This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant Smt. Anu Rani Paul.

The case of the complainant’s in short is that the complainant was the tenant under the opposite parties in respect of a shop room measuring about 140.25 Sqft. at ground floor in holding No.128 B.B.D. Road, under Uttarpara-Kotrung Municipality, Dist.-Hooghly. An agreement was made between the complainant and opposite parties on 16.11.2012 for construction of multistoried building.  The complainant gave up her possession (shop room) to the opposite parties and vacant the possession of the shop room for construction.

In the agreement dated 14.12.2012 it was settled that the complainant vacates the possession of the shop room and opposite parties agreed to give the peaceful vacant possession to the complainant on ownership basis in the same position i.e. 140.25 Sq ft (55.25 Sq ft for shop room and 18 Sq ft for kitchen) 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 complainant repeatedly requested the opposite parties to complete the shop room and hand over the possession of the shop room and the kitchen but the opposite parties did not hand over the possession. The complainant suffered a loss of income of Rs.4,32,000/- in total i.e. Rs.9000/- per month.

The complainants sent notice on 25/26.11.2016 to the opposite parties through his Ld. Advocate for delivery of the possession (shop room) along within 07 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 complainant filed this case with a prayer to direct the opposite parties to complete the construction work 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 litigation cost of Rs.10,000/-.

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 the complainant is not the tenant under them and the complainant 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 here that the complainant failed to deposit any documents and/or papers regarding establishment of their tenancy right including rent bill in favour of complainant issued by the opposite parties.  These opposite parties further submit that complainant never paid any amount in favour of the opposite parties, so the instant complainant shall not come under the purview of Consumer protection Act.  The complainant is running her business till date and she has also separate source of income within the area of Hindmotor.  Therefore, it is needless to mention here that the complainant filed the instant case without clean hand.

Both sides files evidence on affidavit and written notes of argument which are taken into consideration while passing final order.

ISSUES / POINTS   FOR   CONSIDERATION

1). Whether the Complainant Smt. Anu Rani Paul is a ‘Consumer’ 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 Complainant?

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

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 Complainant Smt. Anu Rani Paul is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the tenant is running business in the schedule mentioned property and entered into agreement with the opposite party to construct multistoried building and the complainant will get her share as per agreement, so she is entitled to get service from the opposite party as consumer.

(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.4,92,000/- 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 Complainant?

The complainant filed evidence in chief which is supported by affidavit. In this evidence the complainant stated that she was a tenant in respect of the shop room used as Kitchen-cum-sales counter of the oil cakes in the ground floor portion of the above mentioned property.  Be it noted that there are five shop rooms possessed by other four shop room owners to run their respective business since the life time of Monoranjan Das, the original owner. The opposite party No.1 to 3 entered into an agreement with the petitioner in course of making a multistoried building over the said property on 14.12.2012 with the terms and conditions contained therein. In the said agreement dated 14.12.2012 it was agreed that petitioner would vacate the possession of the kitchen and sales counter 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. 55 Sq ft in the ground floor and a kitchen measuring 85 Sq ft totaling 140 Sq ft.  The complainant vacated her possession of the shop room and removed her furniture, utensils etc. as per agreement for giving scope for the construction of the multi-storied building. The opposite party did not complete the remaining small works of said ground floor and inspite of repeated requests they did not hand over the shop room to the complainant.  The complainant runs her business in the open road with temporary polythene cover in very difficult and awkward position.  Her business of oil cakes is hampered to a great extent. The petitioner suffered a loss of income of Rs.4,32,000/- @ Rs.1,08,000/- per year i.e. Rs.9000/- per month.

The opposite parities by filing evidence on affidavit have stated that the complainant never paid any rent in favour of the opposite parties and question of determination regarding tenancy of the complainant is not fallen within the purview of this Ld. Forum rather it is within the purview of Civil Court having jurisdiction. The opposite parties also stated that the complainant failed to deposit any documents and/or papers regarding establishment of their tenancy right including rent bill in favour of complainant issued by them. The complainant never vacated their possession on 14.12.2012 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. In this evidence the opposite parties further stated that the complainant never paid any amount in favour of them.  So, the complainant shall not come under the purview of C.P.Act.  Moreover the complainant is running her business till date and she has also separate source of income within the area of Hindmotor. 

