Order-15.
Date-22/05/2015.
Complainant Pannalal Golchha by filing this complaint has submitted that Mr. Jimmy Shapur Ardeshpur was a monthly tenant under Smt. Bhagwati Devi Dalmia in respect of Schedule-B property since 07.05.1990 paying monthly rent of Rs. 450/- only according to English Calender month and in terms of the Agreement dated 11.02.1997 Smt.Bhagwati Devi Dalmia being the owners entered into an Agreement for Sale with Jimmy Shapur Ardeshpur in respect of a flat on the mezzanine floor measuring about 450 sq. ft. super built-up area at Premises No. 13, Royd Street, P.S.- Park Street, Kolkata – 700016 and Jimmy Shapur Ardeshpur paid to Smt. Bhagwati Devi Dalmia the full price as agreed and is in possession of the aforesaid Schedule-B and C flats but no Deed of Conveyance has been executed and registered in the name of Jimmy Shapur Ardeshpur which Smt. Bhagwati Devi Dalmia confirmed by joining to that agreement vide Agreement dated 16.04.1997.
That in terms of Agreement dated 16.04.1997 made between the Smt. Bhagwati Devi Dalmia and Jimmy Shapur Ardeshpur entered into an Agreement with the complainant to sell two flats one flat on the northern side of the first floor, measuring about 500o sq. ft. i.e. Schedule- B property and another flat on the mezzanine floor measuring about 450 sq. ft. super built up area i.e. Schedule- C property for the price of Rs. 4,03,750/- and the entire consideration amount has already been paid by the complainant to the Jimmy Shapur Ardeshpur and nothing is due and payable by the complainant.
That after execution of the said Agreement, Smt. Bhagwati Devi Dalmia died interstate living behind the op as her legal heir under the Hindu Successions Act and op has been stepped into the shoes of Smt. Bhagwati Devi Dalmia and the said Agreement dated 16.04.1997 is binding upon the parties. In terms of the Agreement dated 16.04.1997 complainant paid the full consideration money on 15.04.1997 vide order No. 770547 issued by Syndicate Bank, Kolkata – 700001 for the sum of Rs. 4,03,750/- against the receipt granted by the said Jimmy Shapur Ardeshpur.
On payment of full consideration money Jimmy Shapur Ardeshpur as well as op delivered possession in respect of Schedule-B and C properties at Premises No.13, Royd Street, Kolkata to the complainant and since then the complainant is in possession in respect of the aforesaid flats which is more fully described in the Schedule- B and C.
That in spite of repeated request and demand made by the complainant, the op did not execute and register the Deed of Conveyance in respect of the Schedule – B and C in favour of the complainant even after receipt of full consideration amount as well as after delivery of possession of the schedule property and on 28.07.2014 finding no other alternative complainant through his Ld. Advocate issued a notice to the op asking the op to execute and register the Deed of Conveyance in favour of the complainant within 15 days from the date of receipt failing which complainant shall be compelled to take appropriate legal action against the op for execution and registration of the Deed of Conveyance in respect of the schedule properties. But the said letter dated 28.07.2014 was returned to the op under Regd. Post with A/D at his correct address but the same was returned with postal endorsement “Addressee Moved/Left/not known”. But the address was rightly noted and complainant has always ready and willing to perform his obligation. But ops are reluctant to execute the same for which the present complaint is filed praying for directing the op for execution and registration of the Deed and other relief.
Notices were duly sent to the op but it was returned unserved with a note that “no such persons resides there and they are not available” for which wide publication was made on 26.02.2013 in the Telegraph Newspaper and it was treated as good service but even after that op did not turn up for which the case is heard exparte.
So, in the above circumstances, we shall have to decide this complaint on the basis of material as produced by the complainant and also relying upon the evidence as made by the complainant.
Decision with reasons
On proper consideration of the complaint and also the fact as alleged by the complainant, it is found that Bhagwati Devi Dalmia is the absolute owner in respect of the five storied building used together with piece and parcel of land situated at Holding No. 97, Blolck No. IV in respect of which being Premises No. 13 (formerly No. 20) of Royd Street in the Southern Division of the town of Kolkata.
