Order-30.

Date-25/08/2015.

In this complaint Complainant JagabandhuGhosal byfiling this complaint has submitted that complainant was a tenant under the op nos. 2 & 3 in respect of two ground floor rooms lying and situated at Premises No. 27, DurgaCharan Doctor Road, P.S.-Taltala, Kolkata – 700014 and op nos. 2 & 3 are the landowners of the said premises and at all material times the said premises is comprised of land with existing structures thereon.

Pursuant to development agreement executed by and between the op nos. 2 & 3 as owners and the op no.1 as the developer op nos. 2 & 3 entrusted the op no.1 to develop the property measuring about 3 cottahs 10 chittacks and 42 sq. ft. constituting the said premises by constructing of a new ground+3 storied building in accordance with the sanctioned building plan of the Kolkata Municipal Corporation being Building Plan No. 2003060036 dated 05.04.2004 after demolishing the existing structures standing thereon and op nos. 2 & 3 also executed a Registered Poser of Attorney (POA) in favour of the op no.1 in order to confer certain powers to the said op which would enable him to carry out the said development work.

Op nos. 2 & 3 entered into negotiations with the complainant for the purpose of securing vacant possession of his occupied portion constituting his existing tenancy.Ultimately it was decided by and between the op nos. 2 & 3 as owners, op no.1 as developer and the complainant as purchaser that the complainant would purchase the north side flat in the 1^st floor of the said premises constructed by the developer in accordance with the sanctioned Building Plan No. 2003060036 dated 05.04.2004 and particularly described in Schedule A which is the part of 1^st floor of the said plan at a consideration of Rs. 8 lakhs to be paid by the complainant to the op nos. 1, 2 & 3 and it was further agreed by and between the parties that the said sum of Rs. 8 lakhs would be paid in staggered phase wise manner whereby the complainant would make payment of Rs. 65,000/- at the time of signing of a formal memorandum of agreement and the balance sum would be paid by the complainant to the op nos. 1, 2, & 3 as per following schedule –

Total Rs. 8,00,000/-

Accordingly Registered Agreement for Sale being Deed No. 7747 of 2006 dated 06.01.2006 in respect of the said first floor was entered into by and between the op nos. 2 & 3 as owners, the op no.1 as Developer and the complainant as purchaser, containing a recording of the said agreement for sale of the said first floor flat measuring 675 sq. ft.and embodying the terms of the same and sketch plan showing the extract of the sanctioned plan granted by the KMC containing the exact description and position of the said flat proposed to be purchased by the complainant was also made part of the said agreement.

Similarly by a registered agreement for sale being Deed No. 01420 of 2007 dated 06.01.2006 executed by and between the op nos. 2 & 3 as owners, the said ops agreed to sale convey and transfer to the complainant the first floor middle east portion of the constructed area measuring about 200 sq. ft. of covered area in terms of the sanctioned building plan granted by the KMC consisting of one bed room and one bath privy together with right to common spaces and facilities and proportionate share on the land comprising in the said premises and a map/plan showing containing the extract of the sanction building plan granted by the KMC with the said area marked in blue ink was made part of the said registered agreement to sale.Complainant in pursuance of the said agreement for sale of the said first floor flat and in furtherance thereof, paid a sum of Rs. 65,000/- to the op nos. 1, 2 & 3 by execution of the aforesaid agreement to sale and thereafter on or about 10.09.2006 complainant further paid a sum of Rs. 1,35,000/- to the ops and by way of the first installment of phase-wise payment as contained in the concerned agreement for sale dated 06.01.2006.

Complainant diligently discharged his obligation on payment but the ops in collusion and conspiracy with each other for reason best known to them delayed in completing the said work and accordingly the said flat could not be delivered to the complainant in time.

