This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainants.

The case of the complainants’ in short is that the petitioner No.1 was the tenant under the opposite parties in respect of a shop room measuring about 336 Sqft. (medicine shop) at ground floor in holding No.128, B.B.D. Road, under Uttarpara-Kotrung Municipality, Dist.-Hooghly.  An agreement was made between the complainants and opposite parties on 16.11.2012 for construction of multistoried building. The complainants gave up their possession (shop room) to the opposite parties and vacant the possession of the shop room for construction.

In the agreement dated 16.11.2012 it was settled that the complainants vacate the possession of their medicine shop room and opposite parties agreed to give the peaceful vacant possession to the complainants on ownership basis in the same position i.e. 336 Sq ft (318 Sq ft for shop room and 18 Sq ft for latrine and privy) in the ground floor.  As per agreement the opposite party completed the multistoried building but not completed the remaining small works of the said ground floor shop room. The complainants repeatedly requested the opposite parties to complete the shop room and hand over the possession of the shop room and the privy but the opposite parties did not hand over the possession.

As per agreement the opposite parties did not pay the money to the complainants towards compensation of loss of earning of Rs. 15,000/- per month from January, 2014 and Rs.25,000/- per month from April, 2014 though it was mentioned in para-5 of the agreement.  So, the opposite parties have defaulted to make payment of Rs.6,70,000/- to the complainant.

The complainants sent notice to the opposite parties through their Ld. Advocate for delivery of the possession (shop room) along with arrear pay i.e. Rs.6,70,000/- as per agreement dated 16.11.2012 within 15 days from the date of receipt of notice.  But the opposite parties failed to hand over the possession and make registration thereof. 

Finding no other alternative the complainants filed this case with a prayer to direct the opposite parties to complete the construction of B Schedule shop room property as per terms of the agreement and hand over the possession of the B schedule shop room in the ground floor and to execute and register the sale deed in favour of the complainants, to pay compensation of Rs.50,000/- for harassment and to pay arrear amount of Rs.6,70,000/- to the complainants, to pay litigation cost of Rs.30,000/-.

The opposite party No.1, 2 & 3 contested this case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that complainants are not the tenant under them and the complainants never paid any rent in favour of opposite party No.1, 2 & 3 and question of determination regarding tenancy of the complainants is not fallen within the purview of this Ld. Forum rather it is within purview of Civil Court having jurisdiction.  It is also to be mentioned that the complainants failed to deposit any documents and/or papers regarding establishment of their tenancy right including rent bill in favour of complainants issued by the opposite parties.

The complainant filed photocopies of sanctioned plan, agreement paper dated 16.11.2012, printed colour photos of the shop room, evidence on affidavit and brief notes of argument.  The opposite parties also filed evidence on affidavit, brief notes of argument and some citations of Hon’ble Supreme Court.

 Both the complainants and opposite parties filed evidence on affidavit and written notes of argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants are the ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainants?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants are the ‘Consumers’ of the opposite party?

From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein are the consumers of the opposite party, as the complainants being the tenants were running business in the schedule mentioned property and entered into agreement with the opposite party to construct multistoried building and the complainants will get their share as per agreement, so they are entitled to get service from the opposite party as consumers.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.7,15,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.        

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?

The complainants filed evidence in chief which is supported by affidavit.  In their evidence the complainants stated that petitioner No.1(a) to 4 are the sons and daughters of the original tenant petitioner No.1. The opposite parties No.1 to 3 entered into an agreement with the petitioners No.2 to 4 on behalf of the deceased petitioner No.1 in making a multistoried building over the said property on 16.11.2012 with the terms and conditions therein.  In the said agreement dated 16.11.2012 it was agreed that petitioner would vacate the possession of the medical shop room for the construction of the multi-storied building to be made by the opposite party No.1 to 3.  It was also agreed that opposite parties will give a peaceful vacant possession on ownership basis in the same position i.e. 336 Sq ft in the ground floor (318 Sq ft for shop room and 18 Sq ft for privy). The opposite parties also agreed to give road frontage of 8½ ft of the shop rooms.  According to agreement the petitioners vacated their possession by removing the furniture, medicine etc. The opposite party did not complete the remaining small work of said ground floor and inspite of repeated requests they did not hand over the shop room to the complainants.  The complainants also stated that as per agreement in para-5, the opposite parties did not pay any money towards compensation of loss of earning i.e. Rs.15,000/- per month from January, 2014 and Rs.25,000/- from April, 2014. The opposite parties have defaulted in making payment of Rs.6,70,000/- to the complainants. Complainants sent notice on 16.11.2012 through their advocates but opposite parties failed and neglected to deliver the possession.