It is also admitted fact that in terms of Agreement dated 15.01.1990 Bhagwati Devi Dalmia as owner entered into an Agreement for Sale with Jimmy Shapur Ardeshpur in respect of a flat on the Northern side of the 1st Floor, measuring 500 sq. ft. at Premises No.13, Royd street, Kolkata – 16 which is morefully described in the Schedule-B of the complaint and total sum of consideration of Rs. 80,000/-. It is also admitted by the complainant that Jimmy Shapur Ardeshpur was a monthly tenant of Smt. Bhagwati Devi Dalmia in respect of Schedule-B property since 07.05.1990 paying a monthly rent of Rs. 450/- only according to English Calender month and in terms of the Agreement dated 11.02.1997 Smt. Bhagwati Devi Dalmia being the owners entered into an Agreement for Sale with Jimmy Shapur Ardeshpur in respect of a flat on the mezzanine floor measuring about 450 sq. ft. super built-up area at Premises No. 13, Royd Street, and that property is described in the Schedule – C of the complaint.
It is specifically mentioned in the complaint that Jimmy Shapur Ardeshpur paid Smt. Bhagwati Devi Dalmia the full price as agreed and were in possession of the aforesaid schedule-B & C flats that are described. But no Deed of Conveyance has been registered in the name of Jimmy Shapur Ardeshpur though Smt. Bhagwati Devi Dalmia confirmed by joining to that Agreement vide Agreement dated 16.04.1997.
Further it is alleged that in terms of the Agreement dated 16.04.1997 made between Smt. Bhagwati Devi Dalmia and Jimmy Shapur Ardeshpur entered into an agreement with the complainant to sell two flats – one flat on the norther side of the first floor, measuring about 500 sq. ft. i.e. Schedule – B property and another flat on the mezzanine floor measuring about 450 sq. ft. super built up area i.e. Schedule- c property at or for the price of 4,03,750/- and the entire consideration amount has already been paid by the complainant to Jimmy Shapur Ardeshpur and nothing is due and payable by the complainant.
No doubt it is further alleged that after execution of the said Agreement, Smt. Bhagwati Devi Dalmia died intestate living behind the op as her legal heir under Hindu Successions Act. So the Agreement is binding upon both the parites. So, the complainant Jimmy Shapur Ardeshpur and Bhagwati Devi Dalmia since deceased and its present son of present op and in terms of Agreement dated 16.04.1997, complainant has paid full consideration money on 15.04.1997 through Syndicate Bank and full payment of consideration money, possession was delivered in respect of Schedule – B and C properties for Premises No. 13, Royd Street, to the complainant since complainant is in a possession in respect of the flat which is more fully described in the Schedule – B & C.
In spite of repeated request and demand made by the complainant to the op, op did not execute and register the Deed of Conveyance in respect of the Schedule – B & C properties for which complainant appeared before this Forum for redressal.
No doubt notice was served upon the op and fact remains that it was not served as he was not there and further fact is that it was subsequently served by the wide publication but none appeared on behalf of the op. But after considering the materials on record, it is found that Jimmy Shapur Ardeshpur was a tenant under Bhagwati Devi Dalmia in respect of Premises No. 13 (formerly 20) Royd Street, Kolkata – 16 in respect of Schedule – B & C properties who delivered possession to the complainant in respect of Premises No. 13, Royd Street, Schedule _ B & C of Premises No. 13 Royd Street, and complainant is in possession of the flat.
In fact first Agreement to Sale was entered in between Jimmy Shapur Ardeshpur and op but no Sale Deed has yet been executed in favour of Jimmy Shapur Ardeshpur. But in fact as per Agreement to Sale it is clear that Jimmy Shapur Ardeshpur as vendors sold away property in dispute by Agreement to Sale dated 16.04.1997 and as per said agreement dated 16.04.1997, complainant got possession on 16.04.1997 and has been possessing. But the Agreement to Sale in between the Smt. Bhagwati Devi Dalmia and Jimmy Shapur Ardeshpur no Sale Deed has been executed by Bhagwati Devi Dalmia.
Fact remains that this present Agreement to Sale was not made in between the complainant and op. But as because the property in question shall be transferred legally by a Deed of Sale in favour of Jimmy Shapur Ardeshpur at first in its absence complainant cannot get any benefit on the basis of the agreement to sale against Bhagwati Devi Dalmia or on her death, her son the present op.