When the op no.1 failed and neglected to complete the construction of the suit flats, the complainant by letters dated 09.01.2007 called upon the ops to complete the construction and make the said flats ready for due delivery to the complainant within the stipulated period as mentioned in the agreements.But in response to the said letter, op nos. 1 & 2 issued a letter on 15.01.2007 addressed to the complainant stating that the construction work could not be completed.But ops promised to complete the construction and to deliver possession of the said flat to the complainant and in response to the said letter dated 29.01.2007 complainant wrote to the op nos. 2 & 3 by his letter on 29.01.2007 raising certain issues and in response to the complainant’s letter, op nos. 2 & 3 issued a letter dated 17.02.2007 addressed to the complainant stating that op no. 1 had the exclusive right and authority to deliver the specified proposed flat and further that the complainant was required to contact with the op no.1 for seeking his relief before him.

Inspite of oral and written queries, there was no response on the part of the op no.1 and complainant again by a letter dated 08.03.2007 wrote to the op no.1 calling upon him to complete and deliver possession of the suit flat within a period of 7 days from the date of receipt of the letter.But no response was made by the ops and it appeared that the op nos. 1, 2 & 3 are in league with each other and was trying to frustrate the rights of the complainant and his legitimate claim to get the possession of the flats in question.

But as per agreement ops are bound to deliver vacant peaceful possession of the flats in dispute in accordance with the agreements executed by and between the parties and to deliver vacant possession of the said flats in terms of the said agreements to the complainant.

In spite of the said agreement op nos. 1, 2 & 3 are not showing any interest to obey said agreement and they are not performing as per the said agreements in respect of handing over the possession of the said flats, thus they are totally violating their service as per agreement and they have also not discharged their part performance and no doubt it is the deficiency and negligent manner of service and in the above circumstances, complainant as consumer has prayed for redressal against the ops for executing the deed of agreement to deliver the possession of flat including cost.

Op nos. 1, 2 & 3 by filing written statement have submitted that they appeared before this Forum after receipt of the notice on 11.02.2013 and in their written version they have stated that no doubt there were 2 registered Agreement to Sale executed between the complainant and the ops on 06.01.2006 for two flats and the ops sold away the said flat to some other persons, but the complainant did not file the complaint before this Forum within the limitation period of 3 years, but complainant filed this complaint after more than 6 years.So, complaint is barred by limitation and is not maintainable.

Moreover there is no whisper in his complaint that complainant instituted a Title Suit before the Ld. 9^th Judge, City Civil Court at Calcutta being T.S. No. 1647/2007 for the self same cause of action against the same parties and the said suit is dismissed on contest on 07.07.2009.Thereafter complainant filed one appeal being F.M.A.T. No. 964/2009 before the Hon’ble High Court at Calcutta against the order of the Ld. 9^th Judge, City Civil Court at Calcutta vide order dated 07.07.2009, the Hon’ble Justice Mr. Subhrakamal Mukherjee and Justice Tapas Kumar Giri, Division Bench who dismissed the appeal after hearing both sides on 18.08.2009 and for which the present complaint is not maintainable and there is no scope on the part of the complainant to oppose the same when the matter had already been decided byboth the City Civil Court and Hon’ble High Court Division Bench who also observed that the suit is barred by the provision of Section 12A of the West Bengal Building (Regulation of promotion of construction and transfer by promoters) Act, 1993.So, Section 3 of the C.P. Act hut by the provision of this Act.So the present complaint is not maintainable before the Forum and it is barred by limitation and prayed for dismissal of this case.

Decision with reasons

On proper consideration of the complaint and written version and also relying upon the evidence in chief of the op no.1 and further reply of the op no.1 on affidavit to the question filed by the complainant and also the argument as advanced by the Ld. Lawyers of both the parties, it is found that op no.1 has admitted in his evidence in chief that he is conversant with the entire fact and circumstances of this case and he submitted evidence in chief for self on behalf of the op nos. 2 & 3 on the strength of letter of authorization dated 02.07.2015.

