FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The case of the complainant is that OPs 1 to 3 are the owners of a plot of land measuring about 03 cottahs 12 chittacks 0 sq ft along with partly two/three storied building occupied by the tenants situated at KMC Premises No. 4, Gouri Shankar Ghosal Lane, Kolkata-700011. OPs 6 & 7 are the partners of OP-5 M/s Dynasty Engineers Pvt. Ltd. OP-4 M/s Plan Swift Architecture has been engaged in construction of building in the property fully mentioned in the schedule of complaint petition. Landowner Rabindra Nath Sikdar, since deceased intended to demolish the old building and to construct a multistoried building thereon. Rabindra Nath Sikdar, since deceased entered into a Development Agreement with OPs 6 & 7 being the partners of OP-5. He also executed a registered Power of Attorney in favour of OP-5. Subsequently, on the strength of MOU dated 05.02.2019, the OP-4 has been authorized to act as Developer to construct a multistoried building. Landowner and Developer also executed and registered a Declaration for Non Eviction of Tenants from the Old building. Complainant was a tenant under Rabindra Nath Sikdar, since deceased on the ground floor of the building measuring carpet area of 93 sq. ft. In terms of the registered Agreement dated 08.05.2013. The developer shall transfer total 88 sq. ft. of carpet area on the ground floor to the complainant and shifted him in an alternative accommodation till construction is completed. In the agreement, it was further provided that the possession of the room shall be handed over to the complainant within a period of 24 months from the date of agreement. OPs failed to deliver possession of the room within the stipulated period. Hence, the complainant has filed the complaint seeking a direction to the OPs to hand over the possession of 88 sq. ft. carpet area on the ground floor of the multistoried building, to handover completion certificate, to pay Rs. 2,00,000/- towards injuries caused, to pay Rs. 2,34,500/- towards litigation costs.
OPs 1 to 3 being the legal heirs of erstwhile landlord Rabindra Nath Sikandar, since deceased contested the case by filing a joint WV. The specific case of answering OPs is that OP-4 has not been allowed to construction work in the subject premises. Tenants did not pay entire agreed consideration amount. Developer deprived the erstwhile landlord. As such, the Power of Attorney given to Developer has been terminated vide letter dated 06.09.2016 and it has no force on the demise of Rabindra Nath Sikandar. The answering OPs are not responsible for non handover possession of the room to the complainant. A title suit is pending before the Civil Judge 1st court (Jr. Div.) Sealdah. There is no deficiency in service and unfair trade practice on the part of the answering OPs and prayed to dismiss the complaint.
OPs 4 to 6 have also filed their WV containing inter alia that the consumer case is barred by limitation and the complainant filed the consumer case suppressing the material facts. The specific case of the answering OPs is that OP-4 has not been allowed to do any work in the subject premises by the erstwhile landlord, since deceased and his legal heirs as well as some of the tenants. Complainant has not paid the entire agreed consideration in terms of the agreement dated 05.02.2019. Erstwhile landlord has occupied major portion of the developers allocation and transferred the possession to third party by executing Deed of Gift in controversion of the terms of the development agreement. The OPs 1 to 3 and tenants created hinderers in completion of the finished work of the subject building and not allow to sell the developers allocations. The erstwhile landlord cancelled the Development Agreement as well as Power of Attorney. As a result, the answering OPs lost their authority to execute and register deed of conveyance in favour of the tenants. There is no deficiency in service and unfair trade practice on the part of the answering OPs. There is no intentional latches on the part of the answering OPs who are victims and are also suffering financial loss and on account of acts and omissions on the part of the land owners as well as tenants themselves. Accordingly, the answering OPs have prayed for dismissal of the complaint.
Despite service of notice, OP-7 did not turn up to contest the case by filing WV within the specified period of the CP Act, 2019. Thus, the case runs ex parte against the OP-7.
We have perused the evidence of the complainant coupled with material available on record. Despite several opportunities given to the answering OPs they did not file their E/chief. We have heard the Ld. Advocate for the complainant. Neither the answering OPs nor their Advocate participate in the final hearing.
