Dt. of filing- 17/04/2018

Dt. of Judgement- 26/02/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This is a consumer complaint filed by  Shri Bijay Shaw under Section 12 of the  Consumer Protection Act alleging deficiency in service  on the part of the  Opposite Parties namely (1) Sri Pranab Mukherjee (2) Shri Prabir Kumar Mukherjee (3) Smt.Pronomi Halder (4)  Shri Pankaj Kumar Roy (5) Shri Sumanta Roy (6) Shri Ashish Kumar Shaw.  

Complainant’s case in short  is that OP Nos. 1 to 3 being the joint owners of Municipal  Premises No. 111,  Banamali Naskar Road, now within  Parnasree  Police Station entrusted Partnership Firm  namely M/s. APSCON  represented by its  partners namely OP Nos. 4 to 6 to construct one multi-storied building on the land  of the said Municipal Premises No.111.They have  accordingly executed and registered one General Power of Attorney in favour of the OP Nos. 4 to 6.  By virtue of the General Power of Attorney , OP Nos. 4 to 6 negotiated with the existing tenants  of the said premises and agreed to re-install them  in the new building  after construction  including the complainant. Complainant   was a tenant of  OP Nos.  1 to 3  in respect of one shop room in the ground floor of the existing structure. It was settled as per the negotiation  with OP Nos. 4 to 6 that the  complainant shall be provided one shop room in the ground floor  measuring 158 sq.ft.  covered  area in the newly constructed building  on ownership basis by accepting  the service charge from the complainant as the consideration value  of the said shop room. An agreement accordingly was executed by OP  Nos. 4 to 6  with the complainant on 14.02.2004. Complainant, thus, paid Rs. 50,000/- only  to OP Nos. 4 to 6, the developer towards the cost of construction for the said shop room. Even though  complainant has been delivered  the possession of the shop room in the year 2008 but no possession letter issued in his favour. Since the delivery  of possession of the  said  shop room, OP have neither  issued a letter of possession nor have executed  and registered the deed of conveyance in respect of the shop room despite repeated requests. Legal notice was also  sent  by the complainant  dated 14.03.2018 through his Ld. Advocate but all in vain.  A reply was sent  by the OP  Nos. 1 to 3  on 28.03.2018 stating that they have already  assigned  the property in favour of  OP Nos. 4 to 6 and thus they were not liable  to execute and register the deed  in favour of the  complainant. So, the present case has been filed by the complainant praying for directing the  OPs to execute and register the deed of conveyance in favour of the complainant in respect of the shop room as described in the schedule, to issue  letter of possession  in respect of the said shop room in favour of the complainant, to pay  a sum  of Rs. 2,00,000/- as compensation and  litigation cost of Rs.50,000/-.

          Complainant   has annexed with the complaint petition, Copy of General Power of Attorney executed by OP Nos. 1 to 3 in favour of OP Nos. 4 to 6, the agreement  dated 14.02.2004 entered into between M/s. Apscon  represented  by OP Nos. 4 to  6 and the complainant, Copy of the notice  sent by the  complainant through his Ld. Advocate  to all the OPs. A reply sent on behalf of the OP Nos. 1 to 3 and also the reply of OP Nos. 4 to 6.

          OP Nos. 4 to 6  have contested  the case  by filing the W.V. contending inter alia that the  OP Nos. 1 to 3  being the joint owners of the scheduled premises  had agreed that they will  sell and  transfer  the said premises  in favour of OP Nos. 4 to 6 before starting  construction  work but subsequently OP Nos. 1 to 3 had changed  their decision and  did not sell  the said premises in favour of the  OP Nos. 4 to 6. OP Nos. 4 to 6 have  constructed   the building on the basis of  General Power of Attorney but they are unable to execute and  register  deed of sale in favour of the complainant as  constituted attorney,  for want  of  PAN Card and Aadhar Card of OP Nos. 1 to 3. Thus, the OPs  have prayed for dismissal of the  case against them.

          On perusal of the  record it appears  that OP Nos. 1 to 3  did not take any step  inspite of service of  notice and so  vide order dated  16.07.2018, case  was directed  to be proceeded exparte against them. During the course of the evidence, complainant and the OP Nos. 4 to 6 filed  their respective evidences followed by questionnaire and reply thereto. Ultimately,  written argument has been filed  on behalf of the  complainant  and also by the OP Nos. 4 to 6.