Op no.1 the Developer Sk. Azem Ali by swearing affidavit admitted that on 31.07.2013 a Development Agreement was executed by and between the op nos. 1 to 3 in respect of Premises No. 27, DurgaCharan Doctor Road, Kolkata – 700014 and on 05.03.2005 a General Power of Attorney was executed and registered by op nos. 2 & 3 in favour of op no.1 in respect of the present disputed premises and same was registered in the office of the Registrar of Assurances III, Calcutta and entered and recorded in Book No. IV, Volume No. 18, Page Nos. 143 to 154, being No. 1162 for the year 2005.

Ops on behalf of op no.1 has admitted in his evidence that the said new building G+3 has been constructed as per the Municipal Sanctioned Building Plan No. 2003060036 dated 05.03.2004 and in terms of the said Development Agreement after demolishing the existing structures standing thereon.It is admitted by the ops that in respect of 200 sq. ft. flat on the middle east portion of the first floor of the newly built G+3 storeyed building at the said premises the complainant agreed to purchase by virtue of the registered Agreement to Sale on 06.01.2006 being Deed No. 01420/2007, falls under the Owners’ allocation in terms of the said Development Agreement.

It is also admitted that before the said newly built G+3 storeyed building was raised, the complainant along with his sisters, namely Smt. Tuku Hazra and Smt. BharatiGanguly were monthly tenants under the op nos. 2 & 3 in respect of two ground floor rooms with common bathroom and privy in the said premises.The complainant’s two sisters, Smt. Tuku Hazra and Smt. BharatiGanguly have not surrendered and/or relinquished their tenancy rights in respect of the said tenanted accommodation in the said premises.

It is also appeared from the registered Agreement of Sale on 06.01.2006 vide Deed No. 01420/2007 in respect of the 200 sq. ft. flat on the 1^st floor of the newly built G+3 storeyed building was entered in lieu of the said tenanted accommodation of the complainant and his said two sisters in respect of two ground floor rooms with common bathroom and privy, without surrendering the tenancy rights of his sisters.

The tenancy rights in respect of the tenanted accommodation as aforesaid of the complainant and his said two sisters subsist all along during the construction at the said premises, as mentioned in point no. 9 at page no. 10 of the said registered Agreement for Sale dated 06.01.2006 vide Deed No. 01420/2007.It is also admitted by the ops that after erection of the said newly built G+3 storeyed building in the said premises, the complainant has been possessing and occupying the ground floor flat measuring about 200 sq. ft. as a tenant along with his said two sisters under their landlord and landlady i.e. the op nos. 2 & 3 and has been paying KMC taxes therefor.

Moreover it is alleged by the ops that registered Sale Agreement for Saledated 06.01.2006 being 200 sq. ft. flat on the first floor of newly built G+3 storeyed building was executed without any consideration/sale price, as mentioned therein, as written in the said Agreement for Sale and further it is submitted that the complainant has been all along in possession thereof since the time of construction of the said newly built G+3 storeyed building at the said premises and complainant have been all along in possession of the said premises, and was acquainted with the different stages of the construction work undertaken at the said premises and op nos. 2 & 3 being represented by the op no.1 delivered the possession of the said flat to him sometime in the year 2007 and the complainant has been paying KMC taxes.But ops assertion is that ops repeatedly requested the complainant on several occasion to take possession of 200 sq. ft. flat on the first floor and take steps for execution and registration of a Deed of Conveyance in terms of the said registered Agreement for Sale Deed dated 06.01.2006 being Deed No. 01420/2007 by delivering possession of ground floor flat as possessed by them as tenants but op has failed and neglected to act accordingly.

