The instant complaint case has been filed by the complainants against the OPs under Section 17(1)(a)(i)  of CP Act, 19867 against the  OPs alleging deficiency in service.

The facts of the case, in brief, are that  one Bhabesh Chandra Bhattacharyya (now deceased)  was  the absolute owner of the  piece and parcel of land measuring more or less 5 cottahas together with all easement rights   appertaining  thereto, situated  at Mouja – Sodepur, J.L.No. 8, R.S.   No. 45, Touji No. 172,  R.S Dag No. 957, under R.S. Khatian No. 337, under Sodepur Development Scheme, Block No. A, Plot No. 171, within the jurisdiction of Panihati Municipality,  Ward No. 31 of H.B Town Road No. 5, under P.S Khardah, District North 24 Parganas, by virtue of registered Deed of Transfer duly registered at A.D.S.R.O.Barrackpore on 15.10.1969  and recorded in Book No. 1 Volume No. 63, Pages from 224 to 228 being No. 3809  for the year 1969, free from all sorts of encumbrances….

Having acquired  the aforesaid plot of land, said Bhabesh Chandra Bhattacharyya got his name mutated  in the assessment register of the Panihati Municipalityand constructed  pucca brick complete  residential building over the said  plot of land and  paid taxes to the  authority concerned regularly during his lifetime. While  in the khas physical possession over the said property, said Bhabesh Chandra Bhattacharyya executed  a deed of family settlement in favour of his son Sujit Kumar Bhattacharya  in respect of the aforesaid property under the terms and conditions  contained in the said family settlement deed and  the  said deed was registered before the office of ADSR of Barrackpore on 05.04.1982. Said Bhabesh Chandra Bhattacharyya died intestate on 25.08.1986 and after  his demise, his son Sujit  Kumar Bhattacharyya became the absolute owner  in respect of the plotof the Bastu land. Having acquired  the Schedule A property   through the family settlement, said  Sujit Kumar Bhattacharye got his name mutated in the assessment  register of the Panihati Municipality and was paying the taxes regularly. Said Sujit Kumar Bhattacharyya with  a view to develop  a multi-storied building  over the  Schedule A   property  came to be acquainted with the  OPs and the OP NO. 1 being the developing firm represented by its partners, OPs No. 2 & 3.OPs No. 2 & 3approached and expressed their intention to develop the Schedule A property. Accordingly, the  building plan was approved and  sanctioned by Panihati Municipality. Said Sujit Kumar Bhattacharyya being the land owner enteredinto a registered development agreement with the OPs on 01.12.2014 in respect of the property  mentioned in the Schedule A of the petition of complaint. By the said agreement, OPs agreed to handover the  owner’s allocations to said Sujit  Kumar Bhattacharyya to the extent of the entire first  floor and two brick-built garage measuring  200 sq. ft. super  built up area on  front  sideof the building  at ground floor together  with undivided proportionate share or interest in the land including common area, water reservoir, septic tank, drain  and other amenities attached to the  proposed building  free of cost. OPs also agreed to pay a total consideration of Rs.24,00,000/- to said  Sri Sujit  Kumar Bhattacharyya, in the following manner:

1. Rs.3,00,000/- at the time of execution of the Development Agreement,
2. Rs.7,00,000/- within  1 (one)   month after obtaining of the sanctioned building plan.
3. Rs.7,00,000/- within 1 (one) year after obtaining of the sanctioned building plan.
4. Rs.7,00,000/- at the time of taking physical possession of the owner’s  allocation.  

By the said agreement, the OPs also agreed to provide alternative accommodation  to said Sri. Sujit Kumar Bhattacharyya at the cost of the OPs until delivery of physical possession  of the owner’s allocation on completion of associated facilities for habitation. It was also agreed that the OPs will complete the proposed  construction within 24 months from the date of sanctioning of building plan from the Panihati Municipality. Said Sujit Kumar Bhattacharyya  also executed a registered Development Power of Attorney in favour of OPs No. 2 & 3 on  01.12.2014.