          So, following points require determination :

1. Whether the case is maintainable  in its present form and in law.
2. Whether the complainant is entitled to the relief as prayed for ?

Decision with reasons :

     Both these points are taken up  together  for discussion in order to  avoid repetition. The claim of the complainant is that  he was a tenant  in respect of the  shop room in the ground floor of the building and an agreement was executed  by the OP Nos. 4 to 6 with the complainant that  we will be provided one shop room in the ground floor of the newly constructed  building  on ownership basis by accepting  the service charge  from the  complainant as the consideration value of the said shop room. The documents filed in this case  reveals that  General Power of Attorney was executed by OP No.1 to 3 the owners  in favour of  OP Nos. 4 to 6  being Partners of  M/s.  Apscon.  OP Nos. 4 to 6 were  authorised  by the said Power of Attorney  to negotiate  with the  tenants  and to settle all the  matters relating  to existing tenancy and to do all such acts  for proper administration  of the property. They were also authorised  to sell  or transfer with the intending  purchasers.

     The agreement  dated 14.02.2004,   is the agreement  entered into between the complainant and the said Partnership Firm namely M/s. Apscon being represented  by its partners  OP Nos. 4 to 6 in this case. In the said agreement, OP no. 4 to 6  in their capacity as constituted attorney, agreed to re-install  the  tenant in their original possession on ownership basis. It is also  stated in the agreement  that service rendered by the tenants towards the shifting  temporarily  from the tenanted  premises to other portion  to facilitate  the landlords for construction of the proposed  building was  assessed  of Rs. 50,000/- which is the service charge of the tenants and the same  shall be considered  as the  consideration value of the shop room. So, the agreement is evident that OP Nos. 4 to 6  agreed  to re-install the tenants  and the consideration  was the services of Rs.50,000/-  as  assessed but the question in this case is whether  the present  complainant is solely entitled  to the said shop room as agreed by and between the  parties to the agreement dated 14.02.2014. It is apparent  that in the agreement there are two persons who entered into an agreement as tenants. Both being sons of late laxmi Shaw. The complainant has filed  the original agreement also and it appears that not only  present complainant Bijay Shaw but one another person’s name  was also mentioned but his named has been erased by whitener, for the reasons best known to the complainant. Two persons  were the tenant is also  evident from the recital of agreement itself. Agreement  was in joint name  is very  clear as it  is specifically stated  in the agreement at page  2 that  “both by faith Hindu” and  “both at present  residing  at  34, Bonomali Naskar Road”. Other person was also the tenant along with the present complainant  is also  evident from  the reply sent by  OP Nos. 4 to 6 dated 28^th March, 2018 through their Ld. Advocate. It is stated  therein in paragraph – 3   of the reply “ According to the said above mentioned agreement the Vendors collected amount from the then existing  tenants Bijay Shaw and Raghunath  Shaw till payment of consideration money by the purchaser to the Vendors”. So, other person namely Raghunath Shaw was the tenant  along with Bijay Shaw  the present complainant, in respect of the present shop room. The reply dated  28.03.2018 sent by the Ld. Advocate  for OP Nos. 1 to 3 is filed by the complainant and as such relied upon by the complainant. But for the reason best known  to the complainant, said Raghunath Shaw has not been made party  in this case. There cannot be  any denial  and dispute  if he was party to the  said agreement  then he is a necessary party in this case and thus  this complaint is bad for non-joinder of necessary party.

      It may also be pointed out that the  agreement  dated 14.02.2004 between the complainant and the said Raghunath Shaw  was entered into  with M/s. Apscon  a partnership firm being represented  by its partners  namely  OP Nos. 4 to 6. But the  said M/s. Apscon has not been  made a party  in this case. OP Nos.4 to 6  have only been made  as party being partners  but not the firm  M/s. Apscon. So, in view of the above made discussions, complaint is not maintainable in its present form and thus,  liable  to be dismissed. For the reasons highlighted above, there is no point in entering into discussion on the merits of the case.

These  points are thus answered  accordingly.

Hence,

                               Ordered

        CC/207/2018  is dismissed on contest against the  OP Nos. 4 to 6 and exparte against OP Nos. 1 to 3.