In fact complainant as per his choice took the ground floor flat of 200 sq. ft. flat and voluntarily chose to occupy and possess the said ground floor flat of 200 sq. ft.instead of the first floor flat of 200 sq. ft.Therefore the said registered Agreement for Sale dated 06.01.2006 having Deed No. 01420/2007 has been automatically rescinded and terminated and so the complainant is not entitled to the first floor flat of 200 sq. ft.though ops are always ready and willing to execute deed in respect of the said 200 sq. ft. Ground Floor flat in the said newly built G+3 storeyed building at the said premises to the complainant in lieu of vacating the said tenanted accommodation by the complainant and his said two sisters.

In fact after considering the materials, it is found that complainant has not answered any positive answer in detail against question that 675 sq. ft. on the northern side of the first floor of the newly built G+3 storeyed building, which the complainant agreed to purchase by virtue of the registered Agreement for Sale on 06.01.2006, Deed No. 07747/2006, falls under the Developer’s allocation in terms of the said Development Agreement.But after considering the Development Agreement, it is found that the said disputed flat on the first floor falls under the allocation of the owners, i.e. op nos. 2 & 3.At the same time as per Agreement for Sale, it is found that Agreement for Sale dated 06.01.2006 of 200 sq. ft. vide Deed No. 01420/2007 was made without any consideration or any price.But it was agreed by the Agreement in place of the tenanted portion occupied on the Ground Floor by the complainant and his 2 sisters, without payment of any sale price that is said 200 sq. ft., but that has not been denied by the complainants.

It is specifically suggested by the op that alternative accommodation during continuation of the construction work was made and the complainant and his two sisters stayed within the Premises No. 27, DurgaCharan Doctor Road, Kolkata – 700014 and that is in possession of the complainant and his two sisters and this question was made by the op vide question No. 10 and that has been admitted by the complainant in his answer and complainant has also admitted the question no.8 that the agreement for sale dated 06.01.2006 vide registered deed No. 01420/2007 was made without any consideration/sale price but that is not admitted.

But considering the Deed of Sale in respect of the 200 sq. ft. area, it is clear that the 200 sq. ft. on the first floor shall be handed over against the possession of 200 sq. ft. on the ground floor to the complainant and his two sisters.But there was no term for passing any consideration.So, it is clear that in respect of Agreement for Sale dated 06.01.2006 for 200 sq. ft. flat on the first floor was executed in between the JagobondhuGhosal and ops and admittedly JagobondhuGhosal is one of the tenants and his two sisters Tuku Hazra and BharatiGanguly are also parties in that case.So, it is clear that agreement was executed in between JagobandhuGhosal and his two sisters, but complaint is filed in by the JagobandhuGhosal but agreement is executed against the complainant and his two sisters and also ops.

But after considering the said agreement, it is clear that there was no question of passing of any consideration price and no payment was made for agreement to sale.But it was an agreement in between the landlord and Developer and tenants that the tenants shall get 200 sq. ft. covered area consisting of one bed room, one bath privy together with right to common spaces on the first floor against of the tenanted portion on the ground floor.But fact remains that when no consideration was passed in between the parties or amongst developer and 3 tenants, there is no question of treating the tenant as consumer under the ops in respect of that 200 sq. ft. covered area on the first floor.

Another factor is that it is admitted position that complainant and his two sisters have been possessing their tenanted portion on the ground floor in respect of equal share area of 200 sq. ft. covered area.So, under any circumstances, complainant himself alone is not tenant under the op nos. 2 & 3 but his two sisters Tuku Hazra and BharatiGanguli are also tenants and it is an agreement in between the tenants and landlord and truth is that on the first floor flat in respect of agreement was executed in between the ops and complainant and his two sisters, so, only for change of their tenanted portion from the ground floor to first floor the Sale Deed in favour of the tenants without any consideration would be executed as per agreement.