Thereafter, the OPs entered into a Supplementary Agreement  with Sri Sujit Kumar Bhattacharyya on 23.12.2015 in continuation with original development agreement dated 01.12.2014 by which it was mutually agreed between the parties that the  OPs will provide a self-contained residential flat measuring moreor less 400 sq. ft.  super built up area at ground floor  of the  proposed  multi-storied building in placeof owner’s  allocated portion of two number of Garage measuring  more or less 400 sq. ft. super built up area  shown in the registered  Development Agreement.

As per terms of the agreement, said Sri Sujit Kumar Bhattacharya was accommodated in rented  premises owned  by Sri  Bimal Chandra Das by the OPs at a monthly rent of Rs.12,000/- permonth and the said rent was duly paid by theOPs month by month by issuing  cheque to  said Bimal Chandra Das.

The OPs thereafter, as per termsof the agreement dated 01.12.2014 paid Rs.17,00,000/- to saidSri Sujit Kumar Bhattacharyya.

The developers/OPs then obtained sanctioned  plan from the  Panihati Municipality for the said proposed construction of G+4 storied building on 02.02.2016 and started construction in the schedule  property of Sri Sujit Kumar Bhattacharya. Thereafter,  said Sujit Kumar Bhattacharyya suddenly died on 20^th day of October 2017 at his residence at A/171, H.B Town, Road No. 5, Panihati , P.O. Sodepur, P.S.  Khardah, Kolkata – 700110, District North 24 Parganas.  Said Sujit Kumar Bhattacharyya during  his lifetime executed his last Will and Testament on 22^nd August, 2017 at his residence and the same was registered  on 24^th August, 2017 in the office of A.D.S.R. Sodepur and recorded in Book-III, Volume No. 1524-2017, page from 1046 to 1062, being   No. 152400082 for the  year 2017 and in  the  said Will  Sri Sujit Kumar Bhattacharyya appointed  the erstwhile complaints No. 1 & 2 to be the  joint executors to  take Probate of his Will dated 22.08.2017 from the competent court of law without being  required to furnish any security. In  the said Will, the testator had made his younger daughter Smt. Sugandha Chakrabarti/the complainant No. 3 to be the beneficiary of all his estates as detailed in the said Will.

After the death of Sri Sujit Kumar Bhattacharyya, the complainant Nos. 1 & 2 filed an application for granting of    Probate of the said Will and Testament  of Sri Sujit Kumar Bhattacharyya before the  Ld. Court of  District Delegate at  Barrackpore  being Miscellaneous case No. 85 of 2018 (Probate). According to the provision of Section  211 of the Indian Succession Act, 1925, after the death of  Sri Sujit Kumar Bhattacharyya, the complainants No. 1 & 2 being the  joint executors of the last Will and Testament  dated 22.08.2017 being the lawful  persons took  charge of  all the property of the said deceased Sri Sujit Kumar Bhattacharyya including the scheduled property.  Erstwhile Complainants No. 1 & 2 then  contacted with the Ld. Advocate and asked to  immediately handover the  owner’s allocation as per agreement dated 01.12.2014 and 23.12.2015 to the  erstwhile complainants No. 1 & 2 along with the possession certificate  and also to pay the balance amount of Rs.7,00,000/- to them being the  sole executors of the Will dated 22.08.2017 within 15 days.The OP remained silent over the issue. Though the OPs are responsible to hand over the possession of the owner’s allocation within 24 months  but till date OPs have not handed over the peaceful possession of the owner’s allocation in spite of  the completion of  such period  and not even paid the  rest amount of Rs.7,00,000/- as per agreement.  Thereafter, the   complainant No. 3 received a letter  dated 25.04.2018 from  the OPs whereby the OPs  requested her to take possession of the owner’s allocation  jointly  along with Sri Durbar Ain (son of pre-deceased elder daughter of Sujit Kumar Bhattacharyya and  Prerona Ain (daughter of pre-deceased elder daughter  Sujit Kumar Bhattacharyya). On receipt of such letter dated  25.04.2018, the complainant   No. 3 replied by issuing the letter  dated  01.05.2018 to the OPs requesting them to handover the owner’s allocation to the complainants No. 1 & 2 being the executors  but till date neither the OPs handed over the possession of the owner’s allocation nor  did they reply to such letter. Thereafter, erstwhile  complainants No. 1 & 2 having left with no choice   have been compelled to file the present complaint for the benefit of the beneficiary of  the said Will and Testament dated 22.08.2017. After the death of Sri Sujit Kumar Bhattacharyya, his  entire belongings are lying in the rented accommodation and the OPs were paying  monthly rent of the said premises as per contract  month by month but  suddenly the  OPs  stopped paying rent  from the  month of May  2018 in complete disobedience of the terms of contract.

