In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/73/2019.
Date of filing: 28 /06/2019. Date of Final Order: 10/08/2022
- Sri Jahar Lal Samanta,
Son of Late Badal Chandra Samanta,
21/4 Khatir Bazar Lane, P.O. Bishra, P.S. Serampore,
Dist- Hooghly, PIN 712 248. ………………… Complainant
Vs
- Smt. Dipti Bakshi,
D/O – La e Jogendra Nath Bakshi,
385, G.T. Road, P.O. – Mahesh, P.S. – Serampore,
Dist- Hooghly, PIN – 712 202.
- Smt. Sumita Bakshi,
W/O – Late Amit Kukmar Bakshi,
385, G.T. Road, P.O. – Mahesh, P.S. – Serampore,
Dist- Hooghly, PIN – 712 202.
- Smt. Karabi Bakshi,
W/O – Late Anuv Kumar Bakshi,
385, G.T. Road, P.O. – Mahesh, P.S. – Serampore,
Dist- Hooghly, PIN – 712 202.
- Kumari Saheli Bakshi,
D/O – Anuv Kumar Bakshi,
385, G.T. Road, P.O. – Mahesh, P.S. – Serampore,
Dist- Hooghly, PIN – 712 202.
- Smt. Swarnali Bakshi,
-
385, G.T. Road, P.O. – Mahesh, P.S. – Serampore,
Dist- Hooghly, PIN – 712 202.
- M/s. DEVIR REAL ESTATE DEVELOPERS LTD.,
Registered Office at 266D G.T. Road, P.O. – Liluah,
P.S. – Belur, Dist- Howrah.………….. Opposite Parties.
Before: Hon’ble Member, Minakshi Chakraborty.
Hon’ble Member, Shri Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant who states that he was carrying a business as a tenant at 385 G. T. Road, P.O. – Mahesh, P.S. – Serampore under the landowner of Opposite Party no. 1 to 5 for last 50 years and the said business is the only source of his livelihood and at the time of induction as a workshop the complainant carrying a business of shop over the land total area 8 Cottahs with structure being holding no. 384, 384A, 385, and 388A, G. T. Road under Serampore Municipality being Mouza Mahesh, JL No. 15 under R.S. Dag no. 4801, 4800 under Khatian No. 1552, 1522, 2783 and the said land if not vacated by the complainant the Opposite Party cannot raise any multi-storied building over the same for which the Opposite party nos. 5 & 6 gave a proposal to the complainant to handover the land and in exchange thereof assurance was given to the complainant to provide him ownership shop of measuring 10 ft in length facing G.T. Road and 24 ft in length at the south west corner on the ground floor within six months from the date of handing over the vacant possession along with compensation per month Rs. 1000/ till the handing over possession of the newly constructed shop room.
Such proposal being accepted and agreed by the complainant he vacated and handed over the possession of the land to the Opposite Parties as a result of which the complainant and the opposite parties entered into an agreement which was authenticated before the notary on 02.04.2014 vide serial no. 52 dated 02.04.2014 and Rs. 1000/ was given to the complainant as compensation. A multistoried building was constructed over the said land but the new shop of B scheduled property of the said agreement was not handed over to the petitioner on different pleas resulting heavy loss and injury as well as damage for not carrying the business by the complainant. Ultimately the petitioner on 18.03.19 issued a registered letter through his Ld. Advocate to hand over the B scheduled property situated within A scheduled property and failure to comply with the terms and conditions of the agreement the complainant has been constrained to lodge the present petition before this commission for the reliefs claimed therein.
Defense case: The opposite parties contest the case by filing the written version denying inter-alia all material allegations leveled against them. Opposite parties submit that the statements made in Para2 of the complainant that Complainant will hand over the possession of his shop for construction of multi-storied building or in consideration Opposite Parties will provide a Ownership Shop in the newly constructed building measuring about 10’feet x 24’feet and Complainant agreed to accept said proposal or handover vacant possession of “B” Schedule Property are absolutely false and vague. There is no such agreement for giving ownership shop in favour of the Complainant, if any such agreement is found the same is forged and manufactured.
The Opposite parties made in Para 3 of the application that on 30/03/2014 Complainant entered into an agreement will Opposite Parties and said original agreement is in custody of the Opposite Party No. 5 and 6 are all false and baseless and the statements made in Para 4 and 5 of the application that Opposite Parties have not completed construction work within six months from the date of Agreement or Complainant was handed over ‘B’ Schedule shop as ownership out of consideration by the Developer out of Owner’s allocations are absolutely false, concocted and baseless and there is no question to handover shop room on ownership basis.
The Opposite parties also state that the Opposite Parties no. 1 to 5 being the owners of the Á’ schedule mentioned property entered into an agreement for development of the Á’ Schedule Property with the Opposite Party No. 6 and also executed one Power of Attorney in favour of the Opposite Party no. 6 and in that respect and Complainant was a monthly premises tenant under the Opposite Parties no. 1 to 5 in respect of One Shop Room within Á’ Schedule mentioned property and for the purpose of construction of multi-storied building the Complainant and Opposite Parties entered into an agreement dated 30/03/2014 for vacating the said shop room temporarily and completion of said construction Complainant will be provided new shop room on the ground floor from the owner’s allocation in the Á Schedule Property and Complainant will continue his business in the said shop at a tenant under the Opposite Parties as before.
