Order-16.

Darte-10/08/2015.

In this complaint Complainant M/s. Super Agro India Pvt. Ltd.by filing this complaint has submitted that complainant is a tenant for the last 37 years under the op no.2 the land owner of the Premises No. 22B, Satchasi Para Road, P.S.-Cossipore, Kolkata – 700002, Dist- North 24 Parganas.Subsequently the owners of the Premises entered into a Development Agreement with the Developer by an Agreement dated 22.11.2007 and subsequently on 01.09.2012 complainant as a purchaser entered into a Supplementary Agreement for purchasing a commercial space measuring about 1300 sq. ft. more or less for the total consideration of Rs. 16,50,000/-.

Fact remains that op no.5 is the Developer Firm namely M/s. Shivaco and also the lawful constituted attorney of the Land Owner op nos. 1 to 4 who developed and constructed the land mention in the Schedule-A and built up a multistoried building comforting server ownership flat apartment morefully mentioned in Schedule-B.Complainant being approached by the op no.5 entered into an agreement for sale for one commercial space situated on the ground floor of the building measuring super built up area 1300 sq. ft. more or less consisting of rooms, bath and privy situated at the KMC Premises No. 22B, Satchasi Para Road, P.S.- Cossipore, Kolkata – 700002, District- North 24 Parganas and Developer agreed to sale and the purchaser agreed to purchase all that piece and parcel of that flat lying on the ground floor at a consideration of Rs. 16,50,000/- free from all encumbrance to be paid by the complainant to the op no.5 as per terms of agreement for Sale and requested to the op nos. 1 to 5 to register the sale deed but even after receiving 79 percent of the total consideration the op nos. 1 to 5 did not do the same in favour of the complainant and also did not complete the whole work of the building.

That at the time of making agreement op nos. 1 to 5 assured the complainant repeatedly that in a very short period they will transfer the said commercial space because complainant’s business place was shifted due to the said development of the land.But after completing 29 months also op nos. 1 to 5 not completed the registration procedure for which complainant has been facing many and different type of trouble and for execution of the said sale deed the complainant tried to contact and requested the op on several occasions but instead of that, they did not execute the sale deed after receiving the balance amount and for which complainant has suffered immense loss, mental pain and agony and also financial loss to the tune of Rs. 3,50,000/- for which ops are liable to pay compensation and to execute the sale deed and at the same time op has prayed for compensation for harassment and execution of sale deed.

On the other hand op nos. 1 to 5 by filing written statement submitted that one Amaresh Mishra was a tenant under Late Nrishigha Chandra Mondal at the Premises No. 22B, Satchasi Para Road, P.S.-Cossipore, Kolkata – 700002, District- North 24 Parganas since 1980 at a monthly rental under said Nrisingha Chandra Mondal and after demise of Nrisingha Chandra Mondal, the right, title and interest of the said property vested on all his sons and daughters and his wife according Hindu Succession Act.Accordingly 4 sons named Krishna Chandra Mondal, BishnupadaMonda, Sri Subal Chandra Mondal and Nimai Chandra Mondal, 4 daughters named Arati Biswas (Mondal), GouriMondal, Anima Biswas (Mondal) and Aloka Mondal and his widow wife Smt. Saraju Mondal became the owners of the said property left by Nrisingha Chandra Mondal, each having one-ninths share in the said suit property.Subsequently Aloka Mondal died on 05.02.1996 leaving her husband and a son Kaushik Mondal..

The said Amaresh Mondal became a family member with the present ops and he is fully aware of the members of family of the op nos. 1 to 4.Subsequently three sisters and heirs of Aloka Mondal executed a Deed of Gift in favour of their four brothers i.e. 4 sons of Nrisingha Chandra Mondal.Thus each brother got two-ninths share of the said property when Saraju Mondal became the owner of one-ninths undivided share in the said property.

Subsequently 4 brothers entered into an agreement with the op no.5 M/s. Shivaco, a partnership firm for development agreement was executed on 18.05.2008.But inadvertently in the said agreement name of SarajuMondal was not mutated.Subsequently a supplementary agreement was entered into between Smt. SarajuMondal and the developer and all the owners executed Power of Attorney in favour of Nimai Chand Mondal one of the owners and one Susanta Bose.Kolkata Municipal Corporation also admitted the names of widow and 4 sons of Late Nrishingha Chandra Mondal and accordingly mutated their names.

