Final Order/Judgment

Debasis Bhattacharya:- PRESIDING MEMBER

The instant case filed u/s 12 of the Consumer Protection Act 1986 by the complainant originates from his grievances arising out of the opposite parties developers’ denial to hand over possession of a shop space in the multistoried building raised by the developer in terms of the prior agreement and to arrange registration and execution of deed of conveyance in respect of the said shop space. The fact of the case in a nutshell is as follows.

Reportedly, the complainant was a tenant of the OP 3 and 4 who actually were the land owners, in respect of a shop room admeasuring more or less 125 sq. ft. at ground floor of Moholla Bally East, Mouza Bally, JL No.9, Holding No.68/13+13/13, RS Dag No.3012, RS Khatian No. 468, LR Dag No.4013, LR Khatian No.5845 and 2741, under ward No.7 of Hooghly Chinsurah Municipality, Chawk Bazar, P.O. Hooghly, P.S. Chinsurah, District, at a monthly rent of Rs.120/- per month.

However, during the tenancy of the complainant, the landowners i.e. OP 3 and 4 with a plan to develop the property, entered into a development agreement for construction of a multistoried building at the abovementioned place with OP1 and 2. Accordingly, OP 3 and 4 executed a registered power of attorney in favour of OP 1 and 2.

The complainant, on the strength of his being a tenant at the particular holding no., entered into an agreement with the developer on 08.01.14 for one 125 sq.ft. shop at the proposed ‘Agomoni Apartment’against a consideration price of Rs.1,50,000/-. The complainant claims that on the same day it was further agreed mutually by and between the complainant and the opposite parties 1 and 2 that as the complainant was a long time tenant, the final negotiated price may be settled at Rs.1,00,000/-. In this regard a confirmation letter is claimed to have been issued by OP 1 and 2 on 08.01.2014. The complainant, by this time claims to have paid an amount of Rs.30,000/- on 05.01.2014 and the same was duly received and acknowledged by OP 1 and 2. The developer committed to hand over possession of the shop space within 12 months from the ‘date of the said agreement and completion of construction of the said building’.

Here it is not clear whether it was 12 months from the date of agreement or from the date of completion of construction of the building.

However, allegedly in spite of completion of the construction of the building, several requests from the complainant’s end and even legal notice the possession of the shop was not handed over to the complainant and the deed of conveyance was not executed.

In this mean time, the complainant confesses to have made a measurement of the shop space with the help of a surveyor and claims to have detected that the area of the space was 113.5 sq. ft., i.e. 11.5 sq. ft. lesser than the committed one.

On the other hand the developer is claimed to have demanded further amount of Rs.30,000/- for electricity connection while there was no mention in this regard in the agreement. However the complainant expresses his willingness to pay the balance consideration price of Rs.70,000/- in terms of the purported agreement.

Now the complainant claims that the shop was the source of his livelihood and the aforementioned attitude of the OPs caused substantial mental and financial damage for him.

Considering the treatment extended to him by the OP side as deficiency of service and unfair trade practice, the complainant approaches to this Commission with a prayer for imposing direction upon the OPs to hand over the possession of the shop room in question, arrange respective registration and execution of the deed of conveyance on receipt of the balance consideration price of Rs.70,000/-, make adjustment of consideration price as per prevalent market price for shortfall of 11.5 sq. ft. area, pay Rs.1,00,000/- towards compensation, Rs.25,000/- ‘for the suit’ and Rs.50,000/- for ‘damages’.

Evidence on affidavit and brief notes of argument filed by the complainant in course of hearing of the case are almost replicas of the complainant petition.

The complainant along with his complaint petition has filed a photocopies of the agreement dtd.08.01.2014 drafted in Bengali language, only in respect of demolishing the existing shop-structure situated on the land and handing over a‘godown’ to the complainant in turn on completion of the construction of the proposed multistoried building against certain consideration price, a further commitment in the letterhead of the OP 1 modifying the consideration price, the agreement between the landowner i.e. OP 3 and 4 on one hand and OP 1 and 2 on the other, a money receipt of Rs.30,000/-, filled up shop-booking form duly signed by the complainant and OP 1, legal notice sent to the OP 1 and an unsigned draft agreement only in plain paper related to sale of the shop space to the complainant by the OP 1.

