Judgment : Dt.31.1.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act 1986 by Smt. Snigdha Chakraborty alleging deficiency in service on the part of opposite party Sri Goutam Roy.

            Case of the Complainant is that a deed of lease was executed by and between the Calcutta Improvement Trust and the opposite party Sri Goutam Roy on 25.1.1993 in respect of a piece of land measuring about 229.14 sq.mtrs. situated at plot No.10A, Surplus land in Calcutta Improvement Scheme No.114B, out of original premises No.367, Prince Anwar Shah Road,  within local limit of Kolkata Municipal Corporation, P.S.-Jadavpur, Dist.- 24 Parganas (South), for a period of 99 years. After registration of the said deed of  lease the OP has mutated his name on record as lawful leasee and subsequently obtained a sanctioned building plan vide No.412 dt.30.3.1996 from Kolkata Municipal Corporation and constructed a multi-storied building thereon consisting several self contained flats and car parking spaces. The Complainant being intended to acquire a self contained flat on the basis of sub-lease hold right on the 3^rd floor of the said building approached the OP for the same and the OP being agreeable executed an agreement for sub-lease on 11.10.2002 in respect of entire 3^rd floor of the said building for an amount of Rs.16,00,000/- out of which the Complainant had paid Rs.15,50,000/- to the OP so far. It is stated by the Complainant that possession of the said portion of building has been delivered to her by the OPs but till date no deed of sub-lease has been executed by the OP, though the Complainant had tried her level best for execution and registration of the same. Accordingly, the Complainant has prayed for direction upon the OP to execute and register the deed of sub lease in respect of the subject flat after receiving the balance amount of consideration of Rs.50,000/- from the Complainant, to pay Rs.1,00,000/- towards compensation and Rs.30,000/- towards cost of litigation to the Complainant.

            Notice was served upon the opposite party but the opposite party did not  turn up. So, the case was fixed for ex-parte hearing vide order No.5 dt. 14.12.2017.

            The Complainant adduced affidavit-in-chief photocopy of lease deed dt.25.1.1993, agreement for sub lease dt.11.10.2002, letter lease deed from law officer, Kolkata Improvement Trust to Sri Goutam Roy dt.3.3.2015, Advocate’s letter dt.23.5.2017, etc.

Decision with reasons

            On perusal of the petition of complaint it appears that the Complainant entered into an agreement for sub-lease with the OP in respect of a flat at a multistoried building constructed within a plot of land, who is the lessee in respect of the said plot of land under the lessor the Calcutta Improvement Trust. The Complainant has alleged that the OP did not execute any deed of sub-lease in favour of her. Therefore, the point of dispute is related to lease and sub-lease.

            As per provision of Section 105 of the Transfer of Property Act, 1882, a lease is a transfer only of right to enjoy a demised premises, but unlike sale there is no transfer of ownership or interest in the demised premises to the lessee. Therefore, as the ownership of the demised premises is not transferred by lease, the disputes related to lease, does not come within the domain of the Consumer Protection Act since no element of section 2(1)(d) of the C.P.Act, 1986 exists therein.

            In such view of the matter, we are of opinion that the Complainant is not a consumer under the OP and, therefore, the instant case is not maintainable under the C.P.Act, 1986.

            In the result, the consumer complaint does not succeed.

            Hence,

ordered

            The Complaint case being No.CC/556/2017 is dismissed being not maintainable but without any order as to costs.