The opposite parities by filing evidence on affidavit have stated that the complainants never paid any rent in favour of them and question of determination regarding tenancy of the complainants is not fall within the purview of this Ld. Forum rather it is within purview of Civil Court having jurisdiction. The opposite parties also stated that the complainants failed to deposit any documents and/or papers regarding establishment of their tenancy right including rent bill in favour of complainants issued by them. The complainants never vacated their possession on 16.11.2012 as per agreement and the multistoried building almost completed.  The opposite parties further stated that the alleged agreement is not valid in the eye of law and it is established law of the county that more than one person cannot be considered as proprietor of any firm and proprietorship business should be run by a single person whereas the complainants are claim to be the proprietor of ‘Santi Medical’ which is not acceptable in the eye of law.

The complainants at the time of argument have argued that on 16.11.2012 the opposite parities entered into an agreement with Santi Ranjan Das, Miss Sima Das and Miss Soma Das. In the agreement it was settled between the parties that opposite parties were hand over one shop room measuring 318 Sq ft and one toilet measuring 18 Sq ft. In the ground floor at the same position and existing form of the existing shop room having frontage of 8½ ft within the proposed multi-storied building in favour of the complainants after completion of plaster, colour work, flooring, electrical points, water connection etc. of said shop room without any cost of charges. It was further settled between the parties that opposite parties were agreed to pay Rs.5000/- only per month to the complainants as compensation for the loss of business sustained by the complainants during the construction work of the proposed multistoried building. The opposite parties further argued that in the said agreement it was also settled that the opposite parties handed over the possession of the said new shop room as ownership basis and that shop room will have to registered in favour of the complainants within ten months from the date of vacating of their occupied portion, failing which the opposite parties shall pay the compensation amounting to 03 times i.e. Rs.15,000/- per month for next eight months and compensation amount up to 05 times i.e. Rs.25,000/- per month till hand over of the new shop room to the complainants.  The complainants argued that opposite parties after obtaining building plan sanctioned by the Uttarpara Kotrung Municipality constructed the proposed multistoried building and the same building has already been completed. The complainants several times requested the opposite parties to hand over the possession of the complainant but opposite parties did pay any heed to the request of the complainant.  The opposite parties stopped to pay the compensation for loss business i.e. Rs.15,000/- per month since, January, 2014 and Rs.25,000/- per month from April, 2014.

The opposite parties argued that by way of registered deed of conveyance dated 10.8.2011 purchased the suit property being all that piece and parcel of bastu land measuring more or less three cottahs together with about fifty years old cement flooring two storied pucca building  having its covered area more or less 1790 Sq ft in the Mouza-Kotrung, J.L. No.8, comprised in C.S. Dag No.11 under khatian No.722, R.S. Dag No.1116/5540, having municipal holding No.128, BBD Road, within the ambit of Uttarpara-Kotrung Municipality.  After purchase of the said property the opposite parities decided to construct multistoried building over the schedule property after demolishing the old structure and for such purpose offered the said Lakshmi Rani Das, since deceased to vacate the shop room and accordingly the said Lakshmi Rani Das allowed some legal heirs to enter into an agreement on her behalf accepting the offer of the opposite parties.  The complainants being the representative of the original tenants of Lakshmi Rani Das.  On 16.11.2012 the complainants entered into an agreement with the opposite parties to get back the constructed shop room measuring about 318 Sq ft. along with one toilet measuring 18 Sq ft on the ground floor. 

