JUDGEMENT

          Complainant by filing this complaint submitted that in respect of the case premises situated at Municipal Premises No.6, Christopher Road, Kolkata-700014, P.S.-Beniapukur for a period of 99 years in consideration of the premium and the rent to be paid by the said Ramendra Nath Das and terms and conditions to be observed and performed by Ramendra Nath Das and he was in possession of the land of the said premises on the basis of Deed of Lease dated 04.06.1991 executed by Madan Mohan Mullick and others and by that deed of lease Ramendra Nath Das was given such right to assign the leasehold interest in respect of the land of the said premises in favour of intending assignee and said Ramendra Nath Das was further given right under the said Deed of Lease dated 04.07.1999 to execute agreement for development of the land of the said Premises by construction of a new masonry building and structures upon demolition of the existing dilapidated structures as was in existence over the land of the said premises.

          Thereafter Ramendra Nath Das on 06.06.1991 entered into a Joint Venture Agreement with Ravindra Sonpal and Niraj Nonpal to develop the land of the said premises on 26.06.1999 and in terms of the said Development Agreement/ Joint Venture Agreement, it was agreed upon by and between the said Ramendra Nath Das, Ravindra Sonpal and Niraj Sonpal that Ramendra Nath Das will assign his right, title and interest in the said premises in respect of aggregating to 65% in the said demised premises in consideration of Rs.10,000/- to be paid by said Ravindra Sonpal and Niraj Sonpal in equal ½ share of Rs.5,000/- each and after obtaining sanctioned plan of Kolkata Municipal Corporation and as per Development Agreement and Joint Venture Agreement dated 26.06.1991 constructed a masonary building and got their allocation portion 65% of the total constructed area on the land of the said premises and accordingly they made garage spaces/car parking spaces also on the ground floor of the newly constructed building along with other allocation and op after getting allocation of the garage/car parking at their right to assign their interest over the said garage spaces in favour of the intending assignees.

          Further complainant purchased one self-contained flat on the 1^st floor of the said premises and has been in possession and thereafter complainant intended to get one car parking space that is on the ground floor i.e. G-5 and for which they approached to the op.  Thereby op agreed to transfer the car parking space on the ground floor of the said building in favour of the complainant and accordingly one Memorandum of Understanding (MoU) was executed in between the complainant and the op and through the said MoU, the op agreed to assign the said garage space on the ground floor being car parking space No. G-5 on the ground floor of the said premises by accepting from the complainant the sum o Rs.15,000/- as confirmation charges on the date of execution of the said MoU on 30.09.2003.

          It was agreed upon that the balance amount of Rs.5,000/- shall be paid by the complainant to the op before Registration of the Deed of Assignment in favour of the complainant and complainant took all responsibility and to bear all legal costs and charges arisen as a consequence of the said MoU dated 30.09.2003 and considering the complainant was put into possession on the very date of execution of the said MoU in respect of garage on the ground floor of the premises.  So, the said MoU was therefore a concluded contract and the terms and as per conditions of the policy op is bound to execute the said MoU and since 30.09.2003 complainant was already willing to perfom his part with all obligations as are required to be performed under the said MoU dated 30.09.2003 including the payment of balance consideration of Rs.5,000/-.

          But complainant for last 10 years requested the op again and again to receive the balance amount of consideration of Rs.5,000/- and to execute and register a Deed of lease in respect of the said car parking space in favour of the complainant, but op refused to do and for which complainant sent letters of Lawyer and asked him to discharge his liability as per contract but they did not respond for which for implementation of the said MoU present complaint is filed praying for relief.

          On the other hand op by filing written statement submitted that the present claim is completely barred by limitation and not entertainable in the eye of law and further submitted that the entire allegation is false and fabricated and op has submitted that at the very initial stage complainant expressed his intention to purchase of a self-contained flat at the 1^st floor of the premises No.6 but subsequently after obtaining the possession of a self-contained flat on the 1^st floor of the case premises op did not show any interest to purchase the garage space, nor paid the amount of the garage to the op since 2003, nor expressed his intention to the op for payment of balance consideration money and entire allegation is false and fact remains since execution of the said MoU complainant never intended to execute the said Deed of Lease and fact remains complainant is not in possession in the said garage and complainant never got any possession on the garage and garage is being used by someone else for the purpose of parking his car in presence of the complainant and also in that event the complainant never lodged any complain to the op nor to any competent authority and that the alleged allegation that he was in possession in respect of the garage is absolutely false and denied and after lapse of 10 years with a ulterior motive and unlawful gain complainant appeared before this Forum when his requirement for car parking space is found by the complainant and in fact in the eye of law that MoU had no legal foundation and after lapse of 10 years being an unregistered document has not created any right to the complainant  and practically the said MoU dated 30.09.2003 is completely barred by limitation and for which the present complaint should be dismissed.

                                                  Decision with reasons

          In fact in this case complainant prayed for directing the op to execute the Sale Deed on the basis of MoU dated 30.09.2003.  But op has challenged the validity of the said MoU in view of the fact that MoU was not registered at the relevant time and on the basis of the said MoU complainant was not in possession.