The proceedings  of Miscellaneous case No. 85 of 2018 (Probate) after becoming contentious  was transferred to the Ld. Court of District Judge at Barasat vide order No. 3 dated 27.09.2018  by the transferee court and the said proceedings was renumbered as O.S No. 71 of 2017 by the Ld. Court of District Judge at Barasat and transferred to the Additional District Judge, 7^th Court at Barasat vide order  No. 5 dated 15.01.2019.On receipt of such Probate Proceedings, the Ld. Additional District Judge,   7^th Court at Barasat after being specified  with  all formalities, allowed the O.S No. 71 of 2018 ex parte against the respondents  and  granted Probate of the last Will and Testament executed  by  Sri Sujit Kumar Bhattacharyya on 22.08.2017 (registered on 24.08.2017) in favour of   complainants No.1 & 2 vide order  No. 16 dated 15.02.2020.  Accordingly, certificate of Probate  was issued on 06.07.2020 in favour of complainants No. 1 & 2.

With the  grant of Probate of the last Will and Testament  dated 22.08.2017  all the estates of the  deceased  Sujit Kumar Bhattacharyya devolved upon the sole beneficiary i.e.,  the complainant No. 3, namely  Smt. Sugandha Chakrabarti,  nee Bhattacharyya, wife of Sri Subham Chakrabarti and daughter of late  Sujit Kumar Bhattacharyya. Since the   OPs have not followed the terms of agreement,  finding no other  alternatives, the instant complaint has been filed praying for  direction upon OPs to handover the possession of the  Schedule ‘B’ owner’s allocation in complete and habitable condition including Rs.7,00,000/- being balance  amount  to the complainant No. 3.  The complainant No. 3 has prayed for another direction  upon OPs jointly and severally to pay   the rent of  accommodation  charge  @ Rs.12,000/- per month from month of May, 2018 to September, 2020 along with handing over the  copy of the completion certificate and sum of Rs.2,00,000/- for damage towards harassment and mental  and physical pain and anguishment and Rs.2,00,000/- as compensation for deficiency, negligence and  for adopting unfair trade practice and Rs.1,50,000/- for litigation cost.

All the OPs appeared before this Commission and contested the case by filing written version. In their written version, OPs denied  all material allegations inter alia stated that the statement of complaint  are  inconsistent. The OPs have stated that the erstwhile  complainantsNo. 1 & 2 have suppressed to all material facts and approached with unclean hands. They are  trying to mislead this Commission  by presenting the concocted stories. Hence, the present   complaint is not maintainable and liable to be dismissed on this ground. All the statements are  cunninglymade in  the complaint and the complainants to be put strict proof thereof. The whole complaint is false, frivolous and  vexatious and  has been filed with  mala fide intention  and for harassing  the OPs. The complaint is not maintainable either in law or on facts  and is liable to be dismissed in limine. No cause of action  against the OPs  has been mentioned in the petition of complaint and the present complaint is devoid of any merit and the  averments made in the complaint  are baseless and are made with the intention  to defame the OPs and for extorting  the money in illegal manner.