The Opposite Parties also state that Complainant expressed his intention to the Opposite parties that he will not continue his business in the proposed newly constructed shop room and as such he took Rs.3,00,000/- only from the Opposite Party No. 6 on 30/08/2018 and surrendered his tenancy right in respect of the ‘B’ Scheduled shop room. The Opposite Parties also state that Complainant has instituted one civil suit and has not mentioned in the said suit about the registration of deed of sale in favour of the complainant in respect of “B “ Schedule Property and after that Complainant again suppressing the aforesaid facts illegally and with mala fide intention has filed this present case for some illegal gain and to put some financial pressure upon these Opposite parties and as such the above-mentioned Case should be dismissed with exemplary cost.
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires in the averments of the written version so it is needless to discuss.
Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument of both sides heard at length.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue number 1
In the light of the discussion hereinabove and from the materials on record it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (d) of the Consumer Protection Act 1986.
Issue number 2
Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding Rs. 20,00,000/- so far as Consumer Protection Act 1986 is concerned. So, this Commission has territorial as well as pecuniary jurisdiction to entertain the present case.
Issue nos.3&4 :
Both the issues are taken up together for the sake of convenience.
The complainant stated about his entry in an agreement for development of the land in question and both the parties have put their signatures and authenticated the agreement before the notary on 02.04.2014 vide serial no.52 and a copy of the same was handed over to the petitioner on the basis of which the petitioner handed over possession of his shop mentioned in schedule B in the agreement. It further appears that inspite of the final construction of the building the petitioner has been deprived of getting his shop room as mentioned I the schedule B of the petition which gives rise of the instant complainant for the reliefs as have been mentioned I the petition.
This Commission has taken into consideration the Notarial Certificate dated02.04.14 which refers to an (agreement for development) wherein at page 4 it appears that the present complainant was requested “ to surrender his rented premises for making construction of a multi storied building at the schedule A property and having pleased with the request the third party member has agreed to do so under certain terms and conditions for which all the parties have decided to enter into a written agreement “ some terms and conditions . Accordingly the present petitioner surrendered vacant possession of his rented premises as has been mentioned in B schedule of the petition of complaint. It was decided that the B schedule property will be handed over within six months from the date of construction of the building during this period as per agreement the petitioner will be given Rs. 1000/ per month by way of compensation for running his business at another rented premises .
On perusal of para 17 of the written version it transpires that both the parties entered into the agreement stating therein that as per the purported agreement dated 30.04.2014 the present petitioner vacated his present shop room temporarily and there is specific averment “ after completion of the said construction complainant will be provided new shop room on the ground floor from the owner’s allocation in the A schedule property and complainant will continue his business in the said shop as a tenant under the opposite parties as before.” There is also an admission that the opposite party no. 6 (Devire Real Estates Developers Ltd.) will pay Rs. 1000/ only to the complainant for compensation during the construction period.
The Commission has taken into consideration of the version stated in page 4 of the W/V that there is a denial of the petitioner about keeping shop room instead “he took Rs. 3,00,000/ (three lakhs only) only from the Opposite Party no. 6 on 30.8.2018 and surrendered his tenancy right in respect of the B schedule land mentioned shop room .”
There is a story about one civil suit being T.S No. 392/2018 claiming tenancy right in the B schedule property which appears to have been withdrawn there after but the same is not taken into consideration as the same has been withdrawn.
Fact remains about admission of allotment the premises mentioned in schedule B of the notarial certificate dated 02.04.2014 to the complainant in so many words and the above discussion relating to averments in the written version clearly and univocally admits about allotment of B schedule property to the complainant on completion of the newly constructed building. The averment about receipt of Rs. 3,00,000/ from the O.P.no-6 on 30.08.18 and surrender of tenancy right in respect of B scheduled mentioned shop room to O.P no-6 appears to be a story having no ground to stand on as the said receipt of Rs. 3,00,000/ has not been proved by filing any cogent and reliable evidence nor even by filing a scrap of paper to satisfy the commission about giving of Rs. 3,00.000/ to the complainant. It is a known fact that negative matter does not require any proof and as such the onus lies upon the O.P. no -6 to prove about delivery of rs. 3,00,000/ which is palpably absent giving rise to a go bye to the claim of O.P.no-6.On the contrary the claim of the complainant has been substantiated that he has been deprived of getting his tenancy right over schedule B of the property.
Both the issues are thus disposed of
Hence,
ordered
that the complaint case no. 73 of 2019 be and the same is allowed on contest but in part.
The O.Ps are directed to handover the B schedule shop room to the complainant and to execute and register the same by way of sale deed of the shop room within 45 days from date failing which the complainant is at liberty to take recourse to law. The cost of registration and execution of the said deed is to be borne by the petitioner.
The O.Ps do pay Rs. 25000/ towards unnecessary delay in handing over possession and execution of the schedule property and Rs. 25000/ towards compensation and also Rs. 10000/ as litigation cost. The consolidated amount shall be paid within 45 days from date failing which the complainant is at liberty to take recourse to law.
O.Ps are further directed to deposit Rs. 3000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly for the poor litigant.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.F, Hooghly
(Minakshi Chakraborty) (Debasis Bhattacharya)
Member Member
D.C.D.R.C., Hooghly D.C.D.R.C., Hooghly
