FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant filed this case U/s13 of the CP Act, 1986.
The fact of the case in brief is that the complainant was a tenant since long in respect of one grocery room measuring more or less 107.48 sq. ft. covered area under the OP-1 to 7 at the premises No. 58, Picnic Garden Road, PS- Tiljala, Kolkata-700039 and the OPs 1 to 7 are the joint owners of all the piece and parcel of land measuring more or less 3 cottahs, 9 chittaks 20 sq. ft. being 58, Picnic Garden Road, PS- Tiljala, Kolkata-700039.
It is further stated by the complainant that the OPs 1 to 7 have entered into an development agreement in respect of premises in question as mentioned above as owners of the same with the OP-8/developer to develop the said premises as per terms and conditions of the agreement.
Thereafter, the OPs have entered into agreement with the complainant on 20.02.2016 to transfer one shop room in favour of the complainant after completion of the construction on ownership basis in the name of the complainant measuring about 59 ft, 10 inch x 6 feet 9 inch equal to 107.48 sq. ft more or less in the ground floor, eastern side of the new building at the premises No. 58, Picnic Garden Road, PS- Tiljala, kolkata-700039.
It is further stated by the complainant that one of the co-owners namely Sk. Rehauddin son of Late Sk. Kamaluddin died in-tested at unmarried stage. The copy of the agreement dated 20.02.2016 is marked as Annexure “A”.
It is further stated by the complainant that in the agreement dated 20.02.2016, It was settled that the OPs will have handed over the schedule shop room to the complainant against the surrender of the old tenancy of the complainant, accordingly the complainant surrender his possession of the rented portion to the OPs for the proposed construction.
It is further stated by the complainant that he agreed to purchase the shop room for his own lively hood and surrender of the tenancy is the consideration of the shop room.
It was agreed by the OPs that they will hand over the schedule room within 4 month from the date of agreement dated 20.02.2016 or within 07 days of the ground floor casting but they did not handover the shop room within the time rather they tried to transfer the shop to third party at high price.
If he complainant used to earn Rs. 15,000/- per month as net profit from the shop room as mentioned above.
It is alleged by the complainant on several occasions he requested the OPs to handover the possession of the shop room in his favour but they did not pay any heed to his request. Having no other alternative the complainant sent legal notice on 07.08.2018 through his conducting advocate under speed post with AD but the OPs intentionally avoided the notice and they hand over one the shop rooms measuring about more or less 94 sq. ft. on 10.08.2018 and they had deferred to register the shop room as mentioned in schedule of the petition of complaint in favour of the complainant.
It is alleged by the complainant that the OPs did not perform their duties and they have violated the terms and conditions of the agreement dated 20.02.2016 so, the cause of action arose on and from 07.08.2018 when the OPs refused to receive the legal notice sent by the complainant. The complainant requested the OPs to execute and register the deed of conveyance in respect of the shop room in question as mentioned in the second schedule of petition of complaint in his favour. But the OPs neglected and refused him.
Hence, having no other alternative, complainant has filed this case before this forum with a prayer to give direction upon the OPs to register the sale deed in respect of the shop room in question in his favour or to register the same in favour of the complainant through the court and also prayed for giving direction to the OPs to handover all the document on paper relating to the shop room in question to the complainant and also prayed for giving direction to the OPs to give Rs. 97,600/- only as market value of the 135 sq. ft shortage area of the shop room in question.
It is prayed by the complaint to give the direction to the OPs for giving compensation to him of a sum of Rs 2,00,000/- along with litigation cost of Rs. 50,000/-.
The OPs 1,3,4,5 & 6 and 8 have contested the claim application by filing separate WV denying all the material allegations levelled against them.
The OPs 1,3,4,5 & 6 have contested the claim application by filing a single WV.
It is admitted by the OPs 1,3,4,5 & 6 in their WV that the father of the complainant was a tenant of a shop of OPs 1 to 7 and the measurement of the shop room measuring about 107.48 sq. ft. as stated in the petition of complaint which was terminated a long ago but the complainant was never a tenant under the OPs No. 1 to 7.
