This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainants Smt Bithika Mondal & Renuka Mondal.

The case of the complainants’ in short is that the complainants were the tenant under the opposite parties in respect of a shop room (Mondal Studio) 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 (Photo 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 the shop room and opposite parties agreed to give the peaceful vacant possession to the complainants on ownership basis in the same position i.e. 318 Sq ft in the ground floor as shop room with latrine and privy 18 Sq ft altogether and road frontage 8 ½ ft. 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 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 March, 2015 which is due to be paid upto may, 2016.  The opposite parties are also due to pay Rs.25,000/- per month from March, 2015 though it was mentioned in para-5 of the agreement. So, the opposite parties have defaulted to make payment of abovementioned amount to the complainants.

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 term 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.25,000/- for harassment, to pay arrear amount of Rs.5,37,000/- and also 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 the 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 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. These opposite parties further submit that it is established law of the country 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 claiming to be the proprietor of ‘Mondal Studio’ which is not acceptable in the eye of law.

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 Complainants Bithika Mondal & others are ‘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 Bithika Mondal & others are ‘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 OP, as the complainants being the tenants were running business in the schedule mentioned place 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 complainants and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.5,92,000/- for loss sustained by the complainants 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 case of the complainants is that they entered into an agreement with the opposite parties for making the multistoried building on 16.11.2012 with the terms and conditions it was stipulated and settled that the complainants would vacate the possession of the shop room to be agreed to give the claimants to vacant possession on ownership basis in the same position i.e. 318 sq ft in the ground floor ( photo shop room) with 18 sq ft latrine and privy as per the said agreement dated 16.11.12 moreover the opposite parties also agreed to give road frontage of  8 ½ ft within the proposed multistoried building in favour of the tenants after completion of plaster, colour work, flooring electrical points, water connection etc of the said room free of cost of charges. As the opposite parties are not completing the remaining small works of the said ground floor shop room inspite of repeated requests by the claimants and did not handover the possession of the shop room and the privy to these complainants. On the contrary the shop room of the petitioners is closed since the date of the agreement so they are deprived of the income accrued from the photo shop. Moreover as per agreement at point No.4 page 3 of the agreement it was settled by and between the parties that the owner/opposite party was agreed to remove the existing furniture and shall install the same in newly constructed shop room at the same position. And the owner / opposite party was agreed to handover the possession of the said new shop and have to be registered in favour of the complainants within 10 months from the date of vacating their occupied portion failing which the owners /opposite parties shall pay the compensation amounting to 03 times i.e. Rs.1500/- per month for next 8 months and compensation amount upto 05 times i.e. Rs.25000/- per month till handover of the new shop room to the complainants. The complainants further assailed that there were 3 shop rooms sanctioned by the municipality but physically it appears that the opposite parties have constructed four shop rooms in place of three shop rooms violating the said sanctioned plan. That the opposite parties also stopped to pay the compensation of loss i.e. Rs.15000/- per month since January, 2014 and Rs.25000/- per month from April, 2014.  

The opposite party in his argument stated that complainants are not the consumers within the meaning of Section-2(1)(d) of the C.P. Act, 1986.  The opposite party stated that the agreement in question was for delivery of shop room which is to be used for commercial purpose.  It appears from the cause title of the complaint petition that both the complainants are staying in different places but they are claiming that income of the shop room is the only income for both of them.  The complainants failed to submit the trade license of the Studio under the name and style of ‘Mondal Studio’.  In the cross examination the complainants admitted that they are the employees in the business and there is no partnership agreement but it is a proprietorship business.  So, they have no right to file the present proceeding.  Further the opposite party stated that 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 as such the complaint is not maintainable.  The complainants herein provided its pace to get the reconstructed space and opposite parties agreed to do the same without any consideration money.  So, there is no question of buying or hiring any service by the complainants against any consideration or there is no question of payment or partly payment or promised for payment for the person who buys or hires the service.  The agreement in question is an unregistered document and accordingly it cannot be enforced due to its in admissibility in the eyes of law and as such the claim of the complainant cannot be given.  The opposite party preferred the judgment of Supreme Court of India in Laxmi Engineering Works Vs. PSG Industrial  Institute, 1995 Law Suit (SC) 474, Avinush Kr. Chauhan Vs. Bijoy Krishna Mishra, 2008 Law Suit (SC) 1861 and others in support of their claim.  Lastly the opposite party assailed that complainants are not consumer under C.P. Act, 1986.  So, the opposite party are not duty bound for the service within the ambit of Section-2(1)(o) and they are not deficient in service within definition of ‘deficiency’ as mentioned in Section 2(1) (g) of the C.P. Act, 1986.  As such the complainants are not entitled for the reliefs prayed in the complaint petition.

The complainants are the mother and daughter and after the demise of mother namely Renuka Mondal, complainant No.2 has been substituted by her legal heirs vide order No.16 dated 28.3.2018. Since then the complainants filed amended complaint petition on 19.4.2018 which is accepted.

It appears from the agreement dated 16.11.2012 in between the complainants and the opposite parties that the complainants are the tenants of the schedule mentioned place where the impugned flats are constructed and running their business namely Mondal Studio. The opposite party agreed to handover 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 81/2 ft within the proposed multistoried building in favour of the second part i.e. the complainants without any cost or charges. The first party shall complete the total construction i.e. plaster, colour work, flooring, electrical points, water, connection etc of the shop room to be handed over to the second party. The first party i.e. the opposite party shall pay Rs.5000/- per month in favour of the second party as compensation for the loss of business to be incurred by the second party during the construction of work of the proposed multistoried building. The first party shall at their own cost remove the existing furniture and shall reinstated the same in newly constructed shop room at the same position and the existing form. The first party shall handover the possession of the above mentioned new shop room as ownership basis and that new shop room will have to registered in favour of the second part within 10 months from the date of vacating of their occupied portion, failing which the first party shall pay the compensation amounting to three times that is Rs.15000/- per month as mentioned hereinabove for next 8 months and compensation amount upto five times that is Rs.25000/- and compensation amount  will continue till the handover of the new shop room to the second part. The agreement shall be binding upon both the parties herein and their respective legal heirs, successors, executors, administrators and /or assigns.   

 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 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 and the deed of conveyance executed in their favour. Since the landowner as well as developer did not take appropriate steps for execution of sale deed in favour of the complainants within the time period from the date of payment 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 for 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 of possession, 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.113/2016 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 further directed to pay a sum of Rs.2,40,000/- for loss of earnings after the expiry of time period of completion of building till date  as per agreement.

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