Date of Filing: 23/12/2020

Date of Judgement : 26/09/2023

Sri Sudip Niyogi, Hon’ble President

                                                                   BRIEF FACTS

The complainant who was originally a tenant under the land owners in respect of a shop room at premises No. 237 N.S.C. Bose Road, P.S. Netaji Nagar, Kolkata – 700 047 had entered into an Agreement for Sale on 15.06.2015 with the OPs who are the developers and land owners in order to buy one shop room measuring about 760 sq.ft. covered area at a consideration of Rs.1,00,000/- only in lieu of surrendering his tenancy rights for the purpose of construction of a new building.  OP 2 & 3 are the partners of OP 1 partnership firm who were engaged by the land lords i.e. OP Nos. 4 to 7 to develop the said property at premises No. 237, N.S.C. Bose Road, P.S. Netaji Nagar, Kolkata – 700 047 by way of raising a multi-storied building.  The land owners also executed power of attorney in favour of the said developers.  According to the said agreement for sale, the physical possession of the shop room of the complainant would be delivered within four months from the date of vacant possession of the existing space.  It was also agreed by the developers that they would pay compensation for loss of business during the period of shifting @Rs.35,000/- per month and they are also liable to pay damages in delay in delivery of possession of the shop room to the complainant @Rs.10,000/- per month.  According to complainant, though the entire consideration was paid by him, the deed of conveyance was not executed in his favour despite repeated requests.  One notice through his Advocate calling upon the OPs to settle the legitimate claim of the complainant, but despite receipt of the notice, they did not give any reply.  Alleging unfair trade practice and harassment and deficiency of service against the OPs, complainant filed the instant complaint praying for several reliefs including a direction for execution and registration of the deed of conveyance in his favour, compensation, cost of litigation etc.

On behalf of OP 1 to 3, one written version was filed denying the allegations of the complainant.  OP No. 4 to 7 did not appear to contest the case which was heard exparte against them.

Complainant filed his evidence on affidavit and also several documents and written argument.  No evidence was filed on behalf of the developer OP 1 to 3. 

Points for consideration is whether the complainant is entitled to any relief?

                                                            FINDINGS

That the complainant was a tenant in the premises of the landlords i.e. OP 4 to 7 was not denied by the developers (OP 1 to 3).  It was also not denied that the said developers following a development agreement that the land lords undertook to raise one multi-storied building at the premises as mentioned in the petition.  The copy of the agreement for sale dt. 15.06.2015 produced on behalf of the complainant reveals, the same was made between the complainant, the developers and also the land lords.  It was agreed that one 760 sq.ft. room would be given to the complainant at a consideration of Rs.1,00,000/- only and the said amount of consideration was already paid.  Apart from this, there are several other terms and conditions incorporated in the said agreement about giving compensation for loss of business during the period of shifting @Rs.35,000/- per month.  It was also agreed that the OPs would execute a proper deed of sale in favour of the complainant/purchaser after taking over possession of the room within six months from the date of delivery of possession and developers, if failed to comply and hand over the possession would be liable to pay damages @Rs.10,000/- per month for the delayed period.

That no evidence was submitted on behalf of the contesting OPs i.e. OP 1 to 3.  Though, in their written version, they claimed that no possession was delivered to the complainant, but he trespassed into the space and created sub-tenancy by inducting one stranger namely Lenskart, a shop of spectacles, though no document was produced in this regard.  On the other hand, complainant all through maintained that following his persuasions, the OPs delivered physical possession of the shop room to him in incomplete condition in December, 2019 without issuing any possession letter to him.

What we find, it is clear from the materials on record that the complainant has been in possession of the room which he had agreed to buy by way of an agreement for sale and the consideration of which was paid.  Whether he is a trespasser, as alleged by the developers, or not can’t be decided in absence of any cogent evidence. 

In this case, complainant prayed for execution and registration of a deed of conveyance in his favour in respect of the shop room and compensation on account of shifting charges, damages for delayed period of delivery, cost of litigation and completion certificate etc. 

So far as the prayer for a direction of payment of compensation with regard to shifting charges and damages as aforesaid is concerned, we find that no letter of possession as admitted by the complainant was issued showing the date of delivery of possession to the complainant.  He also did not specify the exact date when he vacated his tenanted room for the purpose of development and when actually he got the possession after construction.  In such a situation, we find lack of evidence on the part of the complainant with regard to his prayer for compensation and damages.

However, the complainant is entitled to a direction for execution and registration of a deed of conveyance in his favour and he is also entitled to cost of litigation for Rs.5,000/-.

Accordingly, it is

                                      ORDERED

 That the instant complaint stands allowed on contest against OP 1 to 3 and exparte against OP 4 to 7.

OPs are directed to execute and register a deed of conveyance in favour of the complainant in respect of the shop room, in accordance with the agreement for sale dated 15.06.2015 entered into between the parties. 

OPs are also directed to pay Rs.5,000/- as litigation cost.

OPs are directed to comply with this order within 45 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law. 

Dictated and corrected by me

President