Date of filing : 05.06.2018

Judgment : Dt.27.02.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Tridib Roy alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Paresh Chandra Das, (2) Sri Naresh Chandra Das and (3) Sri Pankaj Das

            Case of the Complainant, in short, is that OPs are the owners of the land and structure at premises No.1, Purba Barisha Govt. Colony, P.S. & P.O.-Thakurpukur, Kolkata-700 063. Complainant was a tenant under the OPs. There were many other tenants in the said premises, apart from the Complainant. OPs requested the tenants to vacate the existing possession in exchange of new re-constructed portion. An agreement was entered into with the OPs by the Complainant to purchase a shop room measuring about 75 sq.ft to 80 sq.ft. on the ground floor of the said premises. Complainant shifted his tenancy from the site and temporarily shut down his business for the said construction work by the OPs. But OPs failed and neglected to handover the possession of the shop room in terms of the agreement dt.1.1.2016. So, the present complaint has been filed praying for directing the OPs to take step for providing the possession of the shop room on the ground floor as per agreement, to pay compensation of Rs.2,00,000/-, Rs.75,000/- for cost and expenses and further Rs.2,25,000/- totaling Rs.5,00,000/-.

            Complainant has annexed with the complaint – copy of the development/reconstruction agreement dt.1.1.2016, copy of another agreement showing acceptance of payment dt.19.6.2016, copy of rent receipts and a tenancy agreement entered into between the Complainant and the predecessor-in-interest of the OPs.

            OPs have contested the case by filing written version denying and disputing the allegations made by the Complainant contending inter alia that the agreement dt.1.1.2016 is devoid of any time limit. Moreover, in the said agreement one of the witness has put his signature on 2.2.2016 and thus the purported agreement is void in the eye of law. So, the OPs have prayed for dismissal of the case.

            During the course of evidence, parties have filed their respective affidavit-in-chief followed by filing questionnaire and reply thereto and ultimately argument has been advanced by both parties.

So, the following points require determination :

1) Whether there has been any deficiency in service on the part of the OPs?  

2) Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Both the points are taken up together for a comprehensive discussion.

It is claimed by the Complainant that he was a tenant and was inducted by the predecessor-in-interest of the OPs namely Manindra Nath Das and to this effect copy of the tenancy agreement executed between Manindra Nath Das, since deceased and the Complainant has been filed. Complainant has also filed a copy of development or reconstruction agreement which appears to have been executed on 1.1.2016. On perusal of the said agreement, it appears that it has been specifically agreed between the Complainant and the OPs as owners that the existing premises will be reconstructed and the construction will be completed within five months. As per terms of the agreement, the owners will not pay any shifting charge to the Complainant a tenant under them. It has also been specifically agreed in the said agreement by and between the parties that on payment of the agreed consideration price, the owners being the 2^nd party in the agreement shall execute and register the deed in favour of the Complainant. The Consideration price was to be paid within three installments. Even though in the said agreement, there is no specific mention about the consideration price settled by and between the parties but the Complainant has filed another copy of agreement appears to have been executed by the opposite parties, wherein the consideration price has been stated as Rs.1,75,000/-. Said amount has been paid in three installments as agreed in the agreement dated 1.1.2016. Payment has been acknowledged by Paresh Chandra Das who is the OP No.1 in this case. So, the total amount has been paid by the Complainant towards the shop room as agreed to be handed over to the Complainant by the OPs. But the said shop room has not been handed over as claimed by the Complainant in spite of payment of the sum as agreed. The only contention which has been raised by the OP is that the agreement also bears signature of one witness which is dt.2.2.2016 and so the agreement is not valid. But on a careful perusal of the agreement, it appears that it bears the signature of all the OPs, the Complainant and the two witnesses and they all have signed on 1.1.2016. However, even if the contention of OPs is accepted that one of the witnesses has signed on 2.2.2016 that does not make the agreement invalid specially when OPs have not challenged the signatures appearing in the agreement. Ld. Advocate appearing for the OPs has also argued that the agreement is in non-judicial stamp paper and unregistered one and so not enforceable. In this context it may be mentioned that under the Provision of Consumer Protection Act, person seeking the relief must be a consumer and should have hired some service or purchased goods for consideration. These are the two requisite elements. The agreement dt.1.1.2016 is very categorical that OPs promised to reconstruct the premises where Complainant was a tenant in respect of a shop room and on their assurance, he shifted and agreed to purchase the shop room in the newly constructed premises. So, the argument that the agreement is in a non-judicial stamp paper and it is not enforceable, merits no consideration and thus rejected. It is further argued on behalf of OPs that in reply to the questionnaire being No.5 of the OPs, Complainant has stated that he was in possession of the plot specified in the schedule. So, since he is already in possession of the property, question of delivery of possession, does not arise. But on a careful perusal of the evidence of the Complainant, reply and other materials, said reply to the questionnaire No.5 cannot be read in isolation. It is a settled principle of law that the evidence as a whole has to be read. Complainant has categorically stated in reply to question No.20 that he was not in possession of the disputed land. It is specific case of the Complainant that he has not been handed over the possession of the shop room by the OPs as per the agreement entered into between them. Moreover, no document has been filed by the OPs that the possession of the shop room was handed over to the Complainant. Neither any specific date has been mentioned as to when the possession was handed over. So, in such a situation claim of the Complainant that he has not been handed over possession of the shop room in spite of the payment of the consideration amount, cannot be disbelieved.

It will not be out of place to mention here that the property in dispute is a shop room measuring about 75 sq.ft. to 80 sq.ft. on the ground floor of the premises. There cannot be any denial that the shop room is purchased for the commercial purposes. Complaint is silent about any recital that the same has been purchased for the purpose of earning livelihood by the Complainant. But, it may be mentioned here that whether the transaction is for commercial activities, has to be considered from the fact whether it is a large -scale commercial activities or it is purely for earning livelihood. Same is a question of fact which has to be decided on a case to case basis. In this case, it is apparent that the Complainant was a tenant in respect of a shop room under the predecessor-in-interest of the OPs and thereafter under the OPs after the death of their father. There is no material before this Forum that the Complainant is running the said shop room in large-scale engaging staff to run the business. OPs have also not stated that the Complainant was running the business in a large-scale by engaging the employees. So, in view of the discussions as highlighted above, Complainant is entitled to the possession of the shop room as per the agreement dt.1.1.2016 as prayed. Complainant in this case has prayed only for possession and compensation. Since there has been delay in delivery of possession, Complainant is also entitled to the compensation. An amount of Rs.40,000/- as compensation would be justified.

            Hence

                         ordered

            CC/328/2018 is allowed on contest. OPs are directed to deliver the possession of the shop room as agreed in favour of the Complainant in terms of agreement dt.1.1.2016 within three months from this date. They are further directed to pay an amount of Rs.40,000/- as compensation and litigation cost of Rs.10,000/- within the aforesaid period of three months.