DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 48 OF 2019
DATE OF FILING: 28.3.2019 DATE OF JUDGEMENT: 5.12.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad & Jagdish Chandra Barman
COMPLAINANT : Sri Chandan Mondal, won of late Kanailal Mondal at Apurba Apartment, 307, Garia Station Road, P.S Sonarpur, now Narendrapur, Kolkata-84, South 24-Parganas.
O.P/O.Ps : 1. Sri Santosh Sardar, son of Sri late Khema Nanda Sardar at Garia Place, P.O Garia, P.S Sonarpur, Now Narendrapur, Dist. South 24-Parganas .
2. Sri Lalit Sardar, son of Sri late Khema Nanda Sardar at Garia Place, P.O Garia, P.S Sonarpur, Now Narendrapur, Dist. South 24-Parganas .
3. Amit Das, Proprietor of M/s Ideal Construction at 224B, Raipur Road ( Lotus Park), P.S Narendrapur, Kolkata-47, Dist. South 24-Parganas.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The subject land as described in Schedule A to the complaint belongs to O.P nos. 1 and 2. Complainant was a monthly tenant upon that land in a room admeasuring 600 sq.ft. A development agreement was struck between the O.P-1 , O.P-2 and O.P-3 and thereby the developer i.e O.p-3 agreed to raise a multistoried building upon A schedule property. A Tripartite agreement dated 12.12.2014 was also concluded among the complainant , the land owners i.e O.p nos. 1 and 2 and the developer i.e O.p-3 and by virtue of the said tripartite agreement, the developer as well as the land owners agreed to sell the tenanted shop room measuring 300 sq.ft to the complainant and also to pay a sum of Rs.3,50,000/- to the complainant. The room was to be provided to the complainant from the owners’ allocation in the newly constructed building. The complainant surrendered his occupancy right in the tenanted room in favour of the developer i.e O.P-3 in order to enable him to have a multistoried building constructed upon subject land of the owners. Construction of the said building was completed and the developer also delivered possession of a shop room to the complainant in the newly constructed building, as succinctly described in schedule B to the complaint, in September, 2018, though the possession was not delivered within the agreed time by the developer. Registration of the shop room was not done in favour of the complainant by the O.Ps. They have violated the terms of the tripartite agreement. Therefore, alleging deficiency in service on the part of the O.Ps, the complainant has filed the instant case , praying for registration of the deed of conveyance, compensation etc. Hence, this case.
The O.P -3 has not entered appearance to contest the case inspite of service of notice upon him.
It is O.P nos. 1 and 2 who has filed written version ,wherein it is contended inter alia that the case is not maintainable in law inasmuch as the complainant is not the consumer within the meaning of definition of Consumer Protection Act, 1986. According to them , the complainant is their tenant and a tenant can never be the owner of the subject shop room. The alleged tripartite agreement dated 12.12.2014 is a false, fictitious and fabricated document and they never signed the said document. That document has been brought into existence by the complainant in collusion with developer i.e O.P-3. The dispute between the complainant and them is not a consumer dispute; it is a dispute between the landlord and tenant. They have filed an eviction suit being T.S no. 72 of 2019 against the complainant before the Civil Court at Baruipur prior to the filing of the instant case and an ad interim temporary injunction has been passed against the complainant in that case by the Civil Court. It is further alleged in the written version by the O.Ps that the complainant also filed an M.P case no. 3554 of 2018 before the Executive Magistrate, Baruipur. This Forum does not have any jurisdiction to deal with a dispute which is of civil nature and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law?
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs, if any, as prayed for?
EVIDENCE OF THE PARTIES
Evidence is led by both the parties . BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
Already heard the submissions of Ld. Lawyers , appearing for the parties. Perused the petition of complaint, written version and the materials on record. Considered all these.
It is submitted on behalf of the O.Ps that the complainant is not a consumer under section 2(1)(d) , C.P Act, 1986. It is submitted on behalf of the said O.Ps that the complainant is admittedly a tenant under the O.Ps and there is relation of landlord and tenant between the complainant and the O.Ps. The O.Ps have filed a suit before the Civil Court for eviction of the tenant and, therefore, this Forum does not have any jurisdiction to deal with the dispute between the landlord and a tenant.
In the context of aforesaid submission of the O.Ps, it is to be seen whether the complainant is a consumer under Section 2(1)(d) of C.P Act, 1986. It is the case of the complainant that the development agreement dated 14.3.2014 was executed between the landowner and the developer . This Development Agreement goes undisputed. It is further submitted by the complainant that a tripartite agreement dated 12.12.2014 was executed by him with the land owners and the developers and by virtue of that tripartite agreement, he surrendered his tenancy in favour of the developers, so that the developer can raise a multistoried building upon the subject land in terms of the development agreement executed between the land owners and the developers. This fact of surrender of tenanted room by the complainant to the developer is not at all disputed. The acceptance of the said land/shop room by the developer before the commencement of construction of multistoried building is not also disputed.
