This complaint is filed by the Complainant u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to hand over him the questioned shop room along with execution of the sale deed in his favour till filing of this complaint.

The brief fact of the case of the Complainant is that he was the monthly tenant in respect of one shop room having an area of 550 square feer on the ground floor of the aforesaid building at a rental of Rs.95/- per Bengali calendar month since 1970 and he was carrying on business of manufacturing of rubber goods under the name and style as AKG Product holding proper license. In the year 2002 the owners of the said property have expressed their intention to develop the property through the developer by erecting multi-storied building thereon containing of several flats, garages, shops etc. and also disclosed that they will enter with the development agreement with the developer subject to the conditions that the Complainant being the tenant shall get allotment of similar space at the ground floor of the said proposed multi-storied building either as a tenant or owner. The Complainant being agreed with such proposal gave consent to the owners along with NOC for construction of the multi-storied building and for this reason the landlord did not accept the rent from him since then. Similarly the landlords have started negotiation with other occupants and after completion of negotiation process the landlords have entered into a development agreement with the developer on 30.11.2005. The OPs being the partner firm had decided to construct G+4 storied building on the aforesaid plot and accordingly they procured sanctioned building plan from the Kolkata Municipal Corporation. Immediately after execution of such development agreement the OPs had agreed as per their discussion to allot one shop room having an area of 225 square feet in favour of the Complainant and the partners of the OP-1 for self and as constituted attorney of the landlords executed an agreement  with the Complainant to that effect in the year 2007. According to the condition of the said agreement the Complainant gave consent to the KMC for demolishing the old structure for the purpose of getting sanctioned plan. In compliance with such agreement the Complainant vacated the tenanted portion of the ground floor of the old building giving possession to the developer for staring the construction of the proposed building on the strength of building plan sanctioned by the KMC. Though the entire construction work was completed, the developer did not bother to complete the shop room of the Complainant at the ground floor of the newly constructed building and the work is still in incomplete position as the inner walls of the shop room are not yet completed. In January, 2011 the Complainant was called by the partners of the OP-developer at their office and accordingly the Complainant met with them where one of the partners gave him the proposal that if the original agreement is produced then a sketch map showing the position of his allotted shop room may be prepared. On good faith the Complainant handed over the original agreement to the said partner on 02.02.2011 and on that date the Complainant was assured him that the allocation may be completed by March, 2011 and in the meantime the sketch map along with the original agreement will be handed over to him. Thereafter the Complainant met the OP on 13.02.2011 at their office and on that date he was told by the said partnerthat it is not possible for him to hand over the said agreement on the plea that it is lying in the custody of another partner who is out of station and the same will be returned to him afterwards. But a sketch map showing the said shop room signed by one of the partners was tendered to the Complainant. Subsequently the Complainant met with the OPs on several occasion for allocating him the shop room as per the agreement and also requested for returning the said agreement, but the OPs did not pay any heed to his request. Having no other alternative the Complainant sent a notice on 17.01.2012 through his Ld. Advocate to the OPs requesting them to allot the shop room having an area of 225 square feet on the ground floor. With a similar request the Complainant met with the OPs again on 15.02.2012, but the OPs have refused to hand over the shop room to him. Being compelled the Complainant filed a case vide no-Title Suit no-43/2012 beforethe Ld. First Civil Judge (Junior Division), Sealdah for declaration and injunction by an order from alienating, transferring or disposing the Complainant’s allocated portion under agreement executed in the year 2007. On 14.07.2014 the Complainant and the OPs have filed a compromise petition before the said Court wherein the OPs have agreed to hand over the said shop room within 15 days from the date of filing the compromise petition to the Complainant and the Complainant gave consent to this agreement. Accordingly the Ld. Civil Court delivered the judgment and decreed as per joint compromise petition on 19.11.2014, but till date the OPs did not hand over the shop room measuring an area of 225 square feet to the Complainant. The Complainant sent a notice dated 26.12.2014 requesting them to allot the shop room but the said notice was returned with the endorsement as ‘Not Claimed’. The Complainant being a senior citizen is suffering from acute financial stringency as the shop room has been closed for a long period and as such he had sustained huge loss in his business. From the aforesaid conduct of the OPs it is apparent that the OPs are neglecting to allot him the said shop room as also flout the order of the Ld. Civil Court and killing time based on several pleas one after another in an illegal manner. The Complainant came to know from different sources that the OPs are trying to dispose of or transfer the shop room to other persons/third party depriving the Complainant for which he would suffer irreparable loss and injury. Due to such unfair practice of the OPs the Complainant has been suffering immense mental harassment and agony. Very recently the OP-2 had flatly refused to register the same in favour of the Complainant. The Title Execution being no-5/2019 is pending by and between the parties before the Ld. First Civil Judge (Junior Division), Sealdah. The Complainant is a very old person and his son is also an unemployed person, hence the shop room is the sole livelihood of his family. As the OPs did not take any step to redress his grievance, hence finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to hand over the shop room along with execution of the sale deed in respect of the said shop room in his favour, to pay him compensation due to harassment and mental agony.