But we have gathered after considering the materials that complainant only filed the complaint as one of the tenants.But it is to be mentioned in this regard that no consideration was passed, no price was paid as per agreement and there was no question of paying any amount for such agreement to sale.So, the complainant or his two sisters are not consumer. But no doubt, two sisters are not made parties as complainant in this case.But truth is that the ops always gave alternative accommodation on the ground floor and that has been possessed by the complainant and his two sisters.So, his grievance does not come under the purview of C.P. Act and complainant is not consumer under the Op in respect of that Deed that is in respectof 200 sq. ft. area of the flat.

But most interesting factor is that ops rightly stated in their written version, evidence in chief that they are willing to handover the possession of the 200 sq. ft. flat on the first floor from owner’s allocation because it was allocated to owner’s allocation and truth is that complainant and his two sisters were/are tenants under op nos. 2 & 3 and op no.1 is authorized persons on the strength of Power of Attorney to execute the Sale Deed and if complainant and his two sisters vacate the ground floor flat and take the possession on the first floor in that case op nos. 1 to 3 shall execute it.Then it is clear that complainant is trying to grab the property by suppressing the existence of tenancy of his two sister Tuku Hazra and BharatiGanguli and fact remains that ground floor flat has not been vacated and that is being possessed by the complainant till as tenant under op nos. 2 & 3.

Further considering the said agreement in respect of 200 sq. ft. flat on the first floor we have gathered that it is agreement in between the landlord and tenant without any consideration only.But as because Power of Attorney has been executed by the landlord in favour of the Developer and Developer constructed and took the charge of construction, he signed as developer.Further from the said agreement it is found that two sisters confirmed their NOC by entering into agreement to sale and if any Sale Deed is executed in favourof the present complainant, they have their no objection.So, it is clear that as per agreement in the Sale Deed also two sisters must be made parties as no objector in Sale Deed also if complainant agrees to get such a deed of sale as per Agreement.

In the light of the above observation we are convinced to hold that in respect of 200 sq. ft. flat on the first floor, the present agreement cannot be anyway implemented by this Forum by passing any order when there is no question of passing any consideration and etc.Further we have already realized that as per judgement of Hon’ble National Commission if any new construction is made by the landlord by removing the tenant and if there is any agreement, in that case after completion of the work, the tenant shall be replaced in their tenanted portion and in this case it is proved that even after agreement, complainant was not removed from the tenanted portion, he was given alternative accommodation and after construction, complainant himself took ground floor 200 sq. ft. flat and has been possessing as tenant.Then all part of obligation on the part of the op were duly performed in respect of that 200 sq. ft. flat area.

Now we shall have to consider the another agreement amongst the parties of this complaint and that is in respect of 675 sq. ft. area on the first floor of the new building subject to payment of Rs. 8,00,000/- and after considering the said agreement, it is found that it is a another Agreement in between the complainant and ops for agreement to sale in respect of another flat covering an area of 675 sq. ft. subject to payment of Rs. 8 lakhs and as per agreement (Page-10), it is clear that on completion of entire foundation as second floor slab, complainant shall have to pay Rs. 1,35,000/-.But complainant has stated in his complaint and evidence that he has paid Rs. 65,000/- on the date of execution of the said agreement and thereafter paidRs. 1,35,000/- that means he has claimed that he has paid Rs. 2,00,000/- out of Rs. 8,00,000/-.But thereafter there are 6 phase out of that complainant failed to prove that he paid that amount phase wise.But it is proved that complainant out of Rs. 8,00,000/- only paid Rs. 2,00,000/- and as per agreement, the possession shall be handed over to the complainant by January 1997.

But fact remains that complainant before January-2007 failed to pay the balance amount of Rs. 6,00,000/- and reasons for non-payment has not also been explained by the complainant and as per Registered Agreement, it was the duty of the complainant to pay balance of Rs. 6,00,000/- but that has not been paid and that is specifically alleged by the ops that complainant did not pay the balance amount for which op after waiting for years sold away the same to third party by Registered Deed of Sale in favour of one Mrs. Archana Gomes by a Deed of Sale on 06.02.2009.