Now the question arises whether a developer i.e O.P-3 is authorized to act as an agent on behalf of the land owners i.e O.P nos. 1 and 2 . Let us cast a glance at what is stated in this regard in the development agreement dated 14.3.2014 which also goes undisputed. Article 4.4 , page 13 of the development agreement reads as follows:-
“ xii. To let out and/otherwise settle all and/or any portion of the land or building or any part or parts thereof belonging to ourselves on rent, salami, premium, on monthly tenancy basis or lease and tenancies and to give eviction notices to any of the tenant/tenants and all trespassers and all other unauthorized occupier or occupiers”.
According to the provisions of Article 4.4 of the Agreement, the owner will execute and register a general power of attorney in favour of the developer or its nominee and in that power of attorney the above quoted provision is inter alia to be incorporated. No copy of power of attorney has been produced before the Forum. Inspite of that, we feel no difficulty to hold that power of attorney has been executed by the owners in favour of the developer , because until and unless it is done, no building plan will be sanctioned by the concerned municipality. The construction of the subject building has already been completed as goes the version of the parties herein. Regards being had to the above quoted clause of the power of attorney, we do say that the developer has been given all power by the words, “Otherwise settle all and/or any portion of the land or building or any part or parts thereof belonging to ourselves” by the land landowners. So,the developer can settle land in favour of any person on behalf of the land owners in exercise of the authority given to him by the general power of attorney.
In the instant case, tripartite agreement is signed by the developer and the land owners’ signatures have also been collected on the tripartite agreement as a matter of abundant caution. The Tripartite agreement is not challenged by the developer i.e O.P-3. Upon scrutiny ,it is found that this tripartite agreement has already been acted upon. It has been acted upon by both the complainant and the developer and also the land owners. Had it not been acted upon, the complainant would not have surrendered his shop room in favour of the developer and developer would not have accepted this surrender and would not have been able to raise any multistoried building upon the subject land. Not only this, there is a provision in the Tripartite Agreement that a shop room of 300 sq.ft is to be provided to the complainant on the ground floor of newly constructed building along with a sum of Rs.3,50,000/- to the complainant. The developer has also paid the said amount of Rs.3,50,000/- to the complainant and the memo of consideration is also filed on record ,which shows that the complainant has received Rs.3,50,000/- from the developer on different dates. So, it is found now that the tripartite agreement has already been acted upon by the parties. As soon as tripartite agreement was executed amongst the parties, the relation of landlord and tenant between the complainant and the O.P nos. 1 and 2 came to an end and a new relation started to take its flight from the date of execution of that tripartite agreement dated 12.12.2014. The relation between the land owners and the complainant took a new turn and the developer who is the agent of the land owners became the service providers of the complainant and the complainant became the consumer under section 2(1)(d) of C.P Act, 1986 .
Now what about the consideration in the agreement. The surrender of tenanted premises by the complainant in favour of the developer is sufficient consideration. The consideration need not require always to be in terms of money; it must be of some value in the eye of law. So, surrender of tenanted premises in favour of the developer is the valuable consideration of the tripartite agreement and the complainant is a consumer.
In Sinew Developers Ltd. Vs. Madhab Rajaram Outurkar, IV (2008) CPJ 215 (NC), it has been held that the petitioner who was a tenant would be a consumer within the meaning of Section 2(1)(d) , C.P Act, 1986 and the case by the complainant is maintainable in law. This decision of the Hon’bla National Commission has been affirmed in R.P nos. 2589 -2599 of 2008 titled Jagadishbhai M. Sneth alias Soni Vs. Surbhih Realtors India Pvt. Ltd. , decided on 24.4.2012 by the Hon’ble National Commission . It has been held therein that surrender of tenanted shop is a consideration to the agreement between the tenant and the developers and failure to provide shop room is deficiency in service on the part of the developer.
It has been contended on behalf of the contesting O.Ps that a civil suit is pending for eviction of the complainant and, therefore, this Forum does not have any jurisdiction to entertain the instant case.
We should recollect about section 3 of C.P Act, 1986, which confers an additional jurisdiction to the Consumer Forum to deal with the matter involved with deficiency in service. In the matter of deficiency in service, the Forum has got unique jurisdiction and this being so, it can never be said that the Forum has no jurisdiction to entertain a matter involving deficiency in service, when a civil suit is subjudice.
In this regard an observation of the Hon’ble Apex court of the country made in Bharathi Knitting Co. Vs. DHL Worldwide Express Courier decided on 9.5.1996 appears to be very much pertinent and the said observation is quoted herein below:-
“In an appropriate case where there is an acute dispute of facts necessary, the Tribunal has to refer the parties to original Civil Court established under the C.P.C or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms of the contract”.