It is further stated by the OPs 1 to 7 that they trusted the OP-8/developer and they singed many documents as stated by the developer with sheer belief but they never signed any agreement as claimed by the complainant in his written complaint. So, if any agreement exists i.e. totally false fabricated and manipulated. It is also denied by the contesting OPs that they had never agreed or promised to the complainant to handover the shop room out of their allocation without any consideration.
It is admitted by the OPs that a development agreement was made between the OPs 1 to 7 and the OP-8/developer. The contesting OPs signed the unfurnished agreement where the date was not mentioned but the year appeared as 2016. They signed agreement on good faith on or after 20th Feb, 2016. After signing the agreement the developer placed a photocopy of incomplete development agreement to the contesting OPs. But the complainant claimed in his petition of complaint that the agreement between the complainant and the OPs was made on 20th Feb, 2016 which means that the developer entered into agreement with a person prior enter into development agreement with contesting OPs. So, they denied the agreement mentioned by the complainant because it is alleged that the said agreement if any is forged one.
It is also denied by the OPs that they ever agreed to handover the shop room to the complainant within 4 months from the date of execution of the said agreement in question started on and from 20.02.2016 or within 7 days from the ground floor casting.
It is further case of the OPs that the developer starts demolishing structure. They started soil test, thereafter sanction of building plan and then the developer work would be started which is time taken matter. So, it is denied that it was agreed by them to the complainant that they will hand over the possession of the alleged shop room within four months from the date of execution of the agreement in question dated 20.02.2016. The contesting OPs 1,3,4,5 & 6 have denied their knowledge about the execution of agreement in question stated dated 20.02.2016 as per the OPs case the alleged agreement in question dated 20.02.2016 is forged one so, the question of deficiency in service on the part of the OPs does not arise at all and the complaint case as filed by the complainant is liable to be dismissed with cost.
The OP-8 Shakil Ahmed has contested the petition of complaint by filing a separate WV denying all the material allegation levelled against him.
As per the case of the OPs 8 the case of the complainant is not maintainable at all in the eye of law rather the complainant has filed the case by suppressing all material fact with malafide intention.
It is further stated by the OP-8 in his WV that he is a developer by profession and he (OP-8) undertook development work at premises No. 58, Picnic Garden Road, PS-Tiljala, Kolkata-700039 and on the said premises the father of the complainant was a tenant.
He further stated that the OPs -8 and the complainant entered into agreement for rehabilitating the complainant into proposed newly constructed building and therefore, requested the complainant to vacate his space for construction work and arranged for alternative accommodation for the said tenant (complainant). Thereafter, on completion of construction work the OPs -8 re-habitated the complainant and handed over the shop room in the newly construed building. But the complainant has suppressed all those facts but the complainant has filed this case by suppressing all those facts which caused harassment to the OP-8.
it is further stated by the OP-8 that there was no consumer and service provider relationship between the complainant and the OP-8 as the alleged agreement is a gracious agreement and there is /was no monetary consideration between themselves moreover, the OP-8 has already handed over the possession of the shop room to the complainant as agreed.
It is the further case of the OP-8 that the complainant was never a tenant under his control. it is admitted by the OP-8 in his WV that it is fact that the OP-8 and the complainant have entered into agreement but the said agreement was executed by the complainant on behalf of his father who was the original tenant in respect of the shop room at the premises in question and the possession of said room has already been handed over to the original tenant. Thus, the claim of the complainant is fake, baseless and the case is liable to be dismissed.
It is further case of the OP-8 that the complainant has no cause of action to file this case. Thus, the same is liable to be dismissed with cost.
In view of the above stated pleadings following points of consideration are as follows:-
- Is the case maintainable in its present form and law?
- Has the complainant cause of action to file the case?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get reliefs as prayed for.?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny of materials on record, it appears that the case is well within the jurisdiction of this forum both pecuniary and territorial jurisdiction.