The complainant at the time of argument has argued that she was the tenant in respect of a shop room measuring 140.25 Sq ft (55.25 Sq ft shop room and 85 Sq ft kitchen) at the ground floor in holding No.128, BBD Road under Uttarpara-Kotrung Municipality, P.O.-Hindmotor, P.S.-Uttarpara, Dist.-Hooghly under the opposite parties. The complainant further argued that opposite parties were willing to construct a multistoried building on and over the schedule mentioned property after demolishing the old structure standing thereon. On 14.12.2012 the opposite parities entered into an agreement with Anu Rani Paul.  In the agreement it was settled between the parties that opposite parties were to hand over one shop room measuring 85 Sq ft and 55 Sq ft on the road side 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 complainant 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 hand over the possession of the agreed shop room to the complainant as compensation for the loss of business to be incurred by the complainant during the construction work of the proposed multistoried building.  The opposite party was also agreed to hand over the possession of the said new shop room as ownership basis and that new shop room will have to be registered in favour of the tenant/complainant within 10 months from the date of vacating of their occupied portion.  The complainant on several occasion repeatedly requested the opposite parties to hand over the possession of the shop room but the opposite parties with malafide intention did not pay any heed.  Finding no other alternative the complainant filed this case.

The opposite parties argued that by way of registered deed of conveyance dated 10.8.2011 they purchased the suit property being all that piece and portion of bastu land measuring more or less three cottahs together with about fifty years old cement flooring two storied pucca building  having it 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 Anu Rani Paul, the tenant to vacate the shop room and accordingly the said Anu Rani Paul entered into an agreement with the opposite parties to get back the constructed shop room measuring about 140.5 Sq ft including one kitchen measuring about 85 Sq ft on the ground floor.  That on 2.1.2017 the complainant filed a complaint case being C.C. No.2/2017 against the opposite parties alleging deficiency in service and thereby prayed for a direction upon the opposite parties. The opposite parties contested the proceeding by filing written version and thereby challenged the maintainability of the proceeding and also denied the allegations contained in the complaint. The opposite parties argued that this complaint is not at all maintainable as the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 as the complainant admitted that tenancy was given for family business, which is commercial in nature and in the cross examination it has also been admitted that the business was of oil cake shop which was sold from the premises,  the local people used to purchase from the shop in cash and she also used to maintain the accounts of sale of goods in day to day basis. ‘It is well settled that when the expression ‘commercial purpose’ has not been defined in the act, its common parlance meaning should be given and, according to that, a commercial purpose is that purpose, the object or aim of which is to make profit. “Commercial’ encompasses all business activities.  It means occupied with commerce’.   

The opposite parties also argued that is not at all 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.  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 complainant is 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 complainant being the owner of business establishment namely ‘  Tele Bhaga shop’ entered into an agreement on 14.12.2012 to develop the plot of land on which the complainant performing her business for a long time. That originally Anu Rani Paul was the tenant in respect of one shop room which was used for commercial purpose as Tele Bhaja (oil cake) shop under the name and style of M/s. Frontline in the ground floor portion of the above said property it is reflected from the Xerox copy of documents in respect of rent receipt, trade license & certificate of enlistment of local civic body and electric bills.  So her possession before the construction of multistoried building is undisputed.

 It is crystal clear from the agreement dated 14.12.2012 that opposite parties are in obligation to abide by terms and conditions of the agreement. The prayer of the complainant is in accordance with the terms and conditions of the agreement dated 14.12.2012. So the opposite party cannot raise any questions regarding the tenancy of the complainant in respect of land and the business is of commercial purpose. The complainant tried her 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 14.12.2012 for which the complainant getting no alternative filed the instant complaint petition 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 this complainant 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 complainant is 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 her favour. Since the landowner i.e. developer did not take appropriate steps for execution of deed of conveyance in favour of the complainant within the time period as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the agreement complainant is 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 get compensation from the opposite party.

   Going by the foregoing discussion hence it is ordered that the complainant 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 complainant is 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 complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant 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.02/2017 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.6000/- 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 complainant in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.

    The opposite party is directed to pay compensation amounting to Rs.20,000/- to this 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.