The opposite parties argued that the complaint is bad for mis-joinder of parties.  First of all the proceeding is not maintainable on the point of mis-joinder of parties.  When the opposite parties purchased the said premises, the tenant was Lakshmi Rani Das and the tenancy was for purely commercial purpose as the tenant was running a medicine shop under name and style of “Santi Medical”.  But at the time of agreement the signatories were Santi Ranjan Das, Miss Sima Das and Miss Soma Das and they signed the agreement as tenant.  Therefore, although they did not have the right to sign the agreement but since the complainant misleads the opposite parties and forced to accept them as tenants. The complaint is not maintainable as the agreement in question is an agreement simpliciter without consideration entered for providing its space for reconstruction and accordingly, no service to be provided by the opposite parties and as such complaint is not maintainable. That the agreement in question is an unregistered document and accordingly, it cannot be enforced due to its inadmissibility in the eye of law and as such the claim of the complainant cannot be given. There is plethora of cases which has firmly laid down that under the proviso to Section 49 of the Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose.  However, in order to admit such document even for collateral purpose, the document so tendered must be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, without which, such document cannot be received in evidence unless duty and penalty are paid under Section 35 of the Stamp Act.  Accordingly the complainants are not entitled for the relief as prayed for.

After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainants being the owner of business establishment namely ‘Mondal Studio’ entered into an agreement on 16.11.2012 to develop the plot of land on which the complainants performing their business. It is crystal clear from the agreement dated 16.11.2012 that opposite parties are in obligation to abide by terms and conditions of the agreement. The prayer of the complainants is in accordance with the terms and conditions of the agreement dated 16.11.2012. So the opposite party cannot raise any questions regarding the tenancy of the complainants in respect of land and the business is of commercial purpose. The complainants tried their level best to get the impugned shop room as per agreement from this opposite party but till date the opposite party could not comply the terms of the agreement dated 16.11.2012 to this complainant for which the complainants getting no alternative filed the instant complaint before this Forum praying directions upon the opposite party. After the completion of the multistoried building the opposite party cannot go beyond the agreement in respect of delivery of possession of the shop room to these complainants in accordance with the terms and conditions as envisaged in the impugned agreement. It is a bare instance of deficiency of service on the part of the opposite party of promoter/ developer.

The Supreme Court has laid the confusion to rest in it’s judgment in Bunga Daniel Babu v. M/s Sri Vasudeva Constructions & Ors. The Supreme Court has held that since the landowners, when they enter into Collaboration Agreement, have no control over construction, do not participate in the business and are only entitled to a share in the constructed area, the landowners are consumers under the Act. This is a welcome decision of the Supreme Court for the victimized landowners, because it will ensure that the landowners are benefitted by the speedy and cost effective justice delivery system of the consumer forums.

Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting the delivery of possession of the shop room as per agreement and the deed of conveyance executed & registered in their favour. Since the landowner i.e. developer did not take appropriate steps for execution of deed of conveyance in favour of the complainants within the time period as per terms of the agreement, it has caused tremendous mental agony and pain to the complainants. However, since the agreement complainants are awaiting for a prolonged period and compelled to prefer the recourse of this Forum for getting the schedule mentioned shop room delivered & registered so they suffered loss of business for indefinite period which they are entitled to compensation from the opposite party.

Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party for non delivery, execution & registration of the impugned shop room by adducing cogent document/evidence so the prayer of the complainants are allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party in respect of delivery, execution & registration by deed of conveyance for which the opposite party is liable to pay compensation.

ORDER

 Hence, ordered that the complaint case being No.94/2016 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.8000/- to be paid by the opposite party.

The Opposite Party is directed to deliver the shop room and to execute and register the deed of conveyance in favour of the complainants in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainants may get the deed executed through the machinery of this Forum.

The opposite party is directed to pay a sum of Rs.2,50,000/- for loss caused in the business during the period of construction and delay in delivery of possession.

The opposite party is directed to pay compensation amounting to Rs.30,000/- to these complainant for mental pain and agony within the time framed.

 At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.