Coming to the facts of the instant case, it is found that there is no acute dispute of facts between the parties. The facts are more in the nature of being undisputed. Those facts have been referred to in our discussion. Moreover, there is term in the tripartite agreement that complainant would surrender his tenanted premises to the developer and the developer, instead of it, would provide him a new shop of 300 sq.ft in the newly constructed building. In the light of the specific term in the tripartite agreement, it cannot be said that the parties should be refereed to Civil Court .
It has also been contended on behalf of the contesting O.Ps that the tripartite agreement is a false ,fictitious and fabricated one made by the complainant in collusion with the developer i.e O.p-3. It does not stand to reason that the complainant made collusion with O.P no. 3 to bring into existence the tripartite agreement. O.P-3 is the family friend of O.P nos. 1 and 2 and ,therefore, they i.e O.P nos. 1 and 2 entrusted him with the task of raising a multistoried building upon the subject land. So, we feel it very difficult to repose any confidence upon the averment of the land owners that the complainant made collusion with the developer in the matter of tripartite agreement. Further, the owners have also filed a development agreement in Bengali version on record, which appears to be quite different from the original development agreement dated 14.3.2014. In development agreement dated 14.3.2014, the developer agreed to give entire second floor to the owners in their owners ‘allocation. But the recital of Bengali development agreement, appears to be quite different. In this agreement, it is laid down that the developers would give the entire 3rd floor of the proposed multi storied building to the owners. But the fact remains that the possession of entire second floor has been provided to the land owners. Possession letter filed by the contesting O.Ps on record shows that they have taken the possession of entire second floor of the multistoried building. Does it not mean that the parties have acted upon the English Development Agreement dated 14.3.2014? Does it not mean that the Bengali development agreement is nothing but an afterthought of the land owners? We do say that the land owners are not straightforward persons; they are inscrutable persons. Mere averment that a particular document is false , forged ,fictitious and fabricated, does not prove by itself that the said document is fictitious and fabricated etc. Whenever a document comes into existence it is binding upon the parties and the party who alleges that it is not binding upon him will have to prove the circumstances under which he signed the said document. In the instant case, it is not stated anywhere in their evidence by the O.Ps as to what were the circumstances which led them to sign the tripartite agreement. There is no such circumstances brought on record by the O.Ps. According to the O.Ps, they have not signed the tripartite agreement. A mere perusal of the tripartite agreement by the naked eye reveals that the two land owners have signed the said agreement. There are the signatures of the two owners on the said agreement. If the owners did not sign the said agreement, they could have filed a petition before the Forum, praying for examination of those signatures by any hand writing expert. But no such petition has been filed by them before the Forum. Why? It is only for the reason that the cat will be out of the bag if those signatures are sent to the hand writing expert for examination. The contesting O.Ps have no courage to pray for expert examination of their signatures.
Regards being had to all these, we do say again that the Bengali development agreement and the plea taken by the land owners about the tripartite agreement are nothing but an afterthought. Be that as it may, the complainant is a consumer and developer who is the authorized agent of the land owners is a service provider of the complainant and this being so, the complaint is quite maintainable in law before the Forum.
Point no.2 & 3 :
Now to see whether there is any deficiency in service on the part of the O.P-3 i.e the developer. Possession of the shop room has been delivered to the complainant, though not within the time. Deed of conveyance has not been registered in favour of the complainant with respect to the shop room. Inability on the part of the developer to effect the deed of conveyance in favour of the complainant with respect to his shop room within the agreed time is undoubtedly a deficiency in service on the part of the developer. The complainant is ,therefore, entitled to get the deed of conveyance registered by the developers and the land owners. The complainant has also prayed for compensation for delayed delivery of possession of his shop room to him by the developer. The developer has paid Rs.3,50,000/- to the complainant in terms of the tripartite agreement in addition to delivery of possession of a shop room.
So, regards being had to these particular facts, we are not inclined to encumber the developer any more with the burden of compensation. But, it is true that the complainant has suffered a sort of mental agony, harassment due to delay caused in registration of the deed of conveyance. So, complainant is entitled to get compensation on this count.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 and 2 and decreed exparte against O.P-3 with a cost of Rs.10,000/-.
All the O.Ps are directed to effect registration of the deed of conveyance with respect to the sop room of the complainant in favour of the complainant within a month of this order, failing which, complainant is at liberty to execute the order through the instrumentality of this Forum.
Further, O.P-3 is directed to pay a sum of Rs.20,000/- as compensation to the complainant for mental agony and harassment caused to him within a month of this order, failing which the compensation amount and the cost amount will bear interest @9% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member Member
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 and 2 and decreed exparte against O.P-3 with a cost of Rs.10,000/-.
All the O.Ps are directed to effect registration of the deed of conveyance with respect to the sop room of the complainant in favour of the complainant within a month of this order, failing which, complainant is at liberty to execute the order through the instrumentality of this Forum.
Further, O.P-3 is directed to pay a sum of Rs.20,000/- as compensation to the complainant for mental agony and harassment caused to him within a month of this order, failing which the compensation amount and the cost amount will bear interest @9% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