After admission hearing of this complaint notices were issued upon the OPs. But inspite of receipt of the notices the OPs did not turn up to contest the complaint either orally or by filing written version. For this reason this Ld. Commission was pleased to pass an order on 22.03.2021 that the complaint will run exparte against all the OPs and on that date the Complainant was directed to adduce evidence on 10.05.2021 and also for exparte argument.

On 10.05.2021 the Complainant had adduced evidence on affidavit along with the written notes of argument. As the complaint is running exparte against all the OPs, we took up the complaint for final argument. The Ld. Counsel for the Complainant has advanced oral argument. Be it mentioned that along with the evidence the Complainant has filed several documents.

We have carefully perused the complaint and the documents as available in the record and heard argument advanced by the Ld. Counsel for the Complainant. It is seen by us that as the OPs did not bother to hand over him the shop room in compliance with the agreement for sale, the Complainant had approached physically before the OPs requesting them to provide him the possession of the agreed shop room along with execution of the sale deed in respect of the said shop room in his favour. Inspite of giving assurance to him, when the OPs did not abide by their commitment, not within the due period, but expiry of the due period, the Complainant being compelled to approach before the Ld. Civil Court, Sealdah by filing a case which was registered as the Title Suit no-43/2012 praying for an injunction order so that the OPs cannot alienating, transferring or disposing the Complainant’s allocated shop room under the agreement. In respect of the said Title Suit the OPs filed a compromised petition before the Ld. First Civil Judge (Junior Division) Sealdah wherein the OPs have agreed to hand over the questioned shop room to the Complainant within 15 days from the date of filing the compromise petition. The Complainant being agreed with the said petition gave consent. Accordingly the Ld. First Civil Judge (Junior Division), Sealdah was pleased to deliver the judgment and decreed as per the joint compromise petition. The said judgment was delivered on 19.11.2014. But inspite of the said order as the OPs did not hand over him the physical possession of the said shop room along with its sale deed, being frustrated with such inaction of the OPs the Complainant has approached before this Ld. Commission by filing this complaint on 24.09.2020.

In the paragraph no-24 of the petition of complaint it is mentioned by the Complainant supported by affidavit that the Title Execution case being no-T.E. 5/2019 is pending by and between the parties before the Ld. First Civil Judge (Junior Division), Sealdah. In this respect we are to say that admittedly the Complainant got decree in respect of the questioned shop room from the competent Ld. Civil Court, not only that as the present OPs did not bother to comply the said order/decree of the Ld. Civil Court the Complainant put the said order in execution before the Ld. Civil Court praying for direction upon the OPs to execute the order given by the Ld. Civil Court. The said execution case is still pending before the Ld. Civil Court and during pendency of the same the Complainant had filed this complaint before this Ld. Commission under the Consumer Protection Act, 2019, which in our view cannot be maintainable in the eye of law. The Complainant cannot get two benefits from two different Court or Commission. So as the said Execution case is pending before the competent Civil Court, this complaint is not maintainable as per provisions of Law and the Complainant is not entitled to get any order from this Ld. Commission through the present complaint.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-224/2020 is hereby dismissed exparte against the OPs being not maintainable. There is no order as to cost.

Let plain copy of this judgment be given to the parties free of cost as per provision of the CPR.