DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

North 24 Pgs., BARASAT

C.C. No./183/2019

Date of Filing                         Date of Admission                 Date of Disposal

 13.06.2019                                  04.07.2019                            20.06.2024

P R E S E N T                        :- Sri. Daman Prosad Biswas……….President.

                                       :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT /FINAL ORDER

          Complainants above named filed this complaint against the aforesaid Opposite Parties U/s 12 read with Section 13 and 14 of the Consumer Protection Act, 1986 against the aforesaid Opposite Parties praying for direction to hand over the possession to the Complainant as per agreement, payment of Rs. 2,31,200/-, damage amounting to Rs. 6,00,000/-, compensation amounting to Rs. 8,00,000/-, further compensation amounting to Rs. 2,00,000/-, litigation cost amounting to Rs. 50,000/- and other reliefs.

            He alleged that O.Ps are the owners of scheduled mentioned property and also the developer. He further stated that one 3-storied building was situation over the property mentioned in schedule ‘A’. Complainant and his brother were inducted as tenant in the year 1974 under the landlord Laxminarayan Dey and they entered into a tenancy agreement in respect of ‘B’ schedule property. Complainant legally paid the rent to the landlord and previously one Manik Chandra Das and thereafter one Aloke Kumar Das on behalf of said Laxminarayan Dey collected rent. Said Laxminarayan Dey is presently residing in another property at Motilal Street Lane. He used to collected the monthly rent thorough his aforesaid agent. Said Laxminarayan Dey used to receive the rent @ Rs. 200/- per month according to English calendar month. Subsequently said rent was increased to Rs. 500/- per month.

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Complainant is a businessman and he is a supplier of machinery parts and aforesaid Laxminarayan Dey allowed him and his brothers to the suit property to be used for their residential purpose as well as to carry out their business and the said business is the sole source of income of the entire family of the Complainant. Said Laxminarayan Dey lastly sent his agent for collection of rent on 08/11/2010 and thereafter said Laxminarayan Dey stopped to collect the monthly rent as well as issuing the bills / receipts.

            Complainant tried to contract with said Laxminarayan Dey but Laxminarayan Dey refused to take the rent from the Complainant and behaved harshly with him and also asked the Complainant to leave his house.

            Complainant came to learn that said Laxminarayan Dey tried to evict the Complainant from ‘B’ schedule property and then Complainant filed a suit for injunction in respect of ‘B’ scheduled property before the Court of 4^th Civil Judge (Jr. Division) at Sealdah being Title Suit No. 316 of 2011 and also moved an application under order 39 Rule 1 and 2 read with Section 151 C.P.C and Ld. Court after hearing the said application passed restrained order not to oust the Complainant from ‘B’ schedule property. During pendency of the said suit Laxminarayan Dey sold the said property to Opposite Parties without the knowledge of the Complainant. In the year 2013 Opposite Parties claimed that they are the owner of the property and Complainant has become the tenant under them. O.Ps informed the Complainant that they are developers and intend to develop the ‘A’ scheduled property and one agreement was executed on 24/10/2013 for developing of ‘A’ scheduled property which was drafted by Ld. Advocate R. N. Bhattacharya and document was notarized by Kamal Hasan on 31/10/2013. At present there is no existence of ‘B’ scheduled property since the O.Ps started to develop the said building into multi-storied building. Opposite Parties proposed to develop the property by demolishing the existing building and have intended to construct a new multi-storied building over the scheduled below property. A cluster of flats and shops on the basis of ownership in accordance with the building plan to be sanctioned by Kamarhati Municipality. Complainant and his sister – in – law were occupied the first floor and second floor of the aforesaid 3-storied building on rent. O.Ps decided to demolish the old structure and intended to develop the multi-storied building over the said property. Aforesaid agreement dated 31/10/2023 was executed in between Complainant and Opposite Parties. It has specifically mentioned in the said agreement that O.Ps after getting complete vacate possession of the existing old building in question from the occupants including tenant and thereafter they would demolish the same and shall construct multi-storied building as per sanctioned plan to be sanctioned by Kamarhati Municipality.