In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under section 2(1)(d)(ii) of the Consumer Protection Act are concerned. Both the consumer and the OPs are residents/having their office address within the district of Hooghly.

The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-

Thus, this Commission has both territorial as well as pecuniary jurisdiction to proceed in the instant case.

Written version was filed collectively by all the OPs in which, not only almost all the developments as narrated by the complainant have been denied but also all the charges leveled against the OPs have also been brushed aside. Denials and denials are the only subject matter of the written version but the actual state of affairs as per the version of the OPs is nowhere in the written version is depicted. Surprisingly, the decision of the OP 3 and 4 i.e. the landowners to develop the property and accordingly entering into a development agreement with OP 1 are also denied. These denials are spread through serial no. 1to serial no.14 of the written versions containing 18 (eighteen) serial nos.

However in serial no.15 of the written version the OPs contradict themselves by admitting that the ‘complainant entered into a sale agreement with the opposite party’ to buy a shop room. In the following sentence the OPs expresses their grievances over the issue that the complainant did not pay the expenses for installing certain electric transformer.

In serial no. 16, the OPs even expresses their willingness to execute the sale process, should the complainant pay the expenses towards installation of the transformer.

The written version is signed by all the OPs whereas the Affidavit in chief is signed by OP 3 in personal capacity starting with the sentence “I am the opposite party in the instant suit”.

However on receipt of the copy of the said Affidavit in chief the complainant filed interrogatories on 25.03.2021. No replies to the interrogatories were received from the OP’s end.

The case was finally fixed for argument on 17.01.23. The complainant side was found ready. However OP side prayed for further adjournment on the ground of Ld. Lawyer’s illness. As the adjournment petition was not moved even after waiting for a reasonable time, the same was rejected. OP side was given liberty to argue their case and for filing BNA during office hours of any working day. However OP side preferred to shun.

Materials on records are perused.

On meticulous examination of the complaint petition, documents annexed with the same, admission made by the OP in their written version and evidence on affidavits filed by both the sides, it transpires that there was an initial informal agreement between the complainant side and the OP side in the matter of sale of a 125 sq. ft. shop space and the complainant side made a payment of booking money of Rs. 30,000/- to the OP 1. The consideration price as agreed upon by both the sides was Rs.1500/- per sq. ft.

On consideration of all the aspects of the case this District Commission is of the opinion that there was apparent breach of trust on the part of the OP side.

With mala fide intention OP 1 and 2 deviated from their earlier stand resulting in unfair trade practice.

Hence it is

ORDERED

That the complainant case no.152/2018 be and the same is allowed on contest but in part.

The opposite party No.1 and 2 are directed to take all necessary steps for handing over possession of a 125 sq. ft. shop space in the multistoried apartment raised by them, on realization of the entire consideration price as agreed upon in the agreement for sale. OP 1 and 2 will not put any undue pressure on the complainant to make any payment towards installation of any transformer. On measurement, if it is found that the area of the shop space is less than 125 sq. ft., OP 1 and 2 will be liable to make adjustment in the consideration price accordingly. Besides, OP 1 and 2 will arrange registration and execution of the deed of conveyance as soon as the possession of the shop space is handed over to the complainant after the said adjustment.

Apart from that, the OP 1 and 2 will pay to the complainant Rs.10,000/-  as compensation for mental pain and agony and Rs.5,000/ against litigation cost.

The compliance of this order has to be done within 45 days from the date of this order. In case of non-compliance the OPs will be liable to pay Rs.10,000/- to the Consumer Legal Aid Account.                                                             

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information and necessary action.

The final order will be available in the website www.confonet.nic.in.