The cause of action arose on 10.08.2018 when the OPs handed over the shop room measuring about more or less 94 sq. ft. instead of 107.48 sq. ft. Hence, the complainant has sufficient cause of action to file this case though the contesting OPs ie OPs 1,3,4,5 & 6 have denied the agreement in question dated 20.02.2016 but from the copy of the agreement as submitted by the complainant along with petition of complaint which has come as annexure “A”, it is palpably clear that all the OPs of this case have entered into an agreement with the complainant on 20.02.2016. It has promised that they will hand over the possession of the shop room to the complainant within 4 months or within 7 days of the ground floor casting.
So, from annexure “A” and also from the admission of the OP-8 in his WV, it is crystal clear that though the contesting OPs 1,3,4,5 & 6 have denied the agreement in question but it is proved that they entered into agreement dated 20.02.2016 with the complainant wherein they have promised to handover the possession of the shop room to the complainant within 4 months or 7 days of the ground floor casting.
it is argued by the OP-8 that there was no payment of consideration on the part of the complainant so the complainant cannot demand the compensation or valuation of the rest portion of his shop room but in the instant case on careful scrutiny of the materials on record and WV of the OPs, it is revealed that the OPs have entered into an agreement with the complainant by considering him as a tenant in respect of the shop room measuring about 107.48 sq. ft. From the conduct of the OPs 1 to 7, it is proved that they accepted the complainant statement of shop room in question and it is the view of the Hon’ble Apex Court that in respect of tenant surrender of tenancy for the development work should be considered as consideration of the subject in question. Relying upon the view of the Hon’ble Apex Court, this forum is also of view that the complainant entered into an agreement of no objection to demolish structure wherein he was a tenant in respect of the shop room measuring about 107.48 sq. ft. under the OPs 1 to 7. He surrendered his tenancy to the OPs 1 to 8 for the proposed development work as the OPs promised him that they will hand over the shop room to him on completion of the construction work within 4 months of the execution of the agreement or within 7 days for the ground floor casting.
From the conduct of the parties to this case it is proved that the complainant is/was a consumer under the OPs and the OPs are the service provider.
Admittedly the OPs ie OP-8 specially developer has handed over the shop room to the complainant after getting legal notice from the end of the complainant and the shop room is measuring about 94 sq. ft more or less instead of 104.48 sq. ft. so, the complainant has filed this case with a claim of valuation of shortage area of Rs 97,600/-, compensation of Rs 2,00,000/- , and litigation cost of Rs 50,000/-.
Under such circumstances, let us see whether there is any short of deficiency in service on the part of the OPs or not.
It is evident from the materials on record that the complainant on several occasion requested the OPs i.e. landowners and developer to give him the valuation of the shortage area i.e. 13 sq ft. but the OPs did not take any proper step to give him the valuation of the 13 sq. ft shortage area of shop room and they did not register the deed of conveyance e in favour of the complainant. They also did not handover the document regarding the shop room to the complainant.
The complainant requested on several occasion but the OPs refused to register the deed of conveyance and handover the document of the sop room which caused harassment, negligence mental pain and agony to the complainant and which compelled him to file this case against the OPs.
On the basis of discussion made above, this forum is of view that such misconduct of the OPs shall be considered as the deficiency in service and for which they are liable to compensate the complainant.
In view of the discussion made above, this forum is opined the complainant could be able to prove his case beyond all this reasonable doubt and is entitled to get relief as prayed for.
The case is properly stamped.
The points of consideration are thus considered and decided favourably to the complainant.
Hence,
Order
that the case be and the same is decreed on contest against OPs 1,3,4,5 & 6 and 8 and ex parte against the OPs 2 and 7 with cost of Rs. 2000/- .
The complainant do get the decree as prayed for.
The OPs are directed to pay Rs 97,600/- to the complainant which is the market value of the 13 sq. ft. of shortage area either jointly or severally within 45 days from the date of this order.
The OPs are further directed to pay compensation to the complainant of Rs. 30,000/- either jointly or severally along with litigation cost of Rs 5,000/- within 45 days from the date of this order.
If the OPs parties failed to comply the decree within the stipulated period as mentioned above the complainant will be at liberty to execute the same as per law.