The OPs have also  stated in their written  version  that it is true that OP No. 1  entered into a registered  development agreement with Sri Sujit Kumar Bhattacharyya (since deceased) on 01.12.2014 and subsequently  said Sri Sujit Kumar Bhattacharyya (since deceased)  executed  a  power of attorney in favour of  OPs No. 2 & 3. The OPs never failed to discharge their contractual obligation at any point of time. Said Sujit Kumar Bhattacharyya died on 20.10.2017 and thereafter his legal heirsand successors including the  widow of Sujit Kumar Bhattacharyya (since deceased) stepped into shows of Sujit Kumar Bhattacharyya (since deceased). Said  widow of sujit Kumar Bhattacharyya (since deceased)   breathed  her last with a very short span  of time on 12.11.2017. The remaining legal heirs and successors of  Sujit Kumar Bhattacharyya  are  Durbar Ain,   Prerona Ain and Sugandha Chakrabarti executed a power of attorney  in favour of OPs NO. 2 & 3.  The OPs never  failed to discharge their contractual obligations at any point of time with the said legal heirs  of  said Sujit Kumar Bhattacharyya in terms of the power of attorney dated 20.12.2017. On 25.04.2018, the OPs requested the  legal heirs of said Sujit Kumar  Bhattacharyya  to take delivery of the possession   of the flats and garages and  also to  collect  a sum of Rs.7,00,000/- in terms of the agreement.

The relief claimed under the present complaint  is not maintainable against the OPs. There is no deficiency in service on the part of the OPs No. 1 & 2 and the complainants are not consumers. Hence, the OPs are not liable  for any relief as have been prayed  by the complainants as alleged in the complaint. Therefore, OPshave prayed for dismissal of the complaint against the OPs with exemplary cost to be  awarded  to OPs.

It is pertinent to mention  here that initially the complaint has been filed by erstwhile complainants No. 1 & 2,  who were  the Executors. After filing the complaint  the OPs filed their written version. After closing  of evidence on 11.11.2020 the erstwhile complainants being complainants no. 1 & 2 filed an interlocutory application being No. IA/377/2020 praying for addition of party as complainant no.3.  The prayer for amendment was allowed vide Order No.13 dated 07.02.2022.  Thereafter, the erstwhile complainants no.1 & 2 and the complainant no.3 filed another interlocutory application being No. IA/1068/2022 field on 28.12.2022 praying for expunging the name of complainants no. 1 & 2.  The prayer for expunging names of complainants no. 1 & 2 was allowed and the names of complainants no.1 & 2 were expunged from the cause title vide Order no.16 dated 11.01.2023. 

Ld. Advocate for the complainant No. 3 has submitted that after declaration of the Probate, the complainant No. 3 is the only complainant of the present case.  Ld. Advocate  for  the complainant No. 3  has further submitted that as per agreement dated 01.12.2014 and as per declaration of the Probate the  complainant No. 3 has the only right to get the owner’s allocation  as per  agreement executed   by and between  Sujit Kumar Bhattacharyya (since deceased)  and the OPs. The OPs not only failed to provide  the owner’s allocation they have also failed to  pay Rs.7,00,000/- as balance  amount  to  complainant No. 3  as per agreement and  also failed topay the rent of accommodation  charge @ Rs.12,000/-  per month from  May, 2018 to September 2020. Due to the act of the OPs, the complainant No. 3 is suffering  day by day.

With the grant of Probate of the last Will and Testament  dated 22.08.2017 (registered on 24.08.2017) all the estates  of the  deceased Sujit Kumar Bhattacharyya devolved upon the sole beneficiary i.e., the complainant No. 3 namely, Smt. Sugandha Chakrabarti . Since the services rendered by the OPs are not satisfactory and suffers from deficiency, the complainant No. 3 is  entitled to relief as sought for. Hence, he  has submitted to pass order in favour of Complainant No.  3 as per amended version of petition of complaint.

Ld. Advocate for the complainant No.  3 has also submitted that the complainants No. 1 &2  are the  consumers as legal representative. He has further argued that  Sujit Kumar Bhattacharyya (since deceased), who entered into   a development agreement with the OPs on 01.12.2014 and supplementary agreement on 23.12.2015 during his lifetime executed  last Will and Testament on 22.08.2017 and therefore, after death of said Sujit Kumar Bhattacharyya (since deceased) the  estate of  Sujit Kumar Bhattacharyya (since deceased) devolved upon the  appointed joint  executors of the will dated 22.08.2017 in accordance with the  provision of Section 211 of Indian Succession Act, 1925. After grant of Probate the erstwhile complainants No. 1 & 2 by way of amendment impleaded   the complainant No. 3, who  is the beneficiary of the Will dated 22.08.2017 which can be evident from the order dated 07.02.2022 in IA/377/2020.

