This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OPs landlord owners purchased land measuring 4 cottahs 4 chittacks 33 sq. ft. together with structure thereon known as premises no.67, Old Baithak Khana Bazar Road now 97, Baithak Khana Road, within ward No.37 of the K.M.C. under P.S. Amherst Street, Kolkata – 9 for constructing a new building of the scheduled below by demolishing the old structure and for new flats thereon and in this regard an agreement was executed on 13-09-2006 among Parimal Saha, Smt. Renu Saha(Owners) and Sri Mritunjoy Tapadar the present complainant.  The landlord negotiated with the tenant and allotted 468 sq. ft. covered printing press out of the proposed constructed area measuring about 1560 sq. ft. though at present there is 653 sq. ft. Printing Press out of covered area of 2176 sq. ft.   The owners and the tenant agreed to allow the owners to make new construction of building by demolishing the existing structure and building.

          As per said agreement owners shall handover the tenant a covered printing press room measuring 468 sq. ft. carpet area out of proposed constructed area of 1560 sq. ft. on the ground floor on the case premises and the proposed construction of the new building particularly the ground floor should be constructed within a period of 2 months and owners shall handover the possession to the tenant of the said printing press room measuring 468 sq. ft. carpet area on the ground floor of the said premises immediate after getting completion certificate from the K.M.C.

          It is further agreed that tenant shall pay a sum of Rs.200/- per sq. ft to the owners for purchasing the aforesaid covered area of 468 sq. ft. and the owners shall sale or transfer the said covered area and the undivided proportionate share of land and shall execute proper conveyance in favour of the tenant/purchaser.  The complainant shall bear the cost of conveyance and registration cost for such transfer of the undivided proportionate share of land and covered area of printing press.  The owners shall execute a registered conveyance for sale and transfer the said printing press room area and the proportionate share of land in favour of the tenant within 2 months from the handing over possession of the newly constructed printing press room area in favour of the purchaser.

          In fact, tenant purchaser had paid the owner landlord a sum of Rs.20,000/- only by way of advance money as well as the part payment of the total consideration money but during the period of construction owner shall allow the tenant to occupy the printing press of Smt. Ranu Saha to the extent of 175 sq. ft. and the tenant purchaser immediate after delivery of possession of the printing press room in the new building shall vacate and hand over possession to the said Ranu Saha free from all encumbrances and it is also agreed that since the date of delivery of possession of the said covered printing press, the tenant shall not be paid rent in respect of that tenanted portion and owners landlords shall provide a common bath and privy to the occupiers on the ground floor of the newly constructed building and the landlords shall provide electric wiring to the printing press of the tenant/purchaser and also allow to install telephone etc and there are other clauses also.  It is also specifically mentioned that tenant shall handover vacant possession of the existing space occupied by the tenant before three days of starting of demolition for the purpose of development of the present structure and construction of the new building.

          Fact remains OPs received a sum of Rs.10,000/- each totaling Rs.20,000/- by way of part payment on 19-09-2006 from the complainant of the consideration money in respect of said agreement though the OPs did not make the registration of the sale deed in spite of the demand of the complainant.

          Accordingly on 29-04-2008 complainant wrote a letter to the OP stating inter alia that OPs were well aware that an agreement was executed on 13-09-2006 between the complainant and the OPs to provide 468 sq. ft. carpet area out of the proposed constructed area of 1560 sq. ft. on the ground floor at case premises on 13-05-2008 the aforesaid letter of the complainant was replied by the Ld. Advocate of the OPs stating inter alia that the OPs delivered the possession of the allotted covered area to the complainant in compliance of the agreement dated 13-09-2006 as the balance consideration money was not paid and no step were taken for the required Deed of Conveyance for the purpose of evading the consideration money.

          But on 23-05-2008 the complainant replied the said letter of the Ld. Advocate of the OPs stating inter alia that the complainant denied to the effect that the OPs never delivered the possession of the allotted covered area to the complainant in compliance with the agreement dated 13-09-2006 and complainant demanded to hand over the complainant a covered printing press room measuring 468 sq. ft., carpet area from the constructed area on the ground floor of the aforesaid premises by the OPs as per clause 1 of the said agreement.  As soon as the total area of the covered printing room will be handed over to the complainant as per clause 3 of the agreement, the complainant certainly pay the balance amount.  But actually OP had not yet handed over the said 468 sq. ft area for printing press to the complainant though the complainant requested several times to hand over possession of the said 468 sq. ft. area on the ground floor of the newly constructed building also had not executed the sale deed though complainant is willing and right to purchase 468 sq. ft covered carpet area as per the said agreement dated 13-09-2006 and as because the OP did not hand over the possession of the said area in the newly constructed building complainant suffered and also husband suffering loss to the tune of Rs.1,50,000/-. In the above circumstances, complainant as consumer of the OPs for negligence and deficient manner of service and for not executing the deed and for not rendering the service properly the present complaint is filed for proper redressal.

