the same is dismissed on contest against OP Nos. 1& 4 and ex parte against rest of the OPs. No order as to costs.