            It was further stipulated in the said agreement that O.Ps shall provide to the Complainant / tenant a flat measuring 500 sq.ft. carpet area on the first floor on ownership basis in the proposed multi-storied building as per Municipal Building rules and tenant was agreed to purchase the aforesaid proposed flat at the cost of Rs. 1200/- per sq.ft. from the Opposite Parties.

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It was further agreed that Complainant / tenant will pay Rs. 1,00,000/- at the time of starting construction work. At the time of registration and delivery of possession of the proposed flat Complainant will pay balance consideration amount of Rs. 5,00,000/-. As per terms and condition of the aforesaid agreement Complainant / tenant handed over the vacant possession to the O.Ps and shifted to another tenanted premises. It was specifically mentioned that construction will be completed within 30 months from the date of getting sanctioned building plan. If any intensional delay caused then O.Ps have to pay Rs. 200/- per day as compensation from the date of delay.

            The Complainant / tenant always ready and willing to purchase the proposed flat but he found that O.Ps have hidden intention to deprive the Complainant.

Thereafter Complainant sent a legal notice on 27/11/2018 to the O.Ps. O.Ps gave a reply on 13/12/2018. In the said reply O.P stated that due to some unavoidable circumstances they are unable to start construction work as yet which is nothing but gross negligence and latches on the part of the O.Ps.

Thereafter the Complainant sent another legal notice to the O.Ps on 08/01/2019 with a request to hand over the new flat which had to be delivered in lieu of prior possession of the tenanted premises after receiving the considering money as embodied in clause 3 of the aforesaid agreement. Complainant sent the said notices through his Ld. Advocate on 08/01/2019. Ld. Advocate for the O.Ps gave a reply on 25/01/2019 and requested the Complainant to withdraw the notice dated 08/01/2019 and to execute the deed of conveyance within 30 days. O.Ps have demolished the old building partly for the purpose of multi-storied building and to that effect one building plan was sanctioned from the Kamarhati Municipality but no construction work was started. Aforesaid illegal act and conduct of the O.Ps are amounts to breach of contract.

On 10/04/2019 Complainant requested the O.Ps to settle the matter but O.Ps desperately avoided the matter on 23/04/2019.

Thereafter, Complainant filed an application U/s 144 (2) Cr.P.C before the Executing Magistrate, Barrackpore on 24/04/2019 and on 10/04/2019 and got the order from the said Court. Due to the aforesaid act of the O.Ps Complainant filed the present case and prayed for aforesaid relief.

Thereafter, the Complainant filed this case and prayed for aforesaid relief.

Opposite Parties appeared in this case and filed W/V and denied the entire allegations

contending inter-alia that the case is not maintainable, complaint is misconceive, complaint is harassing and this Commission has no jurisdiction to entertain this complaint.

They further contended that Complainant being the tenant under Opposite Parties in respect of entire first floor of premises no. 55, Bhagavati Chatterjee Street, P.S. – Belghoria possessed the same.

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Opposite Parties after purchasing of the said property intended to erect a new building over the said plot after getting the sanctioned building plan from the Kamarhati Municipality.  For the said purpose it was necessary to vacate the existing old building by the occupants. Relating to the said matter one agreement dated 24/10/2013 was executed between the parties. As per said agreement Opposite Parties were agreed to provide a self contained residential flat with an approximate area of 500 sq.ft. on the proposed first floor in lieu of his tenancy and Complainant was agreed to purchase the same from the Opposite Parties at the construction cost only but no earnest money was ever been paid by the Complainant to the Opposite Parties. Opposite Parties were agreed to hand over the said flat within 30 months from the date of getting sanctioned building plan. Complainant handed over the vacant possession of his tenancy to the Opposite Parties and shifted his residence elsewhere. Opposite Parties paid monthly rent to the Complainant in terms of the aforesaid agreement but Complainant failed to produce any rent receipt to the Opposite Parties.

Due to various reasons the Opposite Parties unable to obtain the building sanctioned plan from Kamarhati Municipality inspite of their efforts as the land area is too small to get sanction from the concerned authority.

Opposite Parties by Advocate letter requested the Complainant to shift back at the aforesaid property as tenant but Complainant with malafide intension refused to do the same. In the 2^nd floor of aforesaid old building, there was a tenant namely Jyotsna Bothra, W/o late H. C. Bothra and she surrendered her tenancy in favour of the O.Ps on 24/10/2013. She prayed for dismissal of the case.