Initially the agreement was entered into between the sons of Late Nrishingha Chandra Mondal and the developer with the tenant Amaresh Mishra for allowing him 400 sq. ft. from mezzanine floor and 600 sq. ft. on the ground floor from undivided land while the promoter entered into agreement to sale out 300 covered area on the ground floor before the building plan was sanctioned.But the proposed mezzanine floor was not allowed by KMC.Naturally the said agreement failed and thereafter the tenant Amaresh Mishra prepared a separate agreement for 1300 sq. ft. super built area and got the signature of 4 brothers along with a partner of the developer without allowing them to read the same meticulously and without serving any copy of the same.When he was asked to get the signature of Saraju Mondal, they refused to have any agreement with said Saraju Mondal on the ground floor that she cannot get any share of the said property.In fact there was no tenant under the present owners of the land under the name and style M/s. Super Agro India Pvt. Ltd., the present owners do not admit that they ever issued any rent receipt in the name and style M/s. Super Agro India Pvt. Ltd. the present complainant.Naturally the present owners have no relationship between the complainants as tenant and moreover Joy Mondal is not a signatory to the alleged agreement.

Moreover complainant is a private limited company and op no.1 Joy Mondal is not a signatory of the agreement upon which the present complaint case has been moved.Op no.1 never accepted a single paisa from the complainant and also never admitted that the complainant is a tenant under him.So, all the allegations are made against op nos. 1 to 4 are false and fabricated.

Moreover it is submitted that op no.5 never entered into any agreement with a private limited company being juridical person.But there was an agreement between Amaresh Mishra and not with M/s. Super Agro India Pvt. Ltd. and it is further denied that op no.1 never entered into any agreement with the complainant because he is a son of Krishna Chandra Mondal and at the same time it is alleged that op no.5 never consulted with complainant and ever accepted and assented with the offer to sell any commercial space on the ground floor of the building having 1300 sq. ft. super built area.Op no.5 denied that he would sale any flat on the ground floor to the complainant and it was only an agreement between Amaresh Mishra and the promoter and there is not relationship between the parties.Moreover Saraju Mondal has not demarcated her own portion out of the joint property.Naturally she will not register her own portion in favour of Amaresh Mishra, a tenant without having an agreement.

Further ops ever assured the said judicial person that in a very short period, they will transfer the said commercial space in favour of the complainant and that without making Saraju Mondal a party to the agreement for sale, the present owners cannot execute any sale deed in favour of Amaresh Mishra until the property is partitioned between Saraju Mondal and 4 sons, the executants of the agreement and it is specifically alleged that the entire complaint is false and fabricated and the present suit is totally in civil nature and cannot be tried in the Consumer Forum and at the same time Forum cannot compel a party Saraju Mondal to execute any deed in favour of any person without having any contractual relationship between them and prayed for dismissal of this case.

Decision with reasons

On proper appreciation of the complaint and the written version and also considering the materials as produced by the parties, it is clear that the present complainant is a private limited company and complainant has prayed for relief in respect of commercial rooms.But from the original agreement in between the 4 persons i.e. landlords namely Krishna Chandra Mondal, Bishnupada Monda, Sri Subal Chandra Mondal and Nimai Chandra Mondal and also the tenant M/s. Super Agro India Pvt. Ltd. partner Amaresh Mondal and Developer it is found that complainant is still a tenant under the landlords from the said agreement dated 22.11.2007 it is found that practically the agreement was in between the four landlords op nos. 1 to 4 and the complainant including the Developer as Developer signed and from the said agreement it is clear that as because developer entered into agreement with the landlords and for shifting the tenant from the said old building, this agreement was actually made in between the complainant and the landlords.In first part of the said agreement, it is clear that landlord from his own allocation shall have to give 600 sq. ft. carpet area and 400 sq. ft. carpet area on the ground floor and first floor and for that Rs. 9 lakhs shall be paid by the complainant to the op nos. 1 to 4 and it is specifically stated that the said tenanted portion is for commercial purpose and at the time of shifting from the said old tenanted building, complainant admitted that they are releasing the possession to the landlord for the purpose of construction and after construction, the tenant shall be replaced in the said tenanted area under the landlord.

So, considering that original agreement, it is clear that it was an agreement between the complainant and op nos. 1 to 4.But truth is that Saraju Mondal is also one of the landowner with whom no deed is executed and Saraju Mondal is not made a party in this case by the complainant.Considering the above fact, it is clear that complainant is a tenant under the op nos. 1 to 4 and Saraju Mondal but that Saraju Mondal is not made a party and as per agreement after construction landlord shall have to hand over that 1000sq. ft. carpet area that is tenanted portion out of the allocation of the landlords that is op nos. 1 to 4 and Saraju Mondal.