Truth is that complainant is residing on the ground floor of the said building, truth is that complainant has failed to pay balance entire amount of Rs. 6,00,000/-, truth is that ops waited up to 2009, thereafter sold away and delivered the possession to Archana Gomes but that property was sold at Rs. 5,20,000/- and when that sale was made in the year 2007 and Archana Gomes took possession, then invariably complainant ought to have filed this complaint before this Forum within two years from the date of Sale.But we have gathered that ops took such unfair path regarding sale of 675 sq. ft. on the first floor because total price was fixed at Rs. 8,00,000/-.Then how the ops sold away the said property at Rs. 5,20,000/-, that means huge black money was collected by ops from said purchasers and that flat has been sold only to deprive the complainant.But we have understood that complainant is sufferer similarly we have gathered that complainant has no fund to pay Rs. 6,00,000/- at a time for which complainant was always silent.There is no letter from 2006 to 2009 that complainant at every point of time asked the op to execute the Sale Deed by receiving the balance money and not even sent cheque for encashment as per schedule of payment as noted in the agreement to sale.

So, it is clear that complainant is only entitled to get refund of the said amount of Rs. 2,00,000/- which has been paid by the complainant in the year 2006 along with interest, but not more than that.Question of getting the flat or registered deed does not arise in this case when the flat has already been sold in the year 2009 to Archana Gomes by Registered Sale Deed which is evident from the copy of the Sale Deed and fact remains that it is also admitted by Ld. Lawyerof the op that the property is already sold and final Deed was registered on 17.02.2009.Now question is whether the complaint is maintainable or not.In this regard, we have gone through some order as produced by op.But we have gathered that the said complaint was rejected for some other reasons and Hon’ble High Court also directed the parties to urge their plea to proper Forum.Thereafter ops challenged the maintainability of this case initially and that application challenging the maintainability of this case as submitted by the ops on 21.03.2014 was rejected on contest by this Forum on 07.05.2013 vide order No. 8.

Thereafter ops preferred an appeal before State Commission and Hon’ble State Commission in Revision Petition No. 143/03 confirmed that order and that Revision was dismissed by the Hon’ble State Commission.So, we are convinced that Hon’ble State Commission already come to a conclusion that the complaint cannot be said to be barred by limitation.So, at this stage, we are confirmed that the complaint is maintainable and particularly maintainable in respect of the Agreement to Sale being registered Deed No. 7747/2006 dated 06.01.2006 and truth is that ops have not refunded that Rs. 2,00,000/- to the complainant since 2007but they have sold away the same to Archana Gomes on 06.02.2009 and registered on 07.02.2009.So, under any circumstances, complainant is not entitled to implement the said registered agreement to sale but no doubt ops are legally bound to refund the said amount of Rs. 2,00,000/- with bank interest of 8 percent p.a. w.e.f. January-2008 till its full payment.But in respect of another Deed, Agreement to Sale dated 06.01.2006 being Deed No. 01420/2007 that is in respect of 200 sq. ft. same is not tenable in the eye of law what we have already observed for which the complaint succeeds in part.

Hence, it is

Ordered,

That the complaint be and the same is allowed in part on contest against op nos. 1, 2 & 3 with cost of Rs. 5,000/-.

Ops jointly and severally are hereby directed to refund and pay an amount of Rs. 2,00,000/- which has been received as advance against Registered Sale Deed being Deed No. 7747/2006 dated 06.01.2006 and also interest at the rate of8 percent p.a. w.e.f. January 2008 and till its full payment by the ops jointly and severally and it must be paid and clear by the ops jointly and severally along with litigation cost also within one month from the date of this order, failing which for further harassment and sufferings, ops shall jointly and severally shall have to pay penal damages at the rate ofRs. 200/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

Even if ops are found reluctant to comply the order within the stipulated time, in that case penal action shall be started u/s 25/27 of C.P. Act 1986 against the ops for which they shall be imposed further penalty and fine.