In support of his argument, the Ld. Advocate has cited the judgment passed by  the Hon’ble National Commission  which was reported in 2022 (1)  CPR 89 [Relied on  2004 (7) SCC 505]

Secondly, he has argued that the act and conduct of the OPs clearly goes to suggest that there is deliberate and intentional deficiency in service from the end of the OPs. In   this regard, the complainants relied upon the judgment of the Hon’ble National Commission which was  reportedin 2022 (1) CPR  (8) [Para  9 referred] [Relied on 2004 (7) SCC 505] and [2005 (9) SCC 375].

Thirdly, the Ld. Advocate for the complainant No. 3 has argued that as per agreement dated 01.12.2014, the OPs are under  obligation to provide alternative accommodation to the landowner  until delivery of physical possession of the   owner’s allocated portion and accordingly, the landowner has been accommodated  in  rented owned  by   Sri Bimal Chandra Das  by the OPs at monthly rent of Rs.12,000/-.The OPs  have paid the rent till April 2018  but from May 2018 to September 2020, the OPs have not paid any amount towards rent. The Ld. Advocate for the complainant No. 3 has prayed for rent amount for 29  months only from  May 2018 to September 2020 since  the complainant No. 3 has  vacated  the tenanted premises on 06.10.2020. The Ld. Advocate for  the complainant No. 3 has  alsosubmitted that  complainant No. 3 is  entitled  to all the reliefs including  compensation, damage, litigation etc. as detailed in  the prayer  of the  amended petition of complaint filed  on 06.05.2022.

Ld. Advocate for the OPs has submitted that the case is not maintainable. Since the complainants No. 1 & 2, in the instant case, are  neither the landowners  with whom, the development agreement was   executed  nor they are  legal heirs of land-owners  Sujit Kumar Bhattacharyya. The complainants are not the authorized representative of the landowner Sujit Kumar Bhattacharyya (since deceased).  The complainants are not the power of attorney holder of the landowner. Being Executors of Will, the erstwhile complainants No. 1 & 2 are claiming themselves as  consumers. The Will is  nothing but a scrap of paper until and unless Probate is granted  by the  concerned District delegate.  Only after  granting of probate by the  District delegate the complaint case  can be filed by the Complainants. The Will was executed not   in  favour of the  legal heirs of Sujit Kumar Bhattacharyya (since deceased) but in favour of  third party  i.e., the near relatives of landowners so it is quite difficult to ascertain  the legality of the will or  the authority to accept the  landowners allocation by virtue of the  development agreement. Section 213 of  Indian Succession Act,   has been clearly stated as follows: 

Section 213 of Indian Succession Act, 1925 it has been clearly stated as follows :

“Section 213 : (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed ………” . Ld. Advocatefor the OPs has submitted that the complainant cannot be treated as a consumer by virtue of the provisions laid down under the statute itself.

It was mentioned earlier that the  instant  complaint  was initially  filed by the complainants No. 1 & 2.  Therefore, the  main objection  of the OPs is  that whether the complainants No.  1 & 2 are the  consumers and whether they can file a complaint

The judgments relied upon by the complainants in the issue referred above is otherwise and in the  different aspect and  the said judgment  is not applicable in the present case. In  the case of Will the  principal  had already expired and as such after death  of the principal the executor of the Will have  the authority of vesting of  the property of deceased  but cannot be  empowered  to represent the case on behalf of the deceased principal. The complaint  isprematured in nature since the Probate has been granted in the year 2020 by the District Delegate but  the present  case was filed in the year 2018. So the premature case is not maintainable in the eye of law.  No  option was  available  with the OPs to handover the possession to the executors or to  the legatee by   the strength of a Will in absence of the probate since the OPs  have no authority or the OPs cannot  come to the conclusion as regard the executor or the legatee by strength of a Will which is nothing but a  scrap of paper   until and unless the Will is being granted  probate by the District delegate. In the year 2020, the probate was granted  and the OPs agreed to handover the physical  possession of the owner’s allocation and in favour of the probate holder in accordance with  law.  So there is no deficiency on the part of the OPs.