          On the other hand, OP by filing written statement submitted complainant is not a consumer under the OP because purported agreement dated 13-09-2006 relied upon by the complainant is nothing but a simple agreement for sale for immovable property to the tenant and it shall be required to be stamped according to the value of the property in terms of the West Bengal Amendment of the Indian Stamp Act and stamp is admittedly insufficiently stamped and for which the said document cannot be used as collateral purposes.  Further it is submitted that purported agreement for sale is nothing but a product of a tenant receiving consideration for relinquishment of his existing tenancy.  The said fact is amply demonstrated from the fact that the tenant is liable to pay only a sum of Rs.200/- per sq. ft to the owner for purchasing the alleged covered area of 468 sq. ft. for a newly constructed and developed property in the Central Business District of Central Calcutta and the amount is extremely low which shows primary and main consideration for the said agreement was the relinquishment of tenancy of the old structure.  So, the purported contract is void in the eye of law and cannot be enforced and in the above circumstances, OP has prayed for dismissal of the case because there is no relationship of consumer and service provider in between them on the basis of above agreement so complaint should be dismissed with cost.

Decision with Reasons

On meticulous study of the complaint including the written version and after considering the alleged agreement dated 13-09-2006 it is found that this agreement is a negotiation in between the landlord and the tenant and admittedly the complainant is a tenant of the old structure under the OPs and in the said old structure under the OPs and in the said old structure there was a printing press of the complainant which was tented room of the complainant as tenant under the OP and it is admitted fact that owners OPs tried to construct a new building in place of old one by demolishing and for replacement of the complainant tenant for which agreement was executed so that in future OPs may not anyway debar the complainant to shift their printing press in the new constructed building and from the said agreement Clause 1 of the said agreement (Psage-3) it is admitted that landowner shall have to handover the covered area of 468 sq. ft. out of proposed constructed area of 1560 sq. ft. on the ground floor of the case premises and admittedly as per agreement during the period of construction of the present blocks complainant as tenant was allowed to keep the printing press in the room of the Ranu Saha to the extent of 175 sq. ft. so apparently after considering the present agreement it is clear that it is an agreement between the landowner and the tenant in respect of the tenanted portion.  Fact remains an agreement was executed on 13-09-2006 and as per Clause 2 (Page 3) of the agreement it is clearly mentioned that landlord shall handover the printing press room measuring 468 sq. ft. carpet area on the ground floor of the said premises immediately after getting completion certificate from the KMC but complainant has not mentioned on which date completion certificate of the KMC was received by the OP and fact remains it is a simple agreement in between the landlord and the tenant and fact remains complainants are occupying 175 sq. ft. as tenant after being replaced from the old tenanted room and the present occupied tenanted portion belonged to one of the landlord OP2 that means landlord tenant relationship in between the complainant and the OPs are still here and there and after considering the present agreement in between the landlord and the tenant, may be, there is such term for selling some area after handing over the tenanted portion but considering the date of execution of the said agreement it was clear that it is executed in the year 2006 and in fact complainant filed this complaint on 14-08-2013 that is long after 7 years though cause of action arose in the year 2006 or 2007 but at the time of filing this complaint complainant did not file an application u/s.24A of the C.P. Act for condonation of delay.  At the same time it is found that a tenant cannot be a consumer under the landlord even there is an agreement in between the landlord and tenant for selling the said tenanted portion by the landlord and after proper consideration of the agreement it is clear apparently it is a sale simplicitor not a housing construction.  Moreover, the complainants as tenant is occupying tenanted portion under OP2 the landlord.  So, under any circumstance complainant cannot be treated as a consumer under the OP on the basis of the present disputed agreement and apparently this agreement is a full expression of simple agreement for sale and in the light of the above observation we are convinced to hold that the present complaint is not maintainable in the eye of law as complainant is not consumer under the OP and at the same time the complaint is barred by limitation as per provision of Section 24A of the C.P. Act for which complaint fails.

Hence,

Ordered

That the case be and the same is dismissed on contest but without any cost against the OPs.