TRIAL

During Trial Complainant filed affidavit-in-chief. O.Ps filed questionnaire and Complainant gave answer.

O.P No. 1-2 also filed affidavit-in-chief.

DOCUMENTS

Complainants filed the copy of following documents at the time of filing of this case:-

1. Copy of agreement dated 24/10/2013…1 set……xerox.
2. Copy of Advocate’s letter dated 27/11/2018 issued by R. N. Bhattacharyya on behalf of Surendrachand Bothra….2 sheets….xerox.
3. Copy of Advocate’s letter dated 13/12/2018 issued by Anjan Chattopadhyay on behalf of Rakhi Das and Ors...2 sheets….xerox.
4. Copy of Advocate’s letter dated 08/01/2019 issued by Gargi Chakraborty on behalf of Surendrachand Bothra….2 sheets….xerox.
5. Copy of Advocate’s letter dated 15/01/2019 issued by Anjan Chattopadhyay on behalf of Rakhi Das and Ors...2 sheets….xerox.
6. Copy of complaint issued by Surendra Chand Bothra before the O/C Belghoria P.S……2 sheets…..xerox.
7. Copy of order sheet in c/w M.P. Case No. 1546 of 2019 (S.C.Bothra Vs. Rakhi Das)
8. Copy of petition of complaint U/s 144 (2) Cr.P.C.

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Complainant not yet filed BNA. O.P No. 1-2 filed BNA.

Decisions with Reasons:-

We have heard the Ld. Advocate for the Complainant. We have also heard Ld. Advocate for the O.P No. 1-2. Perused the petition of complaint, W/V filed by O.P No. 1-2, affidavit-in-chief filed by Complainant, questionnaire filed by the O.P No. 1-2, answer filed by the Complainant, affidavit-in-chief filed by O.P No. 1-2, documents filed by the Complainant and BNA filed by the O.P No. 1-2.

We find that Complainant corroborated his allegation in his affidavit – in – chief. On careful perusal of questionnaire and answer we find that no contradictions have came out.

On perusal of document dated 31/10/2013 we find that said agreement was executed in between the parties of this case, so neither of the parties cannot go behind the said agreement.

In para 6 of the said agreement it has mentioned that the landlords/ owners/ developers have requested the tenant to give up vacant possession of the demised premises for demolition and re-development.

We also find in para no. 7 of the said agreement that Complainant was agreed to vacate the tenancy of the old building with some conditions that landlords/owners/developers after getting the complete vacant possession on or before 03/11/2013 shall be entitled to demolish the existing building and shall construct a new building in the said place as per plan sanctioned by the Kamarhati Municipality which indicates that building plan has already been sanctioned by the concerned municipality.

We also find that in para no. 7 (2) of the said agreement that landlords/owners/developers were agreed to provide the Complainant a flat having 500 sq.ft. on the first floor on ownership basis in the new building.

We also find that in para 7 (3) of the said agreement it has mentioned that tenant / Complainant was agreed to pay the value of the said flat @ Rs. 1,200/- per sq.ft. in favour of O.Ps/landlords/owners/developers and tenant / Complainant was agreed to pay Rs. 1,00,000/- at the time of starting construction and he was also agreed to pay Rs. 5,00,000/- at the time of registration and issue of possession letter.

O.Ps in their W/V contended that they did not get the sanction of the building plan, so they had nothing to do and they requested the Complainant to go back at the property as tenant.

We find from the record that Complainant had already been vacated his tenancy right and also vacated the property and shifted back elsewhere. Now, he cannot be forced to go back to his tenanted premises in any manner. Tenancy right once surrendered cannot be accrued for the second time. Before execution of the agreement and before taking the vacant possession of tenanted premises it was for the Opposite Parties to think about the probable consequences.

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We also find from the record that before sanction of building plan O.Ps took the vacant possession of the tenanted premises from the Complainant. We failed to understand as to why the Opposite Parties took the vacant possession of the tenanted premises from the Complainant where building plan was not sanctioned by the competent authority, the reason best known to the Opposite Parties.