So, it is a contract in between the tenant and landlord and no doubt the complainant’s claim is that he is a tenant.But no doubt it is proved that complainant is not a tenant under op no.5 the Developer and truth is that Developer signed in the said agreement in view of the fact already landlords entered into Development Agreement with the Developer op no.5 for which op no.5 signed in the said agreement in between the landlord and the tenant dated 22.11.2007 and after considering that agreement, it is found that Developer has nothing to do with the agreement but he only signed as Developer because he entered into development agreement with the landlord and on the basis of that agreement, in fact Developer had no liability to do anything.But only after construction the landlord along with Developer shall have to hand over the tenanted portion out of the allocation of the landlords and after receipt of the tenanted portion by the complainant what the complainant shall have to do that has been noted but not more than that.

So, considering that agreement it is clear that it was not an agreement for sale and in respect of any Housing Construction there is no agreement in between the complainant and op nos. 1 to 4 including that SarajuMondal who is not made a party in this case.

Fact remains that the present complainant is a tenant and had been possessing a commercial portion and his tenancy is in respect of commercial room.For the sake of the argument if it is accepted landowners agreed to sell the said tenanted portion to the complainant, in that case such a sale does not come under the purview of the definition of Housing Construction.But as per settled principal of law it is a simple agreement to sale simplicitor in between the tenant and the landlords that means landlord is already owner of the said portion as when they got it in their allocation and tenant has their right in respect of that 1000 sq. ft. area as tenant and his right to get such possession as tenant from the landlord is legal right and to continue his right as tenant and at this juncture this tenant complainant agreement to sale shall be treated as a resale in the eye of law in respect of commercial rooms.

So, such a transaction cannot come under the purview of the definition of the Housing Construction.Most interesting factor is that the Ld. Lawyer for the complainant referred one ruling reported in the judgement passed in November 05, 1993 by Hon’ble Supreme Court in connection with a case (Lucknow Development Authority –Vs – M.K, Gupta and tried to convince that the present complainant is a consumer.But anyhow this judgement was placed without proper reason because in the said judgement, Hon’ble Supreme Court has defined the very meaning of ‘service’ and we are aware of the fact that what type of service shall come under the purview of definition of service after studying the judgement long ago and at the time of preparing judgement, we have gone through the ruling and we have gathered that in fact the reason for referring this ruling is not at all substantiated by the Ld. Lawyer.Though this Forum put many questions why this ruling has been submitted, but from the argument we find that complainant’s Ld. Lawyer has tried to convince that the present transaction is not a sell simplicitor but the agreement to sale is in respect of house construction.But we have gathered that the present mode of sell does not come under the purview of Housing Construction.But it is not sell simplicitor in respect of a commercial rooms and complainant is also a private company and at the same time complainant is the tenant under the op nos. 1 to 4 and another one Saraju Mondal.

So, in the eye of law if tenant enters into agreement for sale with the landlord in respect of purchase to the tenanted portion, in that case such a transfer treated is not as sale for of Housing Construction.When it is sale simplicitor complainant’s only relief may be to go Civil Court for specific performance of contract.At the same time sale in respect of domestic flats for housing purpose is only entertainable by this Forum.At the same time it is proved that another agreement upon which complainant has relied upon is not at all given them any fresh right in view of the fact the tenanted portion is part of that agreement.

Further fact is that in the said agreement dated 25.06.2012 complainant’s status is noted as tenant in respect of 1000 sq. ft. and further 300 sq. ft. is added, but for that reason it shall not be treated as new contract in between the parties in view of the fact in the said agreement, it is specifically noted that it is a part of the first agreement that means it is the previous contract in between the landlord and tenant and it has become part of that previous agreement that means it is an agreement in between the landlord and tenant in respect of the commercial room and admittedly complainant is a private limited company who has been running their commercial business and in view of the above fact and also considering the definition, we are convinced that complainant is not a consumer under the landlords, not even under the present Developer.At the same time as because those flats are part of commercial flats what is specifically mentioned in the said agreement and when complainant has admitted in his complaint that they run their business from rooms and their company is a private limited company, the present complaint is not tenable and complainant is not a consumer and the disputed room/flats are of commercial room for which this transaction cannot be treated for domestic purpose and the contract in between the parties is in respect of commercial goods (flats).

In the light of the above observation, we are inclined to hold that the present complainant is neither a consumer, nor the present dispute is a consumer dispute in the eye of law.At the same time the present agreement in between the parties is nothing but an agreement for sale simplicitor.

In the result, complaint fails.

Hence, it is

                             Ordered

That the complaint be and the same is dismissed on contest with cost of Rs. 10,000/- and that Rs. 10,000/- shall be paid to this Forum by the complainant within one month from the date of this order.

Penal action shall be started against the complainant for not depositing of the said amount of Rs. 10,000/- and if it is not paid within one month, in that case, 9 percent interest p.a. shall be assessed till full satisfaction of the said dues.