The fact that the complainant was a monthly tenant under the predecessor of the OPs 1 to 3 in respect of a room measuring carpet area of 93 sq. ft. on the ground floor of Premises No. 4, Gouri Shankar Ghosal Lane, Kolkata-700011. The predecessor of the OPs 1 to 3 were intending to demolish the old building and construct a multistoried building in place of it, a Development Agreement dated 24.06.2011 was executed with the OPs 6 & 7 being the partners of OP-5 M/s Dynasty Engineers Pvt. Ltd. OPs 6 & 7 being the Power of Attorney holder of Rabindra Nath Sikar, since deceased executed and registered a Declaration to the effect that he will not evict the tenant and also undertake to provide them with identical area in and around the said premises by a mutual arrangement. It is not disputed before us that Tripartite Agreement dated 08.05.2013 was executed between Rabindra Nath Sikdar, since deceased, complainant and OP-5. By virtue of the said arrangement, the third party shall provide a necessary financial assistance for shifting the second party/tenant till reallocation of a new space in the proposed multistoried building. It is further mentioned in the said tripartite agreement that the 2nd party shall have to pay monthly rent of the tenanted room after receiving its possession and/or alternatively the tenant shall purchase the room on payment on construction cost of Rs. 1,400/- per sq. ft.
The Issue which falls for our consideration is, as to whether in the facts and circumstances, the complainant who was a tenant would be a consumer within the meaning of Section 2 (7) of the CP Act, 2019 and the complaint filed by him maintainable?
The Hon’ble NCDRC in a number of judgments in the similar facts and circumstances has held that the tenant would be a consumer within the meaning of section 2 (1) (d) of the CP Act, 1986 and complaint filed by him maintainable. The Hon’ble Commission reached to the conclusion that surrender of the tenanted shop by a respondent to the petitioners was consideration. Failure to provide shop measuring 250 sq. ft. by the OPs was deficiency in service. Sinew Developers Ltd. & Ors. Vs. Madhav Rajaram Outurkar reported in (2008) CPJ 215 (NC) dealing with the same question.
The complainant is seeking relief, as against the OPs/ Builder Developer on the basis of the Development Agreement. No doubt, in the development agreement, there is a provision that the tenants shall be allocated from the Developer’s Allocation. The complainant has not filed this complaint, as against the OP-5/Builder/Developer in their capacity as landlord, and therefore, relationship of landlord and tenant, which previously existed, is immaterial. Under the registered declaration dated 17.04.2013 and MOU dated 05.02.2019 a new relationship came into existence as the purchaser and Builder/Developer. As per MOU, the OP-4 M/s Pan Swift Architecture, a proprietorship firm will complete the multistoried building within 06 months and also provide possession to the tenants fully mentioned in the schedule-D of the MOU. The relationship of landlord and tenant got subsided/vanished/extinguished on execution of Development Agreement and MOU and a new relationship got blossomed in place of old relationship of landlord & tenant. Developer got possession of the tenanted room from the complainant. The Hon’ble NCDRC in RP No. 2589-2590 of 2008 decided on 24.04.2012 in Jagdishbhai M Sneth Alias Soni vs. Surbih Realtors India Pvt. Ltd. has taken the same view as discussed above. Thus, we are of the view that the complainant is a consumer under Section 2 (7) of the CP Act, 2019 and the complaint filed by the complainant is maintainable. The OPs have failed to render services to the complainant. Complainant has not produced any rent receipt to establish that he incurred Rs. 2,34,500/- as rent for his alternative allocation. It is not understandable, as to how the complainant claim such amount as rent.
Keeping in view of the facts and circumstances of the present case, we allow the complaint in part with the following directions:-
- OPs 1 to 6 are hereby jointly and severally directed to handover the possession of a room measuring an area of 88 sq. ft. on the ground floor of the multistoried building situated at KMC Premises No. 4, Gouri Shankar Ghosal Lane, Kolkata-700011 fully mentioned in the schedule of the complaint petition in terms of Clause No. 08 the agreement dated 08.05.2013
- OP-4 is directed to pay Rs. 5,000/- (Rupees five thousand) only to the complainant towards litigation costs.
- OPs 1 to 6 are directed to comply the aforesaid order within 90 days from the date of judgment i.e. they shall pay Rs. 5,000/- (Rupees five thousand) only per month to the complainant towards compensation of damages till the possession is handed over to the complainant.
The rest prayer of the complainant is rejected .
Thus, the consumer case is disposed of on contest against the OPs 1 to 6, and also dismissed ex parte against the OP-7.
Copy of the judgment be provided to the parties as mandated by the CP Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
File be consigned to the Record Room along with a copy of this judgment.
The case could not be decided within the statutory period due to heavy pendency of cases and pandemic of Covid-19.