The alternative  accommodation  charges in  question as demanded  by the  executor on behalf of the principal is not tenable  in the  eye of law and the OPs are not liable to pay the charges as claimed by the complainant No. 3. Since theOPs  only promised to the landowner  for payment of alternative accommodation charges for his residential purpose only and did  not promise to pay  such amount to any legal heirs or the executor/legatee and therefore,  in absence of any express promise, to pay alternative  accommodation charges to the executor or to the legatee there is no liability on the part of the  OPs to pay alternative accommodation charges as claimed. Liability  to pay alternative accommodation charges has been ceased on the date of  death of the land-owner with whom the development agreement was executed and who executed the power of attorney  in favourof the OPs. On 25.04.2018OPs  requested the  legal heirs of the Sujit Kumar Bhattacharyya (since deceased) to take  the delivery of possession of the flats and garages and also to collect a sum of Rs.7,00,000/- in terms of the agreement. Therefore, there is no  deficiency in service on the part of the OPs and therefore, the OPs have  most respectfully   prayed that in the facts and circumstances to dismiss  the complaint against the OPs with exemplary cost awarded to OPs.

Upon hearing the parties and on  perusal of  entire material on record, it is admitted fact that one Bhabesh Chandra Bhattacharya (now deceased)  was  the absolute owner of the  land in question.  It is also admittedfact that after expiry of said Bhabesh Chandra Bhattacharyya on 25.08.1986 his son Sujit Kumar Bhattacharyya (since deceased) became the absolute owner in respect of the plot of the  bastu land in question. Being acquired  of the Schedule A property  through family settlement, said Sujit Kumar Bhattacharyya gothis name  mutated  in assessment register of the concerned municipality. In his lifetime, said  Sujit Kumar Bhattacharyya (since deceased)  being the land-owner  entered into a registered development agreement with the OPs on 01.12.2014 in  respect of the property mentioned in the Schedule A of the petition of complaint under certain terms and conditions. As per agreement it was agreed that  at the time of construction, OPs will arrange alternative  accommodation to said  Sujit Kumar Bhattacharyya until the delivery of  possession of the owner’s allocation  in complete and habitable condition. It was also agreed that the OPs will complete the proposed construction within 24 months from the date of sanction of building plan from the Panihati Municipality. 

As  per agreement dated 01.12.2014 it was agreed that entire  first floor and two brick built garage measuring 200 sq. ft. super built up area  each  on the ground floor with undivided proportionate share of the interest in the land will be provided as owner’s allocation. Thereafter, OPs entered into a supplementary agreement with   Sri. Sujit Kumar Bhattacharyya (since deceased) on 23.12.2015  in continuation with  original  development agreement dated 01.12.2014 by which it was agreed that OPs would provide a self-contained  residential flat measuring more orless 400 sq. ft. super built up area on the ground  floor of the proposed  multi-storied building in place of owner’s allocated portion of two number of garages measuring more or less 400 sq. ft. super built up area.

It is also admitted  fact that  said Sri Sujit Kumar Bhattacharyya (since deceased)  was entered  in  a rented premises  owned by Sri Bimal Chandra Das and for that rented house  OPs  paid the rent amount  @  Rs.12,000/- per month.  The OPs paid the rent amount month by month by  issuing cheque to  said Bimal Chandra  Das. It is also admitted  fact that as per agreement  dated 01.12.2014 OPs paid an amount of Rs.17,00,000/- to said Sujit Kumar  Bhattacharyya. The  OPs obtained the sanctioned plan  from the Panihati Municipality on 02.12.2016 and started  construction in the scheduled property of Sri Sujit KumarBhattacharyya (since deceased). Thereafter,  Sujit Kumar Bhattacharyya (since deceased) suddenly died  on 20.10.2017 and after the demise of said Sujit Kumar Bhattacharyya, his widow died on 12.11.2017. Theelder sister of Sujit  Kumar Bhattacharyya (since deceased)  already died  earlier, therefore, after  expiry of said Sujit Kumar Bhattacharyya (since deceased)   and his wife, the son   and daughter of   Sujit Kumar Bhattacharyya (since deceased)  namely Durbar Ain and PreronaAin along with  younger daughter SugandhaChakrabarti, were became the legal heirs of said SujitKumar Bhattacharyya. Acordingly,  they gave the power of attorney to the present OPs.