          After hearing the Ld. Lawyers of both the parties and also the content of the MoU dated 30.09.2003 it is clear that as per MoU Niraj Sonpal has nominated Mr. Rupen Dey as assignee of the covered car parking space pertaining to the Garage Unit Space No. G+5 on the ground floor of the building named as Jagannath Apartments at premises No.6, Cristopher Road, Kolkata-700014 and Rupen Dey has agreed to bear all the cost of registration, documentation, legal expenses and other miscellaneious charges and expenses and also agreed to pay Rs.15,000/- as confirmation charges out of which a sum of Rs.5,000/- remains outstanding and same should be paid before registration of the Deed of assignment in favour of the Rupen Dey and it has been further agreed by Mr. Rupen Dey that he shall take full responsibility and bear all legal costs and charges for any dispute arising as a consequences of this MoU, Mr. Niraj Sonpal shall not be responsible monetarily, legally, or otherwise on account of whatsoever reason resulting as a consequence of this MoU and Mr. Rupen Dey shall keep Mr. Niraj Sonpal indemnified against any liability of whatsoever nature.

          Considering the present MoU it is clear that since 30.09.2003 and till filing of the present complaint by the complainant on 24.06.2013 complainant has no grievance, no allegation against the op and complainant even last 10 years did not take any step though cause of action arose after execution of the MoU.  However from the body of the MoU it is clear that it is the responsibility of the complainant for registering such assignment deed.

          Truth is that as per Deed Ramendra Nath Das was the lessee as per order of the Hon’ble High Court dated 30.10.1998 and it is specifically mentioned in the indemnified deed dated 06.07.1991 that Ramendra Nath Das the leasee shall have to execute any assignment deed in favour of Ravindra Sonpal and Niraj Sonpal in respect of 65% of share of the entire premises and no doubt the said indenture deed was registered.  But after execution of the said deed and after completion of the entire construction no assignment deed was made by Ramendra Nath Das in favour of the Ravindra Sonpal and Niraj Sonpal.

          At the same time it is proved that complainant has been residing in the said apartment since 2003 and if complainant had his grievance against the op in respect of the present disputed MoU in that case complainant cause of action arose in the year 2003.  But present complaint is filed after lapse of 10 years i.e. in the year of 2013 and in between the period for implementation of the MoU no case was filed by the complainant for any relief so there is no question of cause of action arose in the year 2013 as claimed by the complainant.  But it is created for the purpose of the complaint.

          Moreover complainant has also failed to show by any cogent evidence that Rs.15,000/- as paid by the complainant to the op was consideration and as per MoU all liability was with the complainant and it was  complainant’s duty to ensure for execution of assignment the deed in respect of car parking space but that has not been done by the complainant.  Then it is the laches of the complainant.  Moreover within last 10 years complainant has not appeared before any Civil Court and fact remains the present MoU is in respect of car parking space for execution of assignment deed not for sale not for transferring the right etc and fact remains original lessee Ramendra Nath Das did not execute the deed of assignment in favour of Sonpal Brothers.

          So, in view of the provision of TP Act right of action is not irresistable when every right against one of the instant attach to the property or contract assignment.  Moreover in this case complainant has failed to produce any paper to show that he got possession on the basis of the said MoU.  So, as per provision of law if MoU is executed and if it is not implemented within 3 years from the date of execution of MoU as per provision of specific relief Act in that case it is barred by limitation and no doubt in the present case also it is found complainant did not appear before any Forum or Civil Court for implementation of the MoU and at the same time as per provision of CP Act the present MoU does not cover the provision of the CP Act in view of the fact the present car parking space does not come under the purview of definition of housing construction and in fact it is no doubt one kind of license granted by the original lessee to assignee and truth is that the said MoU does not create any right of the complainant in the said car parking space and it is neither sub-lease nor any transfer of right and without a registered deed of assignment complainant cannot get any sort of relief and particularly the present case as per MoU complainant is not the consumer of the op when the present MoU does not create any contractual liability in between them when the op never got any right or assignment by their lesee Ramendra Nath Das by registering the deed.

          Further as per provision of Section 108 of the TP Act assignment by the lesee without lessor consent is not the valid assignment.  But in this case it is found that practically lessee is Ramendra Nath Das.  Op is not lessee, no assignment deed is yet executed by original lesee Ramendra Nath Das in favour o Ravindra Sonpal and Niraj Sonpal.  Then as per law present op had no right or legal right to execute any assignment deed to the present complainant.  Anyhow the op as assignee has also no legal right to assign and complainant has failed to prove that also and in the light of the forgoing reasons we are convinced to hold that the MoU dated 30.09.2003 executed in between the parties have no legal force in the eye of law as it is completely time barred and at the same time as per MoU dated 30.09.2003 complainant is not a consumer under the op and further as per original indenture in between the lessee and the land owner dated 06.07.1991 present op cannot claim any right to assign any part of property in favour of the complainant and no such document is produced by the complainant to show that.  So, the present complaint is barred by u/s 24A of CP Act and at the same time complainant has failed to prove his status as consumer by any means and moreover the present complaint is not related to any contract in respect of any housing construction.

          In the result the complaint fails.

          Hence, it is

                                                                  ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the ops on the ground that the present complaint is not maintainable as same is barred by limitation and so the prayer for condonation of delay u/s 24A of CP Act is also hereby rejected on contest.