Another factor is that the present flats do not come under housing construction considering as per provision of C.P. Act. But after proper consideration of the entire fact, it is proved that Jimmy Shapur Ardeshpur was a tenant under Bhagwati Devi Dalmia and Bhagwati Devi Dalmia entered into an Agreement to Sale of that tenanted portion of Jimmy Shapur Ardeshpur by Agreement to Sale on 15.01.1997 and also by an Agreement dated 11.02.1997 in respect of the present Schedule- B & C property. So, that Agreement to Sale was not in respect of any housing construction. So, initial Agreement to Sale in between the Bhagwati Devi Dalmia and Jimmy Shapur Ardeshpur was not a contract of Sale for providing any service as per provision of the C.P. Act that is housing construction. But that Agreement to Sale accepted by Bhagwati Devi Dalmia in favour of for Jimmy Shapur Ardeshpur was nothing but agreement to sale simplicitor. But her own tenant that is Jimmy Shapur Ardeshpur as a tenant intended to purchase that portion from Bhagwati Devi Dalmia who executed an agreement to sale but by that Agreement to Sale Jimmy Shapur Ardeshpur had no power for execution of deed of sale in favour of complainant and further Agreement to Sale in between the tenant and owner does not come under the purview of the C.P. Act and as per said agreement, tenant cannot be a consumer under the landlord on the basis of that agreement to sale.
When that is fact, then by Agreement to Sale executed by Bhagwati Devi Dalmia in favour of Jimmy Shapur Ardeshpur, Jimmy Shapur Ardeshpur has no legal authority, to enter into agreement to sale in favour of the complainant. Even if for the sake of the argument if it is accepted that by that agreement before execution of valid sale deed by Bhagwati Devi Dalmia in favour of Jimmy Shapur Ardeshpur, Jimmy Shapur Ardeshpur agreed to sale the said property to the complainant though no Sale Deed is executed by Bhagwati Devi Dalmia but Bhagwati Devi Dalmia was a confirming party in the present agreement to sale deed dated 16.04.1997, then the present agreement is a valid agreement to sale, when owner became a confirming party. But considering that fact also and applying legal position we are convinced to hold that it is not a contract for rendering any service and the present property from very inception is not a housing construction but all Agreement to Sale are Agreement to Sale simpliciotr.
But fact remains that no agreement to sale is executed by Bhagwati Devi Dalmia in favour of his tenant Jimmy Shapur Ardeshpur as tenant intended to purchase that tenanted portion from his land lady Bhagwati Devi Dalmia. So, as per previous agreement to sale executed by Bhagwati Devi Dalmia in favour of Jimmy Shapur Ardeshpur on 15.01.1997 to 11.02.1997 were not agreement to sale for providing service or by Bhagwati Devi Dalmia. But it was an agreement to sale simplicitor and no doubt on the basis of those agreement to sale Jimmy Shapur Ardeshpur is/was not a consumer or was not or is not consumer under Bhagwati Devi Dalmia or on her death the present op. When it is proved that Jimmy Shapur Ardeshpur was not a consumer under Bhagwati Devi Dalmia on the basis of agreement to sale dated 15.01.1997 and 11.02.1997 then the status of Jimmy Shapur Ardeshpur as tenant still subsists and tenancy of Jimmy Shapur Ardeshpur shall be terminated on the very point of execution of final Sale Deed on the basis of the agreement to sale by Bhagwati Devi Dalmia or by her son and when that is the fact then present complainant is not a consumer under op because complainant has failed to prove by any cogent evidence that Bhagwati Devi Dalmia on the basis of any development agreement with some other contractor,entered into development agreement for selling under construction flat but no such fact is found from this complaint and admitted position is that Jimmy Shapur Ardeshpur is tenant under Bhagwati Devi Dalmia and he intended to purchase those tenanted portion by two separate agreement to sale and for which on the basis of agreement to sale his status is no more than tenant and said tenant’s possession is now enjoyed by the complainant.
In the light of the above observation we are convinced to hold that any way present complainant under the op on the basis of Agreement to Sale in the eye of law it is not a consumer of op and at the same time it is mere agreement in between the complainant and Jimmy Shapur Ardeshpur and Bhagwati Devi Dalmia. So, present complainant is not legally allowed to get any relief as per C.P. Act and at the same time this complaint is barred by limitation because complainant entered into an agreement on 16.04.1997 and this present complaint was filed on 07.11.2014 that is after 35 years and there is no application for condonaion of delay u/s 24A of C.P. Act and for which the present complaint bears no merit in the eye of law and further tenancy right of Jimmy Shapur Ardeshpur still subsists in those process and present complainant at best is enjoying the flats on the strength of Jimmy Shapur Ardeshpur is tenant’s right.
In the result, this complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed in exparte form against the op with penal cost and penal cost is imposed upon the complainant for filing such vexatious complaint against op and that amount of Rs. 5,000/- shall be paid by the complainant within 30 days from the date of this order, failing which penal action shall be started for implementing of the order and realizing of the penalty.