Initially, the complaint case was filed  by Sri Ashok @ Ashok Kumar Das and Dr. Saty Narayan Chakrabarti being the executors of  Will granted by Sujit  Kumar Bhattacharyya (since deceased). The  main objection  raised in the written version by the OPs is that the executors  cannot file the complaint case since the executors are not the consumers.  The executors can file the complaint case since have the right  on behalf of the legal heirs,  whose name is mentioned  in the Will. By filing the IA  Application  being No. IA/377/2020, complainant has prayed for  addition of party as complainant No. 3. That prayer was allowed by this Commission and the order was not challenged  before any  upper Commission by the OPs. Thereafter, the complainant has  filed another Interlocutory Application being No. IA/1068/2022 praying for  deletion of the names of complainant No. 1 and Complainant No. 2/executors of the Will. That application was  already allowed  by this Commission on 11.01.2023. Accordingly,  the names of complainants  No. 1 & 2 were expunged from the cause title and only  the complainant No. 3 is the complainant of the present case. That  order of both the IAs  were not  challenged by the OPs before any upper Commission. Therefore,  the argument on behalf of  OPs that executors cannot file the complaint case cannot be considered after amendment of complaint petition.

The another plea taken by the OPs that   on 25.04.2018 OPs  requested the legal heirs of the Sujit Kumar Bhattacharyya to take the delivery of possession of the flats and garages and also to collect  a sum of Rs.7,00,000/- in terms of the agreement. The  Ld. Advocate on behalf of the OPs has argued that they wereready to deliver the  possession  of the flat to the legal  heirs of the deceased Sujit Kumar Bhattacharyya but the legal heirs of Sujit Kumar Bhattacharya were in dispute and, therefore, they could not  deliver the possession of the flats and the balance amount of  Rs.7,00,000/- as per agreement.  As per agreement, it was agreed  by the parties that the  multi-storied building would be completed within 24 months from the date of obtaining sanctioned plan from the concerned  municipal authority.  From the record,  it appears  that the sanction plan was obtained  by the OPs on  02.12.2016, the plea taken  by the OPs that on 25.04.2018, OPs requested the legal heirs of Sujit Kumar  Bhattacharyya (since deceased), to take  delivery of the  possession of the flats and to collect  Rs.7,00,000/-.As per development agreement  the sanction plan was obtained by  the OPs on 21.12.2016 and the possession letter  was given by the OPs to the legal heirs of the deceased  landowner on 25.04.2018. Therefore,  the OPs have offered the physical possession of the owner’s  allocation to the legal heirs of the deceased  landowner  within two years and two months from the date of sanctioned planas per development agreement.It is evident  from running Page 103 of   amended version of petition of complaint which was filed on 11.01.2023 before this Commission.

Therefore,  we are of  the view that the OPs  have offered the  physical possession of the owner’s allocation,more or less within the stipulated time. So there is no latcheson the part of the OPs in respect of delivery of possession of the owner’s allocation.  The legal heirs of Sujit Kumar Bhattacyaryya could not take the possession due to their family dispute and since  the Probate was not granted.

The complainant No. 3 has annexed  all the necessary documents  towards declaration of Probate and acceptance  of  vacant  possession by Bimal Chandra Das  who was the landlord for the rented accommodation of Sujit Kumar Bhattacharyya and after the  expiry of Sujit Kumar Bhattacharyya, the rented accommodation was taken   by the younger daughter  of late Sujit Kumar Bhattacharyya. The complainant has annexed the copy of Acceptance of Vacant  Possession (Running Page 149) signed by Bimal Chandra Das/owner of the premises who  gave the rent,  wherefrom it appears  that after death of said  Sujit Kumar Bhattacharyya, on 20.07.2017 his belongings lying in the   tenanted premises  could not be shifted  elsewhere  due to  pending litigation for  granting  of probate applied  by the executors (complainant No. 1 and complainant No. 2) of the last Will and  testament of Sujit  Kumar Bhattacharyya (since deceased) dated 22.08.2017 (registered  on 24.08.2017). Said joint executors namely Ashok Kumar Das and Satyanarayan Chakrabarti obtained probate of the said Will dated 22.08.2017 (registered on 24.08.2017) in their name, from the Ld. Court of  7^thAdditional District Judge at Barasat in O.S No. 71 of 2018 on 15.02.2020. The certificate of probate  was issued on 06.07.2020. After  obtainment of such probate, the said executors have  discharged  their responsibility in favour of the  sole beneficiary of the Will dated 22.08.2017 (registered on 24.08.2017), namely,  Smt. SugandhaChakrabarti/complainant No. 3  who is acquired all  rents and  dues  against such tenancy till the month  of September 2020 and  delivered the vacant  possession of the  tenanted premises on 06.10.2020.