The aforesaid act of the Opposite Parties are nothing but instant of malafide intension and Complainant should not be blamed for the aforesaid malafide intension of the Opposite Parties.

In this situation, Opposite Parties cannot go behind the aforesaid agreement.

Complainant further alleged that O.Ps were agreed to pay the rent during the period of stay in the outside till the completion of construction of new building but O.Ps did not pay such rent and for that reason Complainant prayed for direction to the Opposite Parties to pay Rs. 2,31,200/- for shifting rent as per agreement.

Ld. Advocate for the Complainant cited a decision of Hon’ble N.C.D.R.C (vide Revision Petition No. 2374 of 2015) Vikram Aditya Chowdhury and Ors. Vs. Md. Sabiruddin dated 26/06/2018.

On perusal of the said decision we find that Hon’ble N.C.D.R.C

“Therefore, it was just like any other builder buyer agreement and the complainant was entitled to file the consumer complaint as a consumer. Rebutting the arguments of the learned counsel for the petitioner, the learned counsel for the respondent stated that as the tenancy is against a consideration, the tenant is a consumer. To support her arguments, the learned counsel for the respondent relied upon the following judgment:

Jadishbhai M. Sneth alias Soni Vs. Surbhih Relators India Pvt. Ltd. and another, II (2012) CPJ 525 (NC), wherein it is held:

This Commission in a number of judgments in the similar facts and circumstances has held that the tenant would be a consumer within the meaning of section 2 (I) (d) of the Act and complaint filed by him maintainable. In the case of Sinew Developers Ltd. & Ors. Vs. Madhav Rajaram Outurkar IV (2008) CPJ 215 (NC), dealing with the same question, this Commission held as under:-

As may be seen from Para No. 5 of the order of the State Commission to consider the meaning of Consideration it took note of the decisions in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, III (1989) CPJ 36 (SC), Sonia Bhatia Vs. State of U.P. & Ors., 1981 (2) SCC 585 and the discussion made in Vol. 17, Corpur Juris Secundum. Commission reached the conclusion that surrender of the tenanted shop by the Respondent to the Petitioners was consideration. Failure to provide shop admeasuring 250 sq.ft. by the Petitioners was deficiency in service. Pendency of suit instituted after the

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filing of complaint would not come in the way of respondent in securing possession of the shop through the consumer fora. Having heard Mr. Jaidka and consideraing the facts of the case, we do not find any illegality or jurisdictional error in the order of the State Commission warranting interference in revisional jurisdiction u/s 21 (b) of the Act.”

On careful perusal of record we find that aforesaid act of the Opposite Parties are nothing but deficiency in service.

On perusal of record we find that Complainant is the consumer and O.Ps are the service provider. The aforesaid act which done by the O.Ps are nothing but deficiency in service.

Having regard to the aforesaid discussion, we are of the firmed view that Complainant has able to established his grievance by sufficient documents beyond reasonable doubt and he is entitled to reliefs as per his prayer.

In the result, present case succeeds.

Hence,

                        It is

                                    Ordered:-

That the present case be and the same vide no. CC/183/2019 is allowed on contest against the O.P No. 1 & 2 with cost of Rs. 5,000/- (five thousand) to be paid by O.Ps in favour of the Complainant.

O.Ps jointly or severally are directed to hand over the flat in favour of the Complainant as per the agreement dated 24/10/2013 after taking Rs. 6,00,000/- (six lakhs) from the Complainant within 45 days from this day alternatively O.Ps are directed to pay Rs. 5,00,000/- (five lakh) as compensation in favour of the Complainant within next 45 days failing which Complainant shall have liberty to put this order into execution.

O.Ps jointly or severally are directed to pay Rs. 2,31,200/- (two lakhs thirty one thousand two hundred) in favour of the Complainant in terms of the aforesaid agreement dated 24/10/2013 as reimbursement of rent which he paid relating to shifting of his residence positively within 45 days from this day failing which the Complainants shall have the liberty to put this order into execution.

O.Ps jointly or severally are directed to pay further compensation amounting to Rs. 2,00,000/- (two lakhs) in favour of the Complainant for the harassment, mental pain and agony of the Complainant positively within 45 days from this day failing which the Complainants shall have the liberty to put this order into execution.

Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                  President