Judgment : Dt.22.2.2017

            This is a complaint filed by one Sri Madhusudan Naskar, son of Late Kanai Chandra Naskar, residing at B-23, Brahmapur South End, P.S.-Bansdroni, Kolkata-700 096 against (1) Sharmistha Nandi, daughter of Late Asit Kumar Nandi, OP No.1 and (2) Abhisek Nandi, son of Late Asit Kumar Nandi, both residing at F-42, Brahmapur Place, P.O.- Brahmapur, P.S.-Bansdroni, Kolkata- 700 096, praying for direction upon the OPs to execute the deed and also to handover the possession to the Complainant by adjusting the balance amount.

            Facts in brief are that the Complainant is a tenant under the OP by a lease agreement executed on 13.9.2011, in respect of a shop room situated at Southern portion of the premises No.F-42, Brahmapur. OP decided to develop the land by way of constructing a multi storied building and entered into a development agreement on 14.8.2014 with M/s SSK Construction, a partnership firm. OP entered into an agreement with the Complainant for rehabilitation of his possession. As per Clause E (i) of the agreement, OPs are liable to take steps for shifting the Complainant’s tenanted room in a nearer to the present position for running his business in the name of M/s Biva Enterprise. OPs also agreed to handover the possession to the Complainant in a newly constructed building and shall execute the sale deed in favour of the developer within 90 days, in default the OPs  are liable to pay Rs.30,000/- per month.

            Thereafter a supplementary affidavit was executed between the OP and the Complainant in February, 2015. OPs neglected to deliver the possession of the shop room to the Complainant, in the newly constructed building. The OPs are liable to pay incidental charges to the tune of Rs.15,000/- per month. OPs failed and neglected to shift the Complainant to the newly constructed multi storied building. So, OPs are liable to pay Rs.6,00,000/- along with Rs.15,000/- p.m. as per supplementary agreement. Since OPs did not oblige, this case has been filed.

            On the basis of the above facts the complaint was admitted and notices were served. But OPs did not appear. So, the case is heard ex-parte.

Decision with reasons

            Complainant filed affidavit-in-chief.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            A Xerox copy of the agreement dated 23.7.2014 is filed, wherein OPs have agreed that they will shift Complainant in another tenanted room. Further, they have agreed that they shall pay the rent after shifting him back till Complainant is given accommodation in the new building. Further, a supplementary agreement was entered into between the parties where in it is stated that OPs shall pay incidental charges to the tenant to the tune of Rs.15,000/- per month. Original of these documents have not been filed. Supplementary agreement appears to be signed by Sharmistha Nandi only. In this case the OPs are Sharmistha Nandi and Abhisek Nandi. This agreement is dated 4.3.2015. Since OPs did not contest the case the allegations made by Complainant remains unrebutted and unchallenged. However, it appears that Complainant did not take any step for establishing the facts that in the building a shop room has been created for him. Further, the tenancy agreement between them has not been filed, though it has been admitted that Complainant is a tenant. There is a letter, dated 30.7.2015, wherein OPs have written that Rs.78,600/- is due to be paid by the Complainant to the OPs. Further, it appears from the Xerox copy of the documents that OPs are willing to handover the constructed shop room to the Complainant. Complainant has not made clear as to whether he paid the dues to the OPs. So, it appears that Complainant has not come to the Forum with clean hands.

            As such, Complainant is not entitled to any relief.

            Hence,

ordered

            CC/419/2016 is considered and dismissed ex-parte.