Now the question is whether the complainant no.3 is entitled to relief as claimed for.  As per above discussion, we have already hold that OPs have offered the possession of the owners’ allocation to the legal heirs of the landlord/Sujit Kumar Bhattacharyya on 25.04.2018 which is more or less within two years two months after getting the sanctioned plan.  When the OPs offered to deliver the physical possession of owner’s allocation to the legal heirs and successors of the land lord, complainant no.3 replied the letter of the OPs and advised to handover the possession of the owners allocationimmediately to the joint executors i.e. erstwhile complainants No. 1 & 2.  Since, the Probate was not granted, the OPs could not hand over owners’ allocation to the executors.  After granting of Probate since the instant case is pending, the delivery of physical possession of owner’s allocation cannot be materialized.  In course of argument, Ld. Advocate for the OPs has fairly submitted before this Commission that they could not deliver the owner’s allocation due to want of declaration of probate and the pending litigation.

Another point to be considered is whether the complainant no.3 is entitled to get rent @ Rs.12,000/- per month from May-2018 till September-2020 i.e. Rs.3,48,000/- for 29 months.  Form the document “Acceptance of the Vacant Possession”, annexed with the complaint petition, it appears that the belongings of Late Sujit Kumar Bhattacharyya were lying in the tenanted premises.  As per agreement, the OPs are not bound to give any rent to keep the belongings of the original landowner.  No document comes forthwith which proves that the complainant no.3 was residing in the rented premises in question. Moreover, on 25.04.2018 the OPs offered the legal heirs of Sujit Kumar Bhattacharyya to take the possession of schedule property and only after offering the owner’s allocation the OPs have stopped to pay rent from May’2018. During lifetime of Sujit Kumar Bhattacharyya and thereafter till the date of offering owner’s allocation, OPs paid rent regularly without fail. Therefore, we find no deficiency on the part of OPs for non-payment of rent since May’2018.  Therefore, the complainant no.3 is not entitled to get any rent for keeping belongings of his late father in the rented premises after April’2018.

As per above discussion, we hold that complainant no.3 is only entitled to get the owner’s allocation and the balance amount of Rs.7,00,000/- as per Agreement dated 01.12.2014 and Supplementary Agreement dated 23.12.2015. Since the OPs offered the owner’s allocation on 25.04.2018, i.e. within two years and two months from the date of getting sanctioned plan  and the rent was paid by the OPs up to April’2018, we are not inclined to award any compensation as prayed for.

As a result, the complaint case succeeds.

         Hence,

                   it is

                                              O R D E R E D

That the complaint case being no. CC/ 459/ 2018 be and the same is allowed on contest against the OPs with cost.

The OPs are jointly directed to handover the possession of owner’s allocation (Schedule ‘B’) in complete and habitable condition along with copy of completion certificate  to complainant No. 3 within 60 (sixty)  days from this day.

The OPs are also jointly directed to pay  the balance consideration of Rs. 7,00,000/- (Rupees seven Lakhs) only to complainant No. 3 within the aforesaid stipulated period. 

The OPs.are further directed to pay litigation cost of Rs. 10,000/- (Rupess Ten thousand) only to complainant No. 3.   

If the OPs.fail to comply with the aforesaid order within the aforesaid stipulated period then the complainant no. 3 is at liberty to put the decree into execution.

The complaint case is disposed of accordingly.